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Mediation

& Impartial Hearing


CHAPTER 11
Mediation
An impartial system that allows “the proper parties who have a dispute to confidentially discuss the
disputed issues with a neutral third party with the goal of resolving the disputes in a binding written
agreement” (2000, p. 1).
Mediation Requirements
• States must develop and implement a mediation process and make it available
to the parents whenever a complaint it filed.
• The procedure shall ensure that the mediation process-
i. is voluntary on the part of the parties
ii. is not used to deny or delay a parent’s rights to a due process hearing..
or to deny any other rights afforded under this part; and
iii. is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
Selection & Impartiality
to Mediators
• Mediator: an impartial individual who conducts the mediating process.

• Must be impartial to the conflict and the people within the mediation.

• States must provide and develop guidelines for the selection and the
training of the mediators

• Mediators must be chosen at random from the list of qualifies mediators.


Parents Who Opt Out
Parents can choose not to complete mediation and go straight to a due process hearing
however, the school/district can ask parents if they want to meet with outside agencies to
go over the benefits of mediation etc. before they completely choose against it.

Reasons parents opt out, a.) they know they have the right to refuse; b.) the cost of the
process in terms of time, money and emotional stress; and c.) the anger and exasperation
felt toward the school personnel.
Mediation Process
Premediation Caucus(es)
Introductory Mediation Meeting
Mediation Meeting:
Phase 1: Opening Statements
Phase 2: Agenda Setting
Phase 3: Resolution Option Generated
Phase 4: Agreement Negotiation
Phase 5: Written Agreement Preparation
Agreement Document Distributed to all Parties
Premediation Caucus(es)

Gives the mediator a chance to meet with each party individually and
gather some of their concerns. It is however best always best to start
mediation with both parties involved.
Introductory Mediation
Meeting
The mediator provides both parties with an understanding of the
concepts of mediation, assists the parties in identifying the areas of
dispute, and provides a venue where they can decide if the mediation
will still be needed.
The mediator will also provide the ground rules and describe that the
mediation can be halted by any party for a short time or because they
don’t believe the issue will be resolved. The mediator can also terminate
mediation
Phase 1:
Opening Statement
Explanations of the issues generally begun by the parents and then the
rest of the parties after that.

Mediators job is to facilitate an uninterrupted presentation of the parties


and to identify the underlying interests of each party.
Phase 2:
Agenda Setting
• Participants review the issues and plan the most efficient way to
address them.
• Decide as a group the order they should be discussed.
• They decide which things need immediate attention or can be
resolved right away and if witnesses are needed or more information
needs to be gathered mediation may be postponed to a later date.
• When they meet again each party is allowed to share the new
information not given in the first opening statement.
Phase 3:
Resolution Option Generation
• The group gets together to decide some possible solutions to the
issues.
• No decisions should be made at this time.
• The mediator at this time helps generate feasible ways to address the
resolution of the issues.
Phase 4:
Agreement Negotiation
• Select options from previous phase and get both parties to agree
upon one solution.

• The mediator at this time will use up to nine different resolution


strategies to get the parties to agree.
Phase 5:
Written Agreement Preparation

• Mediator will draft the written agreement and will get both parties a
finalized draft on a later date or provide one right after the meeting.
Resolution Session
• The Local Education Agency must hold a meeting with the parents
and IEP team within 15 days of the complaint being filed and before
the due process hearing.
• The resolution session may be waived if both parties agree or if they
choose to use mediation.
• Due process hearing must occur if resolution is not reached within 30
days.
Due Process Hearing
An official forum that “must be conducted by the SEA or the public
agency directly responsible for the education of the child as determined
under state statue, state regulation, or a written policy under SEA”

According to Yell, the due process hearing allows an impartial third party,
known as the due process hearing officer to hear both sides of a dispute,
examine the issues presented, and prepare a decision that is binding to
both parties.
The Hearing Process
• Due Process Hearing Report
• Due Process Hearing Decisions
• Change of Placement Appeal and Expedited Due Process Hearing
• An Official Forum Conducted by the SEA or Educational Agency
• The Due Process Hearing Officer Hears Both Sides of the Complaint and
Prepares a Decision Binding both Parties
• The Ultimate Goal of the Hearing is to Reach Decisions that are in the
Best Interest of the Student with Disabilities
Hearing Officer(s) Selection

• Hearing officers may not be involved with the student, parent, or


school.

• States must maintain a list of eligible hearing officers including the


officer’s qualifications to serve.
The Hearing Process
• Prehearing Activities
• School Prehearing Activities
• Parent Prehearing Activities
Due Process Report
• Hearing officer is responsible for writing up the report.

• Report is based off of evidence presented at the hearing.


Due Process Decision
• All decisions are final unless or until appealed

• Parties may bring civil action in state or district court to appeal due
process hearing decisions.
Change of Placement
& Expedited
Due Process Hearings
Process put in place to deal with discipline issues or when a parent
disagrees with a placement.

Due Process Hearing

• School can make a manifestation of determination for behavior.


• Lea believes current placement in dangerous for the child or others.
• Hearing must occur 20 days of complaint and a decision must be
Reference
Murdick, N.L., Gartin, B.C., Fowler, G.A. (2014). Special education law (pp. 210-232).
Boston, MA: Pearson Education, Inc.