I. Inadequate Access: Two Proposals

II. An Overview of the Individuals with Disabilities Education Act (IDEA).

 A. History and Congressional Findings Two Proposals
 B. Statutory Framework of the IDEA

 A. What is Mediation?
 B. Benefits of Attorney-Mediators
 C. Professional Responsibility

A. Introduction
B. Buckhannon v. West Virginia Department of Health and Human Resources
C. Buckhannon Applied to IDEA

  1. Lay Advocates and Parent Attorneys
  2. Procedural Injustice: Reaching the Agreement
  3. Procedural Injustice: "Actions or Proceedings?

 A. Mediation
 B. Attorney Fees

 The schools need to reach children with disabilities as early as possible because, in later life, they experience extremely high levels of unemployment and poverty. In an often cruel cycle, there is a link between increased poverty2 creating an even greater risk of disability.3 The Individuals with Disabilities Education Act (IDEA)4 is a very important Congressional program in the special education context because it directly involves the provision of services in the classroom. In this program, states that accept federal money must set up procedures to ensure a "free and appropriate public education"5 (FAPE) in a process filled with too much negotiations, meetings, due process hearings, and litigation.6

 The purpose of this paper is to discuss two proposals to alleviate the problems in obtaining a proper placement, which directs the educational progress of a disabled child under the IDEA. The first proposal discusses the voluntary mediation provision of the IDEA and how the process can be expanded and improved through the use of attorney-mediators trained in mediation skills and knowledgeable in special education law to lead the hearings at district cost.7 The other discusses the current structure of the attorneys fees provisions and the prevailing party status needed under the law to obtain them. The proposal is to amend the law, either legislatively or judicially.8

 The struggle for the proper provision of special education services is a fight for the entitlement mandated by Congress with, and too often against, the limited financial resources of states and school districts. In the school year 1999-2000, approximately $78.3 billion were spent nationwide for special education services at all levels to educate disabled children covered under the IDEA.9 This number is misleading because states and the districts have to pick up the lion's share of these expenditures.10 It is estimated that educating these children costs about 2.1 times the money it costs to educate a normal child.11

 Of particular concern is the legal contentiousness of the whole process, creating a "culture of compliance" where disagreements over proper placements to guide the education of children lead to acrimony, which leads to litigation, and thus reappropriating energy and resources away from providing all children a public education.12 Complying with the myriad federal requirements for states and districts is more of a process in following burdensome legal technicalities than it is one of improving student performance.13

 On the other hand, poorer schools sometimes cannot meet the needs of these children because they are already hard hit by teacher shortages and financial woes, and are thus unable to litigate certain issues fully for resolution.14 Worse yet, districts have been criticized across the nation for shirking their responsibilities by throwing children with discipline problems who may have disabilities into the juvenile court system, where the IDEA protections cannot be applied.15

 In addition, Congress has not fulfilled its own promise to the states. At the initial passage of the Education for All Handicapped Children Act (EAHCA) in 1975,16 Congress pledged 40% of the money needed to support these programs, but, to this date, it is only paying for about 150 of the total cost.17 The federal government spent over $33 billion on education in 2000, only $6 billion of which was spent for special education.18 It is ironic that while forcing this largely unfunded mandate upon the states, Congress itself has no compunction in limiting the fees it will pay to plaintiffs' attorneys when it has to foot the bill.19

 Families with lower incomes and limited educations have a harder time dealing with legal problems. According to one study, four-fifths of the civil legal needs of the poor, and up two thirds to three-fifths of middle income persons presently go unmet.20 One liberal estimate claims that at least 70% need but are unable to afford or obtain assistance.21 With all the lawyers schools graduate every year22, there is only one legal aid lawyer or public defender for every 4,300 persons below the poverty line,23 while there is one lawyer for every 380 Americans in the population generally.24 This fact is more startling considering the fact that at least 35 million poor persons are eligible for the legal services legal aid offices can provide.25 With the extremely limited funds these offices have, the attorneys' representations is incomplete because they have to take on many cases that are small in scope, and not cases that require more difficulty.26

 The serious problem of legal access for poorer families is just as true in the special education context. Some studies have shown that as the social and economic backgrounds of families of children with disabilities slide down the scale, the more difficult it is to obtain a FAPE.27 With over 6.2 million children covered under the IDEA currently,28 a growth rate of 30.3% over the last decade,29 that means a significant amount of families who have used or are in need of legal services. The enforcement of the IDEA's provisions substantially is related to how willing the education agency is to comply and how willing the parents are to fight them if they do not, which is due in large part to the wealth of the parents.30 Because of the great expense in even getting the dispute to the due process hearing stage, most disputes never go to hearing and the parents simply withdraw their 31complaint or request.31

 The inadequate access to legal services for lower to middle income families of children with disabilities can be solved by special education attorneys trained in mediation and through a less restrictive definition of "prevailing party" status. This is so because these attorneys can use their knowledge of the intricacies of special education law and mediation skills to bring both sides together by eliciting the necessary facts and issues to ensure a proper placement. This should result in balancing the bargaining power that was previously tilted to the districts' side. As for attorneys fees, though addressed in the 1997 amendments to the IDEA, Congress should reexamine the law and amend it to allow the award to all Individual Education Plan (IEP) meetings and mediation proceedings. Lastly, the current case law on prevailing party status should be reversed if Congress does not make changes on its own.

 A. History and Congressional Findings.

 Two significant court cases provided the impetus for legislatures to pay attention to the needs of children with disabilities. The first was Mills v. Board of Education of D.C.32 In that case, a civil action brought on behalf of seven children of school age who were denied a public education in the District of Columbia school system. The court held that it is a violation of the Equal Protection Clause of the Fourteenth Amendment to not provide the same quality of public education to all other students once it takes on the duty to educate them.33
 The second was Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, decided the next year.34 In that case, the court approved a consent decree entitling disabled children to an education appropriate to their abilities and designed to improve them.35 Both of these cases asserted constitutional grounds for guaranteeing disabled children an education; both drew attention to the plight of children with disabilities.36

 Congress's purpose in the enacting of the IDEA was to ameliorate the conditions of disabled children in public education. Before the Education for All Handicapped Children Act of 1975,37 Congress found that the needs of the handicapped were not being fully met.38 More than one-half of the children with disabilities did not receive "appropriate educational services."39 It also found that at least one million children were not getting any public school services with their peers and, even if in public schools, were unable to reach any modicum of success because their disabilities went undetected.40 In addition to the poverty of parents of children with disabilities, the families are disproportionately minorities as a share of the total covered under the IDEA.41 At great expense, many families leave the public school system altogether to seek more appropriate educational services for their children.42

 Congress found that through the IDEA's provisions the roles of parents would be strengthened by assuring more "meaningful opportunities to participate in the education of their children [at school] and at home."43

B. Statutory Framework of the IDEA.

     1. The IDEA requires that any state or local education agency that accepts federal dollars must establish procedures that "ensure that children with disabilities and their parents are guaranteed ... [a] free appropriate education by such agencies."44 A free appropriate public education (FAPE) is self-explanatory. However, there is the additional requirement that it must be "provided in conformity with the individualized education program (IEP)...."45 An IEP is a written statement for each child with a disability that is "developed, reviewed, and revised" by the education agency and the parents or guardian of the child.46 The
two primary purposes of the IEP are to set up a formal written plan that directs the educators in implementation and for assessing the child's progress.47

    2. The IDEA requires education agencies covered under this act to establish certain types of general procedures to carry out this mandate.48 These rights include access to all records, to participate in meetings with respect to the placement of their child and the provision of FAPE, and to obtain independent evaluation of the child.49

    3. The IDEA requires education agencies to establish procedures for settling these disputes.50 In the 1997 amendments to the IDEA, Congress added the requirement that mediation be available to all parents. Mediation, at a minimum, must be available after a hearing is requested by the parents.51 The mediation must be voluntary and not used to deny or delay a parent's right to the due process hearing.52 Mediators must be qualified and impartial, trained in mediation techniques, and not employees of the educational agency.53 The state must maintain a list of mediators "knowledgeable in laws and regulations relating to the provision of special education and related services."54 Costs of the mediation are to be paid by the agency.55 Any agreement reached by the parties shall be set forth in a written agreement.56

    4. If no settlement agreement is reached at the mediation session, the parent's next step is the impartial due process hearing.57 This hearing is much more formal than the mediation hearing because of the introduction of more procedure. As with mediation, the hearing officer must not be an employee of the local education agency.58 However, the right to bring an attorney, conduct trial-type procedures (presenting evidence, subpoena witnesses, cross-examination, etc.), and have it be on the record is protected.59 Also, there is the possibility of agency review by the education agency for parties who do not get the desired result.60

    5. Finally, any losing party from an official hearing has the right to bring a civil action in a state court of competent jurisdiction or in federal district court.61 To bring the suit, parents must first have exhausted available administrative remedies.

    6. The Handicapped Child Protection Act (HCPA) of 198662 allowed courts to award attorneys fees to the parents of children with disabilities when they are the "prevailing party." The fees awarded are to be based on the rates prevailing in the community for the quality of services furnished, but no bonus or multiplier is allowed in the calculation.63 Another restrictive requirement is that they are not awarded for IEP meetings or mediation hearings (unless ordered after the impartial due process hearing or by a court).64 Lastly, if there is a written offer of settlement, the parents refuse it, and then they do no better in court, then no attorneys fees may be awarded.65 The opposite is true if the parent was substantially justified in rejecting the settlement. One final safeguard is that attorneys fees can be modified according to whether either side engaged in harassment or dilatory tactics.66

 A. What is Mediation?

 This section addresses mediation in general and what it can bring to special education. The general policy argument supporting or criticizing mediation is not under this paper's purview, but the criticisms against mediation deal mainly with the lack of formal guidance in the statute. It allows the parties to rush into mediation and negotiate a settlement, which in and of itself, is not a "sufficient measure" of its success in providing a FAPE.67

 On the other hand, the benefits of attorney-mediators will be explained, where it will be shown that attorneys can bring to bear their specialized knowledge of the law and their mediation training skills to ensure a better placement. The attorney-mediator can utilize her knowledge to help poorer families who cannot afford representation while maintaining her neutral role. This section of the paper also addresses a few of the important ethical concerns confronting the attorney-mediator in this neutral role. By doing so, these ethical concerns will not hinder the role of the attorney.

 Many lawyers make it a major part of their practice to handle mediation and other forms of alternative dispute resolution (ARD). Common subject areas in which these attorneys offer services are business disputes, divorce proceedings, and probate. In fact, it is not limited to attorneys, for there are many organizational entities and solo practitioners that perform these functions without the need or benefit (or some may say hindrance) of a law degree.

 The general role of the mediator is to listen to the problems of both sides, offer other possible solutions, and try to reach agreement.68 Of course, not all disputes should go to mediation. The purpose of mediation is not necessarily to reach an agreement. Some issues are too important or not factually or legally developed enough to be settled in the less formal context of a mediation hearing.69 Mediation does not have the same factual presentations, evidence rules, or cross-examinations. The only way at getting down to the crux of the matter is for the skilled mediator to facilitate the discussion.70

 Special education disputes are fact-intensive, and thus the abilities of formal judicial process alone in solving them may not be enough, either.71 This bolsters the advantage that mediation has over full litigation. Mediation has been successful in as high as 600 of states that have used it (that is, if success is defined as reaching an agreement).72 The costs associated are much lower if handled through mediation rather than through the due process hearing.73 Congress added the mediation option in the 1997 amendments to the IDEA because in the states using the procedure, litigation was reduced, thus providing a more amicable setting for parents and administrators.74 The hope of Congress was that mediation would become the "norm" for resolving disputes under the IDEA.75

 This is the general format of a mediation, including ones under the IDEA. 1. The mediator explains his/her role and the process that will be used for the mediation. 2. There is usually more than one session to discuss or resolve all the important issues. So, at the initial joint session, the school and parents get together and seek general information about the issues. 3. The mediator will set up private sessions, if necessary, to discuss these issues. 4. Finally, there will be a meeting to discuss other possible solutions and problems that may or may not lead to an agreement.76 If not, then the process shall go on .

 When Congress passed the 1997 amendments to the IDEA it did not mandate that the states pick any particular method as the best one to use.77 It also did not discuss the uniform training of mediators and the information deficits of the parents in the hearings.78 This is how attorney-mediators can help.

B. Benefits of Attorney Mediators

 The mediation process can take out much of the contentious qualities of the dispute between the district and parents because they are not in the same adversarial process; it is definitely less formal.79 According to one survey, wealthier parents tended to perceive the mediation process outcome as fair while the poorer families did not.80 The need for a fair process and outcome is essential considering that the parents and the schools must continue to work together over the years while the child is in the public school system.81
 Attorneys trained in special education law as mediators can break down some of the barriers of access to legal services to lower income families. The districts are not doing the same job of that as they are in teaching the administration and the teachers the law of special education.82 It has been estimated that as many as 10% of students nationwide may qualify for some set of special education services.83 More than one-third of mothers of disabled children do not have a high school diploma.84 An attorney can apprise the parents of the IDEA and close the gap in information that may exist.

 The structural inequities in the system need to be broken down to ensure effectiveness.85 There is an attempt in the IDEA for the parents to have a great deal of participation in the process, but not enough of the substance is within its provisions as to what is an appropriate placement.86 The Supreme Court did not take its opportunity either in Rowley, where the Supreme Court merely set a vague minimum standard on districts to provide an education "sufficient to confer some educational benefit..."87 The IDEA creates a system where the parents are the "principal agents" of the child's progress in meandering through the maze of provisions, in which they may lack the ability to be the "effective advocates" in articulating the proper placement and services the child may need.88 Unfortunately, this may result in a situation where parents accept compromises in the education of their child.89

 As a result of the parents having a lack of information in the substantive provisions of the IDEA, they seek overly restrictive placements out of fear that their children may get troubled too much by the process.90 Even worse, the parents in the lower scale in the balance of power and resources may be forced into a settlement that is totally inappropriate for their disabled children.91 Parents of children with disabilities may not have the educational or presentational skills to address these very specialized needs.92

 A diverse background of the attorney can bring much to the mediation, especially if it came through many trials in special education disputes. This experience should be the norm to be in mediation practice. The attorney should have a great deal of trial experience such that she can understand the roles of both sides in the mediation, i.e. the roles of advocacy and representation.93 Because the mediator must help drive the determination of interests and explore possible settlement options, this is done to find possible trial outcomes. These outcomes are the "BATNA," or the best alternative to a negotiated agreement.94 In this role, she is not the judge, but rather a counselor.95 The counselor's role is not what could be termed a representation, but that of an experienced attorney engaged in the resolution of disputes in this alternative and less adversarial format.

 The neutral role of the mediator will not be compromised if she is also an attorney. According to a Michigan Ethics opinion discussing some of the ethical problems for attorney-mediators, the authors relied on the presumption that throughout the whole process the constraints of the ethics rules would be on them, and the resulting limited experience the Bar had had in disciplining them. This presumption in turn expected the attorneys dealing with unrepresented parties to have the necessary discretion to bring about a fair disposition of the issues, with no overreaching in that role.96

 The presence of an attorney representing both sides at the hearing does increase the perception of fairness to the parties.97 Of course this perception may change if the parent is unrepresented and the only attorney in the room is the mediator. But, that same attorney in the role of the neutral intermediary, who can utilize her knowledge in that field to maximize the negotiation's benefit, will appear to both sides as being able to hammer these issues out in a constructive way. One stumbling block, however, that same survey concluded was that the presence of an attorney or lay advocate representing the parent did not increase the satisfaction with the process, agreement, or implementation.98 This may be due to the added contentiousness of the mediation when a party is represented. This situation lends credence to the purpose of this paper in that an unrepresented party in the mediation will find fairness in having the attorney-mediator move along the negotiation without the same contentiousness in having an army of attorneys gathered on both sides.

 The specialized knowledge by the attorney-mediator in the law will help the quality of the final written agreement between the parties. Christopher Moore stresses three characteristics of the written agreement that are essential for its later enforceability.99 The first is the "clarity of clauses," which refers to precluding "diverse interpretations or misinterpretations."100 This entails clarifying the intentions of the parties. The second is the degree of detail so as to make the agreement more precise.101 Thirdly, there will be a clear "balance of concessions" made in exchange so as not to appear one-sided.102 Lawyers are trained to do this on a daily basis. This makes the use of attorney-mediators more desirable than ones who do not have legal training.

 As Moore has suggested, success depends on the proper balancing of power.103 The parties need to have the power to influence the other side in the negotiations. If not, then the end results will not be satisfactory, the agreement will not stand up and more conflict will result.104 The various mediation schools differ as to how to enable the weaker party to influence the other party. Nevertheless, he believes that the mediator must assist in "recognizing, organizing, and marshaling the existing power" of the parties, especially the weaker ones.105
 Bush and Folger propose a transformative mediation that, they claim, provides a more concrete definition of success.106

"A mediation is successful (1) if the parties have been made aware of the opportunities presented during the mediation for both empowerment and recognition; (2) if the parties have been helped to clarify goals, options, and resources, and then to make informed, deliberate, and free choices regarding how to proceed at every decision point; and (3) if the parties have been helped to give recognition wherever it was their decision to do so."

C. Professional Responsibility.

 Lawyers have been able to control the business of law with statutes proscribing the extent to which other persons provide certain services. The mediation practice has been regulated in the unauthorized practice of law (UPL) region through "turf battles," but the business of mediation is becoming a significant aspect of the justice system.113 It is the contention of this paper that if the use of attorney-mediators can withstand the ethical concerns of not establishing an improper attorney/client relationship, this provides the strongest support that they can be useful in the special education field.

 The major problem with UPL and improper attorney/client relationships in the mediation context is that the definitions vary widely across the nation.114 Added to this problem is the fact that nearly all mediations involve legal issues where one or more of the parties ask questions about their legal rights and the evaluation of their respective positions.115 The even bigger question is whether it is a violation of professional ethics to provide a discussion of the facts to the legal principles, and not evaluating them in the same sense as that in an attorney/client relationship.116

 To clarify, UPL and the establishment of an improper attorney/client relationship are separate issues. An attorney already admitted to a jurisdiction who engages in mediation is not subject to UPL statutes, but is subject to discipline by the proper bar authority and to civil liability if during the mediation she violates the neutral role of the mediator.

 The five tests commonly used by courts across the nation to find an improper attorney/client relationship in mediation are: 1. Is it "commonly understood" that mediation is the practice in a particular community? 2. Does the client believe he/she is getting legal advice? or, "client reliance" test. 3. Is the mediator "relating law to specific facts?" 4. Is the mediation affecting legal rights? 5. Is the mediation tantamount to an attorney/client relationship?117 If any of these tests are answered in the affirmative, the attorney is subject to discipline under the rules of ethics for violation and may be civilly liable for malpractice.

 The ABA Section of Dispute Resolution has worked on this issue, as have many state bar associations. The ABA has attempted to clarify some of the questions of mediation practice for attorney-mediators. In the ABA's Model Standards of Conduct for Mediators,118 the Comments say that the mediator's role is different than that of a professional and must refrain from providing legal advice, and where appropriate tell the parties to seek it from an independent source. It stated that mediation is not the practice of law. In its Resolution the ABA has tried to avoid much of the problems and consequences for the attorney-mediator with respect to the phrasing of sentences that touch on legal issues.119

 However, the ABA is not the only entity attempting to provide uniformity to the practice of mediation. The Department of Dispute Resolution Services of the Supreme Court of Virginia has also proposed a resolution that attempts to draw the line between a proper and improper attorney/client relationship for the attorney-mediator.120 This proposal provides valuable instruction to the mediator and, if adopted by many of the states, would strengthen the argument for the use of attorney-mediators because there would be less worry of disciplinary action or civil liability.121

 Law schools teach future lawyers that they apply the law to the facts, but mediation practice has the differing role in that it attempts to elicit the information without finding one set to be dispositive. The Virginia Committee recognized this role of the attorney in the mediation process, so it makes it permissible in the mediation context to evaluate broad legal principles, assess the strengths and weaknesses of the positions, or discover the barriers to settlement.122

 The Virginia Committee did draw the line at certain points where the neutral role of the attorney-mediator would be crossed. It resolved that the mediator could not, when asked these questions in the mediation, predict specific resolution of legal issues, because this is the function of a party's attorney. Doing so might give rise to an attorney/client relationship and break the neutrality of the proceedings.123
 According to one survey, the problem of UPL by mediators is not so widespread as to question the practice altogether. 42 state bar associations reported that the mediators licensed in their states do not have to be attorneys or even in the legal field.124 It also reported that only four states responded that they had known of instances in which a mediator was accused of UPL.125 Though this is not the most scientific survey, it speaks to the fact that attorneys who practice mediation can distinguish the differences between an attorney/client relationship and violating the neutral aspect of the mediation.

 Attorney-mediators can utilize their knowledge of special education law in a way that does not violate their professional ethics. The Virginia Committee has come to the conclusion that the attorney can be a legal resource to the parties and give procedural information.126 They can also provide declarative statements of established law.127 Also, the mediator can recall past experiences in a particular type of case as an illustration, as long as not it is not stated to be a prediction of future results.128 The limits are that the attorney must avoid being too specific and crossing the line into providing advice in these statements.

 As an example, one of the techniques of mediators is to ask reality-testing questions to the parties.129 In this "indirect" procedure for discovering interest, hypothetical possibilities presented to the party can help the mediator gain an indication as to whether the proposal is more satisfactory than other proposals and outcomes.130 If the mediator does so in a way that only raises these legal issues and not predicting the legal resolution of said issues, the open-endedness will also not violate ethics rules.131 It gets the metaphorical ball rolling in the discussion because the important legal aspects will be drawn out for the parties to know, giving them the opportunity to evaluate for themselves their respective positions.

The importance of the written settlement agreement is that it is enforceable as between the parties. When the mediator memorializes the agreement in a writing, she must write down the terms that the parties have used to make up the agreement; the mediator cannot add terms that are not consistent with the parties' agreement or add substance that could break the neutral role of the mediator.132 As discussed earlier,133 the attorney-mediator's knowledge of both special education law and the general law of contract will structure, as opposed to composing, the contract in such a way to make it more enforceable.

 However, the ethical question, then, is how the mediator speaks about the contract. The mediator will not be subject to any discipline if she does not guarantee or predict its enforceability in a court of law. The mediator can say that the particular state's contract law will apply.134 In dealing with unrepresented parties, it is "commonplace" for the attorney-mediator to make sure that both sides know what is in the agreement and what they are gaining and relinquishing.135 If the parents challenge the agreement or how the district is complying (or not complying) with the agreement, they do "face high hurdles," which they need to understand from the outset; the parties need to understand the stakes.136 This is consistent with the ability of the mediator to be a legal resource.137 The ABA is in agreement with the Virginia Committee on this point.138

 The ABA is rightfully concerned with the phrasing elements that are inherent in the mediator role when discussing legal issues, however. Its resolution states in the comments that it was written so as to avoid all these problems of phrasing because they add a significant burden to the mediator in that one phrase in a certain context is correct, but not in another.139 The ABA believes that this would be harmful the parties.140 However, a trained attorney-mediator will know the limits to the discussion of these issues and adjust accordingly. Also, the fact that there are so few cases on the subject lends support to the fact that it may not be such a problem, even for mediators who are not attorneys.

 One such qualification that already exists to prevent this possibility is the mediator's discussion of her role in the process. The mediator is responsible to inform the parties her role in the process and the limits. Namely, this is that she is not there to provide legal representation, the agreement may affect the parties' legal rights, and the right to seek legal counsel is always present.141 As long as the "advice" is in the context of the intermediary role, assisting the negotiations, and providing feedback, it should not be UPL.142

 A. Introduction.

 "It was never Congressional intent that taxpayer dollars be spent on hiring attorneys to fight parents in long and expensive court battles that will keep children from getting services."143 There are number of possible ways to solve this problem. It has been suggested that states should adopt legislative exceptions authorizing non-attorneys to represent parents at due process hearings under the IDEA.144 Or, the Supreme Court should redefine what section 1415(h)(1) really means with respect to the role of 115 the lay advocate at the hearings.145 However, Congress did in fact authorize the award of attorneys fees and must, therefore, seek to discover ways to strike the proper balance.
 There needs to be a balance in their award because sometimes seeking a proper placement requires representation by attorneys. If attorneys cannot make it a profitable part of their practice, there is not the incentive to take on special education cases. The need for some sort of fee shifting is apparent in the fact that monetary damages can only be awarded in very special circumstances at the moment, such as extreme danger to the child or bad faith dealings.146 They are, as yet, not available directly under the IDEA.147

 In Smith v. Robinson,148 the Court held that attorneys fees were not recoverable under the IDEA. It also held that it was the exclusive source of remedy for parents in the special education context, unless the provisions did not fit the situation and another statute provided relief, such as the Rehabilitation Act of 1973.149 Thus, litigants cannot use § 1983 actions for damages.150 Congress responded to the attorneys fees provision with the enactment of the Handicapped Children Protection Act of 1986.151

 The purpose of this section is to illustrate the procedural problems under the current structure of the IDEA. This concerns how the Supreme Court has altered the process in ways that makes it more difficult for attorneys to get paid, but more importantly harms substantive rights through too much process and procedure. The cases illustrate the problems, giving the conclusion that either the Congress should amend the IDEA or the courts should redefine the common law with respect to prevailing party status.

 B. Buckhannon v. West Virginia Department of Health and Human Resources.152

 This recently decided case has already significantly altered the field of civil rights law. Buckhannon Board and Care Home, Inc. operated assisted living residences for senior citizens and the disabled. It failed an inspection by the West Virginia fire marshal's office. The rule at issue required that all residents be capable of "self-preservation," which is the ability to move themselves from dangers such as fire.153 The facility was ordered to close down within 30 days. Buckhannon brought suit in federal court against the State, two of its agencies, and 18 individuals seeking declaratory and injunctive relief under the Fair Housing Amendments Act of 1988 (FHAA), and the Americans with Disabilities Act of 1990 (ADA).154 The State and its agencies had agreed to stay enforcement of the cease and desist orders pending resolution of the case, at which time discovery began.155

 However, in 1998 the West Virginia Legislature enacted two bills eliminating the "self-preservation" requirement and the defendants moved to dismiss the case for mootness.156 The motion was granted because it found that the 1998 legislation had eliminated the provision at issue, leaving no sign that the legislature would repeal the laws.157 Buckhannon requested its attorneys fees as the prevailing party under the FHAA because it had achieved the desired result in that the lawsuit brought about a voluntary change in the defendant's conduct.158 The Court took the issue because of the splits in the Circuits as to the proper definition of "prevailing parties.159

 Noting the "American Rule," where parties are required to bear their own costs of the litigation, unless a statute authorizes the shifting of attorneys fees, the Court viewed Congressional intent of § 1988160 only to permit the award when a party has prevailed on the merits of at least some of their claims.161 The former method of conferring prevailing party status was known as the "catalyst theory," where the plaintiff could get attorneys fees if she instituted an action which eventually led to the desired result.162 The Court also cited its case law as requiring settlement agreements enforced through consent decrees as the basis for an award of attorneys fees.163 Therefore, the Court held "that enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorneys fees."164 Future cases, though accomplishing what the plaintiff may have wanted, need to have the "judicial imprimatur" on the settlement, verdict, or ruling.165

C. Buckhannon Applied to IDEA.

 There is still some disagreement whether the decision in Buckhannon even applies to the IDEA. The La Grange court held that it does not because of "critical distinctions in the text and structure of the IDEA."166 Noting that the Seventh Circuit has yet to say whether Buckhannon applies to the IDEA, the court found that because, unlike the ADA or the FHAA, the IDEA specifies many different ways to get attorneys fees. This garners the conclusion that prevailing party status should be determined a different way.167 The Second Circuit ruled the opposite way, reasoning that since the decision in Buckhannon was construing § 1988,168 and the IDEA was written to conform with the decision in Hensley v. Eckerhart,169 Congress intended "prevailing party" to have the same meaning.170

 The E.M. v. Millville Board of Education171 decision contains reasoning that the courts should consider. In that case, L.M., an autistic student, attended kindergarten and first grade classes in the Millville School District. At the IEP meeting, the District proposed transferring L.M. to another school to attend it in a regular classroom setting with some resource center support. E.M. wanted the child to remain at the school in the regular classroom setting, which was denied by the district. E.M. requested mediation. The parties agreed to continue L.M. in the same school and the district was to provide L.M. with a personal aide and additional support from the district's in-house program to develop L.M.'s communication skills. E.M. thus received nearly all of the demands requested."172

 Considering that settlement conferences and mediation hearings are similar, it reasoned that to allow attorneys fees for one but not the other is inconsistent with the overall purpose of the IDEA."173 Say, for instance, the parents engage in mediation hearings with the district, do not reach a settlement, and win at the impartial due process hearing. The attorney can collect fees, including the representation at the mediation hearing. If there is a settlement, the attorney gets nothing, unless by prior agreement. The district judge disliked the idea that it would become a mechanical exercise to request a due process hearing during the pendency of the mediation.174

 This is also true because in many states parents can engage in mediation hearings with the districts without first requesting a due process hearing. If they request a due process hearing, the attorneys can usually get their fees for the work performed in mediation. The parents would only request the mediation without the due process hearing because they could not afford it. Thus, the parents would have to request the due process hearing and prepare to incur those costs first."175 Lastly, the judge in E.M. worried about the prolonging of litigation in order to get the fees from the representation.176 If they were recoverable from the earlier stages as well, both sides would have an incentive to settle at this time."177 However, Congress spoke directly to this issue in the 1997 Amendments to the IDEA and decided not to allow the award. "178

1. Lay Advocates and Parent Attorneys.

 One significant case dealt with a non-attorney who possessed special knowledge and training in special education law who was brought before the Board on the Unauthorized Practice of Law for her representation of families of children with disabilities in due process hearings convened by the Delaware Department of Public Instruction.180 Marilyn Arons and Ruth Watson are the founder and Executive Director of Parent Information Center of New Jersey, Inc., a non-profit organization that provides advice and counsel to families in the special education arena."181 The Court held that section 1415(h)(1) could not be interpreted as granting a right to lay representation.182 The lay advocates argued, unsuccessfully, that the IDEA permits their representations because it preempts any state law proscription.183 The Court reasoned that the legislative history suggested that the lay advocates role was to be more advisory than representational.184 This means that the lay advocates do not get to, say, cross-examine witnesses, present evidence, etc.185

 Arons had fought for her fees as that an attorney would get for a previous "representation" of families.186 The result was successful for the parents in New Jersey, where the law allowed non-attorneys to represent parents in the due process hearings. That court held, however, that the payment of legal fees to attorneys and not those of the lay advocate were intended by Congress.

 Seven and Zirkel point out that limited data exists to show how often attorneys represent parents at the due process hearings; there is even less for the use of lay advocates.187 In addition, the law of special education is more difficult for the general practitioner due to its "nuances," and surely nearly impossible for parents to conduct these processes pro se.188 They rightly believe that the attorneys fees provision of the IDEA weakens the financial incentive for attorneys to take the cases, especially the "borderline" cases, where the facts and law are such that the lawyer is not willing to risk it.189

 Yet another blow to the advocacy of disabled children is when the parents take on more responsibility for their child's education. As a matter of first impression, the Third Circuit held that parents, one of whom was an attorney, could not collect attorneys fees for the representation of their own child at impartial due process hearing.190 In Doe, the parents had to appeal an adverse decision from the hearing office, win at the Maryland Office of Administrative Hearings, and collect the expenses they incurred providing services elsewhere. The Board of Education did not comply with that order, so the parents filed suit in court, whereupon the Board agreed that it would reimburse for the alternate program and pay expert fees. This amounted to over $12,000. The parents were not awarded the attorneys fees for the services Mr. Doe incurred.191

 In upholding the denial of attorneys fees, the court of appeals reasoned that fee-shifting statutes are meant to "encourage the effective prosecution of meritorious claims, and that they seek to achieve this purpose by encouraging parties to obtain independent representation.192 It felt that there was an absence of independent judgment with respect to his own child out of fear that the case would be litigated by "an irrationally emotional attorney-parent" who would "bungle" the proceedings.193

 The court was correct in suggesting that an independent voice should be heard by parents so that they are not driven by their own emotions, but a problem may exist in future cases where no other attorney is willing to fight it out in the more borderline case. The Court borrowed much of the reasoning of Kay v. Ehrier,194 where the plaintiff-attorney acting pro se was denied fees under the Civil Rights Attorney's Fees Award Act.Doe has been followed as well.195 Though Doe was not acting pro se, the analogy to parents was extended to the IDEA in the narrow "special circumstances" doctrine.196 This judicially-created doctrine is used by courts to vary the statutory language where the result may not be in accord with legislative intent.197 Perhaps what is troubling is that Congress did not speak to the possibility of attorney-parents. The court then wrote new law where the existing language did not suggest one way or the other that the omission was intentional.

2. Procedural Injustice: Reaching the Agreement.

 In J. S. & M. S. v. Ramapo Central School District, 199 Jeffrey, an eighteen year old covered under the IDEA, had been revealed to have had a fifth grade reading level and severe language deficits in his ninth grade IEP. He did not qualify for remedial reading because he did not read poorly enough (ironically, he would be able to graduate at the current track he was in).200 After another couple of years with limited improvement, Mrs. S. requested a due process hearing for reimbursement of the costs of sending Jeffrey to a private school.201 Later that year, Mrs. S. and the district had settled during the pendency of the due process hearing but also after the district's Committee on Special Education (CSE), an entity of the district that ensures compliance with special education statutes, finally gave in to the parent's demands.202 All of this took well over a year to reach this point in the process.

 The court's holding illustrates that the true problem with the enforcement of these rights is that the process is overly technical. It held that private settlement agreements do not confer prevailing party status.203 The dispositive technical foible rested upon where the parties read the agreement. In Jose R. v. Joliet Township H.S. District 204,204 a child with learning disabilities and emotional disturbances and his parents engaged in mediation, where an agreement was reached. The agreement was read into the record before a hearing officer a week later. The court ruled that the plaintiffs had achieved prevailing status as a result of the mediation, but only because of this single reading.205 But in J.S., the hearing officer was not asked to give his opinion or affirm the settlement.206

 Upon rehearing, however, the same judge in Jose. changed his mind as to whether the mere reading of the mediation settlement could confer prevailing party status.207 Arguably, the differing result came because the prior procedural posture was that for a judgment on the pleadings for the District, whereas this rehearing was for a summary judgment, a higher standard. The memorandum order and opinion reversed course on the extent to which the hearing officer approved the mediation settlement.

 The judge held that that did not make it a consent decree which conferred prevailing party status.208 The judge's language tends to show that if the hearing officer did in fact approve the settlement, it may confer status.209 In P.O. ex rel. L.T. v. Greenwich Board of Education,210 the court stated in dicta that this result should never be reached because of the seemingly small nature of going about it. The author tends to agree in the sense that mere de minimus procedural changes should not be the deciding factor for the award of attorneys fees.

 A district court in the Ninth Circuit used an interesting approach to allow the parents to get their attorney's fees in the private settlement with the district in Ostby v. Oxnard Union High.211 The child had a form of autism and serious emotional disturbances, which caused her to be hospitalized numerous times due to violent outbursts at school. The parents and her attorney filed for a due process hearing pursuant to the IDEA. At the mediation hearing, the parents and the district reached an agreement under which the parents got much of what they requested. The agreement was silent as to attorneys fees. Ostbyls attorney requested $39,000 in fees, the district offered $15,00 at a later date. The parents filed suit.212

 In the order denying the defendant's motion to dismiss, the judge considered the Ostbyls prevailing party status. Following Ninth Circuit precedent in Barrios v. California Interscholastic Federation,213 this court held that since a private settlement agreement could be enforced in a court, they were prevailing parties under the IDEA.214 It is unclear whether this holding will stand in the long run, however. The Ostby judge cited the Barrios case as claiming that Buckhannon's language defining prevailing parties as only occurring when he or she receives a favorable judgment on the merits or by a consent decree as "dictum."215 If the Supreme Court did not intend that to be dictum, then the Ninth Circuit is ignoring clear precedent.

 An equally troubling example of the overly technical posture of the courts and the high costs associated with the IDEA is present in John T. v. Delaware County Intermediate Unit, No. CIV. A. 98-5781.216 In that case, a first-grade student with Down Syndrome left a parochial school to attend public school, but had rough times with the placement. The parents withdrew him back to the parochial school.

 The tortured procedural posture is twofold: the plaintiffs persuaded the court to issue a preliminary injunction against the DCIU, ordering it to provide John T. with special education services; the plaintiffs also pursued administrative review of John's proposed IEP,217 which they initially won, but which was reversed as a lawful IEP.218 The preliminary injunction was never converted to a permanent injunction because of the administrative reversal and the aborted appeal of the DCIU from the preliminary injunction. By September, 2001, John had returned to public school. A couple days later, the court issued two orders, one which found the DCIU in contempt for failure to comply with the preliminary injunction, the other vacating the preliminary injunction for changed circumstances.219

 The strategic disaster for the plaintiffs was when they filed for a voluntary dismissal in addition to their attorneys fees. The court held that all they had won was the preliminary injunction and nothing else on the merits.220 The parents obtained much of what they had requested, but had to go through many different stages to get there.221 The ultimate problem with the decision is that there had to be an extensive fight in both court and administrative hearings to reach the stalemate, where the parents got much of the relief but no decision on the merits, or even the likelihood of getting one for the change in circumstances.222 Since the court dismissed the case with prejudice, the plaintiffs could not be prevailing parties.223 In the end, the plaintiffs had to fight extremely hard for their child, but got deep in debt to do it. The attorneys racked up fees in excess of $136, 000.224

3. Procedural Injustice: "Actions or Proceedings?"

 In Megan C. v. Independent School District No. 625,226 the parents and attorneys brought an action in the district court for the award of over $19,000 in fees. The plaintiff's lawyer at the time filed a complaint with the Minnesota Department of Children, Families and Learning (MDCFL). The complaint was filed pursuant to 34 C.F.R. § 300.662227 alleging violations of the law in the child's placement. But, while the MDCFL was considering the matter, an IEP meeting was convened. Megan C. agreed to the placement a couple of months later.

 The MDCFL issued its final determination two days before Megan C. approved the new IEP. It found for the plaintiffs on many of the violations alleged. It ordered the district to reconvene another IEP team and an independent evaluative assessment for the new placement.228 The independent assessment took over a year to be completed. Once completed, the new IEP meeting took place, which was then refused by the plaintiffs. The MDCFL met again and ordered the district to revise the IEP one more time.

 The award of attorneys fees hinged on the definition of "any action or proceeding" in section 1415(i)(3)(B). Noting that there exists two separate enforcement mechanisms under the IDEA, the complaint resolution procedure (CRP) and the impartial due process hearing, the court held that "any action or proceeding brought under this section" only applies to impartial due process hearings in subsection (f), the opportunity to appeal to the SEA from a decision of the local agency under subsection (g), and for civil actions.229 The clear intent of Congress, it surmised, was due to the deletion of the phrase "but shall not be limited to" from section 1415(b) with respect to the actions or proceedings covered under the IDEA.230 This is so because the implementing regulations for section 1415(f,g,i(2)) are set forth in 34 C.F.R. §§ 300.506-300.515 as an "exclusive list;" the CRP implementing regulations in 34 C.F.R. §§ 300.660-300.662 are separate.231 The former section guarantees the right to an attorney, to cross-examine witnesses, and to present evidence, while the latter is silent as to these rights.232 The court also found that the CRP procedures, which previously derived its authority from the predecessor of the IDEA, was transferred to the Elementary and Secondary Education Act of 1965 in 1993, thus guaranteeing a different set of rights.233

 Another court in the Eastern District of New York recently followed much of the reasoning of the Megan C. Court, but also provided more policy reasons for not including CRPs as an "action or proceeding" under the IDEA.234 It held that if the CRP was an action or proceeding for attorneys fees, the implementing regulations would have a similar provision to that of section 1415(i).235 "Because the procedures required in the context of a due process hearing are not necessary in a CRP, the CRP is a less formal and less adversarial process."236 This is so because the CRP allows for poorer families to have their complaints heard without having to incur the same legal fees, if any, through the administrative review process.237

 The opposite conclusion was reached in Lucht v. Molalla River School District.238 In that case, the parents of an autistic child followed Oregon's CRP procedures, which resulted in an order for more IEP meetings to address the errors it had found in the child's placement. When the parents sought attorneys fees incident to those IEP meetings, the Court held the CRP was an action or proceeding under the IDEA.239

 The court of appeals read the language (or lack thereof) differently than the Minnesota and New York District Courts. It noted that if Congress did not intend for attorneys fees to be available only for cases involving an IEP meeting ordered by an impartial due process hearing under section 1415(f), "it could have and would have written the statute more narrowly to say so."240 The key word was "any" under section 1415(i)(3)(B), which is broader language to show that Congress intended more than one proceeding that allows attorneys fees.241 Where the Minnesota and New York courts did not find the CRP under section 1415, this court found that the CRP is governed under subsection (b)(6),242 which provides the right to present complaints as to the provisions of FAPE.243 Parents would have to go through the more litigious avenues of the due process hearing procedure to collect their attorneys fees.244 In other words, it would be circuitous to force parents to use the CRP, not find satisfaction, and start again through the due process hearing.

 This crucial distinction in what is covered under subsection (b)(6) shows the importance of Congress's drafting of the statute. The Lucht decision found that nothing in the statute or regulations pointed to the allowance of attorneys fees,245 while the Megan C. and Vh1taggio courts read the text much more narrowly. A bare reading of the statute shows that both results are possible. Both opinions are persuasive. In fact, if both readings are possible, then Congress did a poor job in drafting the statute. The Supreme Court or Congress must decide this issue.

V. Conclusion.

 A. It is not the intention of this paper to sound the horns for more and more government intervention in the field of special education so as to wrestle control from the local and state education providers. Rather, the purpose is quite narrow: to fill in a few holes that Congress and the Supreme Court left in drafting and interpreting these statutes. If the government is going to involve itself in these matters and make it an entitlement, it should make sure that the program is carried forward in a responsible way in both cost-effectiveness and the most important issue of all, a free and appropriate public education.

 The role of mediation may play an even bigger role in special education disputes.246 However, if Congress is so impressed with the results of mediation as a cost-saver, it should be more concerned with ensuring that it is used properly in all states for a proper placement. Maybe Congress does need to bring more uniformity to the process.247 This paper's main focus as to mediation was to get attorneys involved in the process, and is thus a part of that movement.

 One worry is that the increased role of mediation will not bring better services and make the process a whole lot slower in resolving disputes.248 Perhaps the process will always be fraught with problems because both sides are naturally at odds.249 This does not mean, though, that making calculated changes in certain substantive and procedural areas could not increase the effectiveness of the mediation.
 The law of contract should not be the decider; the IDEA should be. The author agrees with Marchese's proposal. He says that the courts should have more scrutiny over the settlement agreements in mediation, because judicial deference makes no sense "where statutory goals of appropriateness and restrictiveness are at stake.250 Even though the agreements reached in mediation hearings are enforceable contracts, they come as the result of a federal entitlement. Some new substantive law needs to address this concern. For the time being, attorney-mediators can solve this problem.

 Attorney-mediators knowledgeable in special education law and trained in mediation skills can play an extremely important role in fulfilling this purpose. As stated earlier,251 mediation is not for every case. The rush to mediation may not be effective or even possible in the hardest disputes.252 The role of the attorney mediator is not the stop gap solution for IDEA disputes. It can, however, be instrumental in settling the problems discussed in this paper. While not going so far as to suggest that attorneys be provided to all parents at the mediation and due process hearing stage at district cost, the responsible method would be to improve the process Congress set out in the IDEA.
 Trained attorneys bring to the mediation table their skills in assessing legal points, both factually and legally. They can craft better settlements, which is essential considering that state contract law applies to the written agreements. Finally, their knowledge in the law can inform all parties what is necessary to craft a good agreement for a better FAPE.

Trained mediators bring to the IDEA dispute the chance to address issues and concerns that the parties have. There will not be the same adversarial nature that plagues many proceedings. Finally, there will be better agreements because the parties, especially the parents who lack other legal services, will be involved in a process that encourages strengthening positions and bringing the best out of all sides.

 B. There remains many unsettled issues as to attorneys fees. Buckhannon's true significance has yet to be seen. Will it have a devastating effect on the enforcement of civil rights? For IDEA disputes, what effects, if any, will it bring to prevailing party status? The likely result will be that it will apply to the IDEA. What occurs with respect to lay advocates is unclear. How the courts deal with the issue of CRPs and mediated settlement agreements is also unclear.

 Certain procedural postures should not have to be taken in order to get the award of attorneys fees. The result, whatever Jose R. tells us, should not be according to a mere reading of an agreement into the record. This result will cause there to be the initiation and the convening of impartial due process hearings at a heavy cost, but only to read a prior mediated settlement. One commentator has worried that this process will also cause an even bigger backlog in the courts, where attorneys will go to them seeking judicial approval of every negotiated settlement agreement.253

 The Supreme Court or Congress needs to decide what the function of the CRP is as it relates to attorneys fees. Congress can do this by tightening its language to either include or exclude the CRP as an action or proceeding. Alternatively, the Supreme Court can divine Congressional intent from the current form of the statute. Then, Congress can leave the decision as is, or amend the statute to overrule the Supreme Court. If it does not, the split in the Circuits will continue to yield different results. If the attorneys can collect their fees incident to the CRP, it could resolve the dispute in a less costly fashion. By clarifying these statutes and common law, there will be improved services to children with disabilities and their parents.

1 J.D. candidate, 2003, The University of Iowa College of Law. The author would like to thank Prof. Nicholas Johnson for his guidance and my Economics of Law Practice classmates for their cogent criticisms and comments. He would also like to thank his mother for giving birth to him; the rest of his family for tolerating his insolent behavior; the Weavers; Erica Molina; Jeffrey S. Ginapp; the UIAQC; Folgers Coffee; Milwaukee's Best; and the Usual Gang of Idiots.
2 See 29 U.S.C. § 720(a).
3 Donald P. Oswald, et al, Community and School Predictors of Over Representation of Minority Children in Special Education, 2000, at http://www.law.harvard.edu/civilrights/conferences/SpecEd/oswald.pdf (last visited Oct. 3, 2002).
4 20 U.S.C. § 1400 et seq. (2002).
5 20 U.S.C § 1415(a) (2002).
6 See infra, at 23-39
7 See infra, at 10-23
8 See infra, at 23-39.
9 President's Commission on Excellence in Special Education Department, A New Era: Revitalizing Special Education for Children with Disabilities and their Families, 30, (2002), at http://www.ed.gov/inits/commissionsboards/whspecialeducation (last visited Oct. 10, 2002).
10 See id.
11 76 ELR 667, 670 (1992).
12 President's Commission on Excellence in Special Education Department, supra note 9, at 7.
13 Id. at 12-17. The report posits that it is probable that no state education agency has ever been in full compliance with the IDEA.
14 Please Miss, What's an IEP? The Economist, June 8, 2002, LEXIS, News Group File.
15 Margeret Graham Tebo, Seeking the Right Equation: Educators and Parents Seek Legal Answers on How to Balance Students' Special Needs with Broader School Goals, ABA Journal, September 2002, at http://www.abanet.org/journal/avantgo/09fcle.html (last visited Sep. 29, 2002).
16 Pub. L No. 94-142, 89 Stat. 773. (codified as amended in 20 U.S.C. § 1400 et seq.).
17 Larry Bivens, Reformers Seek to Stop Cycle of Pitting Parents vs. Schools in Special Education, Gannett News Service, Jan. 25, 2002, LEXIS, News Group File.
18 Office of Special Education and Rehabilitative Services, U.S. Dept. of Educ., Annual Report to Congress on the Implementation of the IDEA, at
http://nces.ed.gov/pubs2002/digest2001/tables/dtO52.asp (2001)(last visited Oct. 3, 2002).
19 See Calloway v. District of Columbia, 216 F.3d 1, 342 U.S.App.D.C. 110 (2000), challenging the District of Columbia Appropriations Act which imposed limits on the fees the District could pay for IDEA, including regulating the amount of attorneys fees it would pay by the hour and rate.
20 Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785 (2001).
21 ABA Commission on Nonlawyer Practice, Nonlawyer Activity in Law-Related Situations, 77, 78 n.1 (1995).
22 See ABA Section of Legal Education and Admissions to the Bar.In the 2001-2002 school year, 40,114 students graduated with a J.D. or LL.B, at http://www.abanet.org/legaled/statistics/degrees.html (last visited Nov. 12, 2002).
23 Rhode, supra note 20, at 1788. This article discusses the conceptual, political, and legal problems in providing better access to legal services for the poor.
24 Id.
25 Marc Feldman, Political Lessons: Legal Services to the Poor, 83 Geo. L. J. 1529, 1536 (1985).
26 Id. at 1537.
27 Bartholomew A. Seymour, Creating Substantive Rights for Children with Disabilities, 3 Geo. J. on Fighting Poverty 183, 184(1996).
28 Office of Special Education and Rehabilitative Services, supra note 18
29 Office of Special Education Progress, Dept. of Education, To Assure a FAPE for All Children with Disabilities: 22nd Annual Report to Congress on the Implementation of the IDEA, II-19 (2000) at http://www.ed.gov (last visited Sep. 14). The growth rate for overall school enrollment was 140 over the last decade.
30 Seymour, supra note 27, at 187.
31 Richard W. Zeller, Implementing the Mediation Requirements of the IDEA '97: A Guide Developed for the CADRE, 4 (2001), at http://www.ldonline.org/ld_indepth/legal_legislative/mediation ide a97.pdf (last visited Sep. 25, 2002).
32 3348 F.Supp. 866 (D.D.C. 1972).
33 Seymour, supra note 27, at 186.
34 334 F.Supp. 1257 (E.D.Penn. 1971).
35 Seymour, supra note 27, at 186.
36 Id.
37 Pub. L. No. 94-142, 89 Stat. 773 (codified as amended in 20 U.S.C. § 1400 et seq.).
38 20 U.S.C § 1400(c)(2)(A).
39 20 U.S.C. § 1400(c) (2)(B).
40 20 U.S.C. § 1400(c) (2) (C)-(D).
41 20 U.S.C. § 1400(c).
42 20 U.S.C. § 1400(c) (2)(E).
43  20 U.S.C. § 1400(c) (5)(B).
44 20 U.S.C. § 1415(a) (2002). In 1990, this section was retitled the IDEA. Hereafter, all references will be to the IDEA.
45 20 U.S.C. § 1401(8) (D).
46 20 U.S.C § 1401(11).
47 Stephen B. Thomas and Charles J. Russo, Special Education Law: Issues & Implications for the "90s, 46-47 (1995).
48 20 U.S.C. § 1415(b) (2002).
49 20 U.S.C. § 1415(b) (1) (2002).
50 20 U.S.C. § 1415(e)-(i) (2002).
51 20 U.S.C § 1415(e)(1) (2002).
52 20 U.S.C. § 1415(e)(2)(A)(i)-(ii) (2002).
53 20 U.S.C. § 1415(e)(2)(A)(iii)-(B) (2002).
54 20 U.S.C. § 1415(e)(2)(C) (2002).
55 20 U.S.C. § 1415(e)(2)(D) (2002).
56 20 U.S.C. § 1415(e) (2) (F) (2002).
57 20 U.S.C. § 1415(f). (2002).
58 20 U.S.C. § 1415(F)(3) (2002).
59 20 U.S.C § 1415(h)(1)-(4) (2002).
60 20 U.S.C § 1415(g) (2002).
61 20 U.S.C. § 1415(i)(2)(A) (2002). Also, this section entitles the aggrieved party under a section (k) proceeding to litigate in state or federal court. This section concerns the placement of the child in an alternative educational setting in the context of disciplinary punishment. The difference between this provision and the mediation hearings is not the concern of this paper.
62 Pub. L. No. 99-372, 100 Stat. 796 (codified as amended in 20 U.S.C. § 1415).
63 20 U.S.C. § 1415(i)(3)(C) (2002).
64 20 U.S.C. § 1415(i)(3)(D)(ii) (2002). See discussion infra, at 23-36.
65  20 U.S.C. § 1415(i)(3)(D)(i) (2002). This timetable is governed by the timetable in Rule 68 of the Federal Rules of Civil Procedure or, if in administrative proceeding, 10 days.
66 20 U.S.C. § 1415(i) (3) (E)-(F) (2002).
67 Steven Marchese, Putting Square Pegs into Round Holes: Mediation and the Rights of Children with Disabilities under the IDEA, 53 Rutgers L. Rev. 333, 350-354 (2001). He also proposes fee shifting to attorneys at mediation hearings to provide uniformity (at 362).
68 Council for Exceptional Children, Mediation Opens Door to Amicable Dispute Resolution for Schools, Parents and Students, CEC Today, Oct. 1996 at http://www.ldonline.org/ld_indepth/legal_legislative/mediation.htm 1 (last visited Oct. 14, 2002).
69 John R. Van Winkle, Mediation: A Path Back for the Lost Lawyer, 23-24 (2001).
70 Peter J. Kuriloff and Steven S. Goldberg, is Mediation a Fair Way to Resolve Special Education Disputes? First Empirical Findings, 2 Harv. Negot. L. Rev. 35, 42 (1997).
71 Id. at 44.
72 Jonathan A. Beyer, A Modest Proposal: Mediation IDEA Disputes without Splitting the Baby, 28 J.L. & Educ. 37, 44-45 (1999). He recommends that Congress should be clearer in guiding the states, mainly by mandating state certification procedures for mediation and more independence for the mediators from the districts and states through independent mediation services firms contracted out to handle special education matters.
73 Id. at 46. The costs of the average mediation runs from $350 to $1000, including the cost of the mediator's fee. See 62 Fed. Reg. 55057
74 H.R. Rep. No. 105-95, at 106 (1997).
75 Id.
76 Council for Exceptional Children, supra note 68.
77 Beyer, supra note 72, at 38.
78 Marchese, supra note 67, at 350.
79 Id. at 336.
80 Kuriloff and Goldberg, supra note 70, at 50. The survey was undertaken in New Jersey from parents and school district personnel who had been involved in a mediation and special education dispute within the last two years before the survey.
81 Misty Johnson, "Making the IDEA Act Work for Families Through Quality Mediation Programming," ABA Section of Dispute Resolution 2000, at http://.abanet.org/dispute/Mi3tyjohnsonpaper.html*62 (last visited Sep. 26, 2002).
82 Id.
83 Tebo, supra note 15.
84 Andrea Shemberg, Note, Mediation as an Alternative Method of Dispute Resolution for the Individuals with Disabilities Education Act: A Just Proposal?, 12 Ohio St. J. on Disp. Resol. 739, 750 (1997).
85 Marchese, supra note 67, at 336.
86 Id. at 335.
87 Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 200 (1982) (emphasis added).
88 Id. at 343-344.
89 Marchese, supra note 67, at 338.
90 Laura F. Rothstein, Special Education Law, 3rd ed., 52 (2001).
91 Kuriloff and Goldberg, supra note 70, at 42.
92 Shemberg, supra note 84, at 750.
93 Van Winkle, supra note 69, at 40-41.
94 Id. at 26.
95 Id. at 27-40.
96 Michigan Professional Judicial Ethics, 1996 WL 381510, 2.
97 Goldberg and Kuriloff, supra note 70, at 61.
98 Id. at 55.
99 Christopher Moore, The Mediation Process, 2nd. ed., 311-314 (1996), citing D.T. Saposnek, Mediating Child Custody Disputes: A Systematic Guide for Family Therapists, Court Counselors, Attorneys, and Judges (1983). The fourth is "a positive attitude and perspective." Attorneys bring can this, too, but so can other trained mediators if they are in a good mood.
100 Id. at 311.
101 Id.
102 Id. at 312.
103 Id. at 68-77.
104 Id. at 68.
105 Id. at 69.
106 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through empowerment and Recognition, 94-95 (1994).
107 Id. at 55-77.
108 Id. at 65.
109 Id. at 76.
110 Id. at 84.
111 Id.
112 Id. at 104-105.
113 Jacqueline M. Nolan-Haley, Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective, 7 Harv. Negot. L. Rev. 235, 240-241 (2002).
114 David A. Hoffman and Natasha A. Affolder, Mediation and UPL: Do Mediators Have a Well-Founded Fear of Prosecution? 6 Dispute Resolution Magazine 20, 21 (Winter 2000).
115 Department of Dispute Resolution Services of the Supreme Court of Virginia, Guidelines on Mediation & the Unauthorized Practice of Law, 1999 at
http://www.courts.state.va.us/drs/upl/overview.html. This group attempted to amend the laws in the State of Virginia as well as across the nation.
116 Id.
117 Hoffman and Affolder, supra note 114, 20-21.
118 See ABA Section on Dispute Resolution, "Model Standards of Conduct for Mediators, at http://www.abanet.org/dispute/modelstandardsofconduct.doc (last visited Oct. 3, 2002).
119 ABA Section on Dispute Resolution, Resolution on Mediation and the Unauthorized Practice of Law, Feb. 2002, at http://www.abanet.org/dispute (last visited Oct. 3, 2002).
120 Department of Dispute Resolution Services, supra note 115.
121 For non-attorneys, they would also be less worrisome of UPI, charges because the acceptable lines of properly transmittable information would be known.
122 Department of Dispute Resolution Services, supra note 115, at http://www.courts.state.va.us/drs/upl/legal advice.html.
123 Id.
124 ABA Section of Dispute Resolution, "State and Local Bar ADDA Survey, 2001 edition", at http://www.abanet.org/statelocal/summaryreport.pdf.
125 Id.
126 Department of Dispute Resolution Services, supra note 115.
127 Id.
128 Id.
129 See infra, at 16.
130 Moore, supra note 99, at 236-237. He calls it, rather, hypothetical modeling, but there is no real distinction from any other terms.
131 Department of Dispute Resolution Services, supra note 115.
132 ABA Section of Dispute Resolution, supra note 119.
133 See infra, at 16.
134 Department of Dispute Resolution Services, supra note 115.
135 Michigan Professional Judicial Ethics, supra note 96.
136 Marchese, supra note 70, at 358.
137 See infra, at 12-16.
138 ABA Section on Dispute Resolution, supra note 119.
139 Id.
140 Id.
141 Id.
142 Hoffman and Affolder, supra note 114.
143 Congressman Dan Burton of Indiana, Special Education: Is the IDEA Being Implemented as Congress Intended?, Before the Committee on Government Reform, Feb. 28, 2001, available at http://www.wrightslaw.com.
144 See supra note 179, at 223.
145 See supra note 179, at 223. See also discussion, infra, at 26-29.
146 Rothstein, supra note 90, at 289.
147 Id.
148 468 U.S. 992 (1984).
149 Id. at 1021. Sec. 504 of the Rehabilitation Act of 1973 (codified as 29 U.S.C. 794) bars educational entities accepting federal funds from discriminating against disabled persons in the provision of educational services.
150 Id. at 1008 n.11. 42 U.S.C. 1983 is the civil rights statute most often invoked to prevent equal protection violations.
151 Pub. L. No. 99-372, §§ 2-5, 100 Stat. 796.
152 532 U.S. 596 (2001).
153 Id. at 600 (citing W. Va.Code of State Rules, tit. 87, ser.1, § 14.07 (1) (1995).
154 Id. at 601. FHAA, 102 Stat. 1619, 42 U.S.C. § 3601 et seq., and ADA, 104 Stat. 327, 42 U.S.C. § 12101 et seq.
155 Id.
156 Id.
157 Id.
158 Id. at 601-602.
159 Id.
160 Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641 (codified as amended 42 U.S.C. § 1988).
161 Buckhannon, 532 U.S. at 602-603 (citing Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)).
162 Buckhannon, 532 U.S. at 601-603.
163 Id. at 604.
164 Id. at 604 (quoting Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792-793 (1989)).
165 Buckhannon, 532 U.S. at 605 (emphasis supplied).
166 TD v. La Grange School District No. 102, 2002 WL 31194701 (N.D.Ill. 2002).
167 Id. at 3-4.
168 J.C. v. Regional School District 10, Board of Education, 278 F.3d 119, 123 (2nd Cir. 2002).
169 Id. at 123.
170 Id. at 124.
171 849 F.Supp. 312 (D.N.J. 1994).
172 Id. at 313-314.
173 Id. at 314-315.
174 Id. at 315.
175 James R. Mortenson, Why Should We Mediate Special Education Disputes? reprinted from Winter Issue of Perspectives (1998), at ldonline.org/ld indepth/special_education/ida mortenson.html (last visited Sep. 23).
176 E.M., 849 F.Supp. at 315.
177 Id. at 315-316.
178 Pub. L. No. 105-17.
179 Kay Hennessy Seven and Perry A. Zirkel, In The Matter of Arons: Construction of the IDEA's Lay Advocate Provision Too Narrow?, 9 Geo. J. on Poverty L. & Poly 193, 196 (2002).
180 In the Matter Arons, 756 A.2d 867 (Sup. Ct. Del. 2000).
181 Id. at 868. Incidentally, the name Arons appears in many of the cases cited in this paper and many cases in the special education field.
182 Id. at 874.
183 Id. at 869.
184 Id. at 874.
185 Seven and Zirkel, supra note 179, at 196.
186 Arons v. New Jersey State Board of Education, 842 F.2d 58 (3d. Cir. 1988).
187 Seven and Zirkel, supra note 179, at 214-215.
188 Id. at 221-222.
189 Id. at 222.
190 Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir. 1998).
191 Id. at 261.
192 Id. at 263.
193 Id.
194 499 U.S. 432 (1991).
195 See Woodside v. School District of Philadelphia Board of Education, 248 F.3d 129 (3d. Cir. 2001).
196 Doe, 165 F.3d at 264.
197 Id. at 264-265.
198 See infra at 10-16.
199 165 F.Supp.2d 570 (S.D.N.Y. 2001).
200 Id. at 572.
201 Id. Her spokesperson and advisor throughout was Marilyn Arons, see supra notes 179 and 180.
202 Id.
203 Id. at 575.
204 2001 WL 1000734 (N.D.Ill. 2001).
205 Id. at 1-2.
206 J.S., 165 F.Supp.2d at 576.
207 Luis R. v. Joliet Township High School District 204, 2002 WL 54544 (N.D.Ill. 2002) (Not reported in F.Supp.2d).
208 Id. at 2-3.
209 Id. at 3.
210 210 F.Supp.2d 76, 84 n.11 (D.Conn. 2002). 209 F.Supp.2d 1035 (C.D.Cal. 2002).
211 210 F.Supp.2d 76, 84 n.11 (D.Conn. 2002). 211 209 F.Supp.2d 1035 (C.D.Cal. 2002).
212 Id. at 1036-1038.
213 277 F.3d 1128 (2002), where a handicapped baseball coach successfully got the federation to allow him to sit in a wheelchair on the field and coach. He got his attorneys fees a prevailing party under the ADA.
214 Ostby, 209 F.Supp.2d at 1040.
215 Id., citing Barrios, at 1134 n.5 (emphasis added). See also Buckhannon, 121 S.Ct. at 1840 n. 7.
216 2001 WL 1391500 (E.D.Pa. 2001) (Not reported in F.Supp.2d).
217 See infra at 36 for a discussion of Complaint Resolution Procedures (CRP). Generally, these are lower cost reviews (to the parents because they do not need attorneys) by the states as to their own and district's compliance to the IDEA.
218 John T., 2001 WL at 1.
219 Id. at 2.
220 Id. at 5.
221 See discussion infra as to the "catalyst theory," which was abandoned in Buckhannon.
222 Id.
223 Id.
224 Id.
225 20 U.S.C. § 1415(i) (3) (B) (2002).
226 57 F.Supp.2d 776 (D.Minn. 1999).
227 The section prescribes the complaint procedure and what should be contained in it.
228 Id. at 779-780.
229 Id. at 783.
230 See Johnson v. Fridley Public Schools, 2002 WL334403 (D.Minn. 2002) (Not reported in F.Supp.2d).
231 Megan C., 57 F.Supp.2d at 785.
232 See also 20 U.S.C § 1415(h).
233 20 U.S.C § 2831(a); Id. at 785.
234 Vultaggio v. Board of Education, 2002 WL 1889645, (E.D. N.Y. 2002).
235 Id.
236 Id.
237 Id.
238 225 F.3d 1023 (9th Cir. 2000).
239 Id. at 1028.
240 Id. at 1027.
241 Id.
242 Subsection (b) reads that "[t]he procedures required by this section shall include-- ...(6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."
243 Lucht,225 F.3d at 1028.
244 Id. at 1029.
245 Id. at 1028-1029.
246 See S. 2653, 107th Cong., 2nd session, (2001). This bill introduced by Senator Rick Santorum (PA) would, if enacted, make all mediations mandatory after requests for impartial due process hearings. This is so because of the purported success in reducing the costs of litigation across the country.
247 Beyer, supra note 72.
248 Shemberg, supra note 84, at 739-741.
249 Id. at 747.
250 Marchese, supra note 67, at 364.
251 See infra at 9-11.
252 Goldberg and Kuriloff, supra note 70, at 65.
253 Aviam Soifer, Courting Anarchy, 82 B.U.L.Rev. 699, 728 (2002).