“Without Prejudice”
At any time, a settlement can occur during the human rights process. The BC HRT website also states that you can request a mediation meeting at any time. Even if you have already had one.
Some people file a human rights complaint and then, soon after, send a demand letter. Even before their complaint has been accepted. Sometimes, if you tell the school that you filed a human rights complaint, they try and make things right. They offer support in exchange for a withdrawal. Which, hey, if your kid gets what they need, success! If the supports leave in the future, file another complaint. Or ride it out. The complaint is going to last a long time, and your child can benefit from that. They may provide support to limit the damage period. They know they will have to be prepared to provide evidence that they are providing reasonable accommodations.
At any time, you can send a settlement offer through email, titled “Without prejudice” at the top. Doesn’t matter where you are in the process. You can search on the internet for examples of settlement offers, but really, it doesn’t need to be anything fancy. There are many pages on the BC Human Rights Tribunal Website to read about settlement.
At the beginning of your complaint process, once it’s been accepted, the tribunal will automatically set up a mediation meeting with a mediator. If both parties have legal representation, they are encouraged to do it on their own. But mediation meetings do sometimes fail, and settlement can still occur after.
Here is a tip **** take a look to see who is attending the mediation. If it is the secretary-treasurer, then that is a good sign they are taking it seriously. They have the authority to agree to settlement amounts. If it’s your kids’ principal only that shows up, that may not be a good sign. They may be using the mediation meeting to gather information without any intention of settling with you. Or maybe they want to provide you the emotional opportunity to resolve your issues and offer a settlement later, hoping you will be less mad and accept less. It’s all strategy. But take a look at who is at the table. If it’s not senior administration; there may be something else here at play, not settlement.
Sometimes settlements happen a couple of weeks before a hearing. At the last case conference before the hearing, the tribunal will encourage both parties to try again with a mediator and organize the mediation meeting.
Some people settle days before a hearing. Settlement can even occur during a hearing. Quite a sizeable chunk of people settle after a hearing, after everyone’s cards have been shown.
During the mediation meeting, they are going to want to push you and see where your final line is. They will keep pushing you until you absolutely refuse to budge. That’s when they know they have gone far enough. There is risk when they do this, as they never know when you will snap and suddenly refuse to mediate at all and want your hearing.
At some point during the process, not even necessarily during a mediation meeting, parents are sometimes approached by the respondents and asked, what do you feel your child needs in order to be successful? They look at offering them another opportunity to come back to school with more support. This may be appealing to you and mitigate the harm your child has already experienced.
Settlement Amount
If you are fighting for a monetary settlement amount, the amount you are fighting for is for your kid. This is money that will be held in trust until they are 19. You and/or they can access this money for them. For speech therapy, or counselling, etc. If they want something, and if you agree, they can request portions of it for something they want/need. If you can get your kid back into school with the support they need to be successful, this is also a benefit to them. Getting them the support they need can be way more valuable than any dollar amount you could end up with for them.
If you are seeking compensation from your loss of work, or counselling appointments you have had to pay for, you need to file your own complaint and have your own mediation meeting. Which you can now do. File under Family Status. To read more about this, here is the adding yourself to your child’s complaint page.
Here is a blog on settlement amounts. How much can you ask for? You will need to come prepared.
In the blog on settlement amounts, you will see how to read case law and apply it to your case. The most recent and up-to-date compensation from the tribunal was $5,000 for 46 days, and that was for 1 high school class out of the 8 classes. The lawyers are going to be analyzing how your case may be similar or different to this case and where you are along the line of what is legally reasonable. This case was a marked improvement from the older cases. In settlements, you can ask for more than what the tribunal will award, but if you are really outside of the lane of what the lawyers will find reasonable, you are going to need to fight for it. Which is possible; just be ready to put some serious time into this and you will need to be making a lof of applications and making this really expensive for them to wait you out. They are performing a cost-risk assessment on you. It’s an insurance payout decision. The School Protection Plan will be the one paying your settlement amount, not the district. To read more on this topic, I offer two pages. Liability in Education & School Protection Program – School Districts – Lawyers: The Three Musketeers.
If you want to fight for a higher amount than what the lawyers feel is legally reasonable, you may need to get really expensive and cost them more. Which won’t be hard; lawyers are very expensive. That will mean filing a bunch of applications and keeping them really busy during document disclosure. Which will most likely be very legitimate, as it is unlikely they will give you the documents you will need. You are going to need to become a detective and figure out what is missing and start making applications. (Form 7.1) You could apply to have your child’s name anonymized, but name the school district. For more information on missing documents, read Improper Conduct – Hiding Disclosure. Document disclosure could last a while. You will have, and they will have, an ongoing obligation to disclose. You’ll also most likely need to be hearing ready. They may be more interested in a settlement right before a hearing. It will all depend in how they assess their cost-risk with you.
I just encourage parents to be open to various ways of obtaining a benefit for their child and other children. Policies can come out of settlements, changes in practice, etc. For most parents, the whole point of filing a human rights complaint is for their child, and they don’t want whatever they have experienced to happen to someone else. You can be creative. BUT, I highly suggest you consider getting something of a monetary amount. Even a couple of thousand dollars can go towards counselling, which may be very helpful. Some of the creative resolutions won’t be held up by a court if they don’t fulfill their commitment, but a monetary amount will be.
There have been cases where they have tried to wiggle out of the creative mediation agreements, or given the bare minimum, but still legally fit the terms of the agreement. That’s why I say, if you get at least some monetary amount, you have something.
If you want a hearing instead of a settlement, I get it. I certainly won’t be the person to try and talk you out of it.
As always, I encourage you to seek legal advice when going through a settlement and having a lawyer review your settlement agreement.
The tribunal will provide a mediator. They are not there for YOU, only. They are trying to bring the parties together and will use their own bag of tricks to make that happen. They’ll be pressuring both sides to meet in the middle. I do want you to go into these with your eyes wide open. Not everyone has had a positive experience with the mediators. They say they are trauma-informed. That is not everyone’s experience.
Settlement talks don’t need to end just because you ran out of time for your mediation meeting day. You can keep the conversation going. Quite often they do continue. It all depends. A lawyers assessment of your case may give you the confidence to know how hard to push.
The BC HRT Website has a lot of pages and links on settlement and mediation topics.
Please do your research. Some parents hire a lawyer for this step of their process. You can also bring a support person with you who is not a lawyer, just for emotional support so you aren’t doing this alone.
Non-Disclosure Agreements
This is a topic that will come up that you will need to think about. The school district’s lawyers are going to want you to sign one and a release. The point of a settlement is for the matter to be closed for both parties. However, I highly suggest you think long and hard about this.
Here is a blog with a link to a video produced by lawyers on the topic of NDAs. Please research this topic. Once you sign it, there is no going back.