OAH will provide a mediator to sit down informally with you and the district before a due process hearing is held to try to resolve the problem, if both sides agree to mediate. The mediator has no power to force either side to do anything, but only tries to help you and the district reach an agreement. The mediator will generally meet in one room with all persons attending, but may hold separate “caucuses” with either side in an attempt to resolve the problem. The mediator, usually an ALJ, is in the role of a mediator and not a judge. The ALJ, acting as mediator, will not be the ALJ assigned to hear your case should the dispute go to hearing. [Cal. Ed. Code Secs. 56500.3(c)–(e), 56501(b)(2).]
If the mediation has failed to resolve all the issues in dispute, nothing you (or the district representatives) said or wrote as part of the mediation may be submitted to the ALJ at the hearing for the purpose of trying to prove either side’s case. [5 C.C.R. Sec. 3086.] Therefore, just because a district offered to meet you halfway in terms of a program during a mediation conference, it does not mean that such an offer can then be admitted into evidence at the hearing. If mediation fails and all offers are withdrawn, each side must prove his entire case without any reference to whatever may have been said or whatever progress may have been made at the mediation conference.
Although many disputes are settled in mediation, you cannot assume that your dispute will be resolved. It is in your best interest to be as prepared as possible for the hearing before mediation. Remember that mediation is voluntary and may be waived by either side. If waived, you will go directly to hearing.