Special Education Mediation
Unlike resolution meetings which are mandatory if the school district wants to hold the meeting, mediation is completely voluntary. This means both parties must agree to mediate or else a mediation cannot be scheduled.
Mediation usually follows an unsuccessful resolution meeting. However, there are occasions when the nature of the allegations in the request for due process hearing makes it apparent that a resolution meeting will not be fruitful. In these cases such as this, it is not uncommon for the parties to agree to waive holding a resolution meeting and proceed straight to mediation.
How Do the Parties Request a Special Education Mediation?
If the parties wish to mediate, they need to file a request for mediation with the California Office of Administrative Hearings ("OAH").The parties will generally give OAH two dates (a primary and a secondary) that they would like to mediate. If OAH has either date available, it will grant the request and calendar the mediation. On the appropriate date, OAH will then provide a trained mediator at no cost to the parties.
Special education mediation in San Diego (and throughout California) begins at 9:30 am. (NOTE: The start time has changed dring COVID-19; mediation now begins at 9:00am because mediation is held via video conference rather than in-person at the school district).
What is the Role of the Special Education Mediator?
The mediator is a neutral third-party, meaning he or she is not there to advocate specifically for either party. The mediator will try to help the parties find middle ground and hopefully come to a settlement agreement short of going to due process hearing. Because due process hearing is a stressful, time-consuming, and costly process, it is usually in the parties' best interest to reach a settlement agreement if possible. A skilled mediator will gently nudge both parties toward common ground, gradually moving them toward compromise without strong-arming either side.
How is a Special Education Mediation Different From a Resolution Meeting?
There are some key differences between mediation and a resolution meeting. Here are a few of the differences:
- Mediation is Confidential
Unlike a resolution meeting, everything the parties say at mediation is confidential and nothing that's said can be introduced as evidence at a subsequent due process hearing.
- The mediator facilitates (and often times guides) the negotiation
Unlike a resolution meeting where the parties facilitate the negotiation, the mediator will generally facilitate the negotiation. Throughout the course of the mediation, the mediator will frequently be privy to information that perhaps the other side is unaware of. (NOTE: everything said at mediation is confidential--even information that is shared with the mediator by one party in a private session unless the party gives the mediator permission to tell the other side). Because the mediator often has information that is relevant but he or she does not have permission to share it with the other side, the mediator can often see a middle ground for the case that even the parties may not see themselves.
- The mediator can be a calming force
Special education cases can be very emotional. On one side, we have parents who believe the school district has not met its legal obligation to their child. On the other side, we have professional educators and administrators who may disagree with the parents' critique of the quality of their work. While there's no buffer at a resolution meeting if tempers flare (although an experienced attorney can make sure cooler heads prevail), a mediator can be a calming force and keep the negotiation on track when things start to stray off course.
- A mediator can give the parties an idea of what's possible at due process hearing
A mediator, particularly an ALJ, can give the parties of what's possible at due process hearing, both in terms of likelihood that the party will prevail on the legal issue and what remedies would likely be awarded. In this regard, the mediator can provide invaluable insight. OAH has limited jurisdiction and therefore it cannot order certain remedy requests. If, for example, parents request legal remedies in a case that OAH doesn't have the legal authority to order, it would benefit parents to know this before proceeding to due process hearing.
What Happens During Mediation for Special Education Cases?
Every mediator handles mediation a little differently. Some mediators like to have all parties meet together to start, discuss the issues and settlement demands, and then allow the parties to separate to their private meeting rooms. This is called a "joint session." Other mediators prefer to meet with both sides separately and start the negotiations from there. This is usually the preferred method if it's apparent there are notable hostilities between the parties and the mediator fears that bringing the parties into the same room might cause tempers to flare and stall, or stifle, the negotiation efforts.
At some point, the mediator will meet with both sides separately and discuss their respective position in detail. Some mediators have better bedside manner than others, but good mediators will try to the heart of the disagreement and nudge the parties to think about pathways to overcome the disagreement in ways that both sides might be able to live with.
It is important to note that not all OAH mediators are Administrative Law Judges ("ALJ"). An ALJ has training in special education law and presides over due process hearings. Some mediators, however, are not ALJs, but instead they only conduct mediations. While these mediators receive training in special education law, they do not have the experience of the presiding over due process hearings, weighing evidence and making factual findings, applying the relevant law to the facts, and issuing decisions and orders. The benefit of having an ALJ at mediation versus a mediator is the parties can sometimes, when appropriate, ask the ALJ how he or she views their case's strengths and weaknesses.
The bulk of mediation is spent dealing with offers and counteroffers. For instance, parents will begin the morning by making a settlement offer. The school district will consider it and typically make a counteroffer. Parents will consider the counteroffer. While they might accept the counteroffer, they could counter the counteroffer. Mediation typically has several rounds of negotiations until the parties reach an agreement or an impasse.
Experienced San Diego Special Education Attorney
To speak with an experienced special education attorney, schedule a free consultation today. Paul will discuss the details of your situation and go over all the options available to you.