Four criteria must be met in order for parties to access the settlement conference process, to wit: a hearing request has been filed; the parties voluntarily agree to participate; both parties are represented by counsel; and the hearing officer assigned to the matter endorses the process as efficacious given case presentation.
The requirement that a hearing request has been filed is rooted in the notion that in order for the person presiding over the settlement to be able to offer a fully informed case assessment, the case has to be “evolved”; that is, the settlement officer must be able to consider/review the gist of the evidence that would ultimately comprise the record were the case to go to hearing.
Second, participation in the process is voluntary--it is neither mandated by statute, regulation or rule. Both parties must therefore agree to participate or the settlement conference does not go forward.
Third, since there are some disputes that are less amenable to resolution through the settlement conference process than others, the assigned hearing officer (who has presumably reviewed the hearing request, response, and has conferenced the matter via telephone) is consulted as to the efficacy of utilizing the process.
Finally, one of the primary goals of the settlement process is execution of an agreement at the close of the conference. By their very nature, agreements (which are legally binding contracts) typically entail general release and specific waiver language, as well as a significant amount of legal boilerplate. As a result, the legal representation requirement has been established in order to ensure that there is informed consent when a settlement agreement is signed.
The methodology utilized in this process is, at its core, case assessment, and the success of the process is therefore highly dependent on the expertise of the person presiding over the settlement conference. Thus, settlement conferences are conducted by knowledgeable, seasoned, experienced professionals in the area of special education law/litigation, who can provide informed, neutral assessments.
In order to provide such informed case assessment the settlement officer requires that parties submit documents in advance of the proceeding for her (his) review. These documents should be limited to pleadings, recent evaluations and progress reports, recent IEP(s), evidence of any significant procedural violations, etc. The submission should give the person presiding over the settlement conference a thorough overview of the case the parties intend to present at hearing.
The settlement conference generally begins with a joint session, during which each party has the opportunity, if he or she so elects, to make a brief opening statement. Participants are then given an opportunity to present relevant information not included in their submissions (e.g., parents’ personal perspective), and to expand upon/clarify information in the documents. The person presiding over the settlement conference will likely ask questions based upon his/her review of the submissions. (Unlike a hearing, the session is not recorded and participants are not under oath when making their presentations.)
Once the joint session is completed, the person presiding over the settlement conference caucuses with each party, offers case analysis, and a candid assessment of the strengths /vulnerabilities of the respective positions. Note: such ex parte communication is permissible in the context of the settlement process, albeit wholly impermissible within the context of a due process hearing; similarly, since financial considerations are often a catalyst to resolution, discussions about the financial implications of the case, as well as monetary offers are permissible at a settlement conference, but not at a hearing. (At hearing, the financial implications of a program, placement or services may not be considered by the hearing officer.) Offers and counteroffers are floated and discussed and, if consensus is reached, an agreement is drafted and executed.
Nothing that occurs at the settlement conference (including conversations, offers, written submissions, the agreement, if one is reached) is shared by the person presiding over the settlement conference with the assigned hearing officer. The moving party simply submits a written withdrawal of the hearing request in the event of an agreement and, if no agreement is reached, the parties proceed to hearing in the normal course.