Discusses effect of Buckhannon case on attorney fees in special education mediation. Prior to this case, if parents were the “prevailing party” in mediation, the parents’ attorney could seek fees from the school district. Now, if parents and school districts enter into a settlement through mediation, it is considered a private settlement agreement and the parents’ attorney cannot seek fees even if they prevail. In order to get attorney fees since the Buckhannon case, they must be negotiated for and agreed upon as part of the formal mediation agreement. The author states that parents are now left with a choice between representing themselves, taking a financial risk and hiring representation, or making attorney’s fees an issue in the mediation session. The author believes that this case, as applied, puts parents at a disadvantage in the mediation process because the school will likely be represented.
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