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(6.43) Are there any other dispute resolution procedures?

(6.43) Are there any other dispute resolution procedures?

Yes.  Once there is a disputed issue between you and the school district, you may ask for a “prehearing mediation conference,” commonly known as “mediation only.” This “prehearing” mediation is not mandatory and you may proceed directly to filing for a due process hearing if you are not successful.

A pre-due process mediation conference is conducted exactly like a due process mediation, except no attorneys may attend the meeting and the mediation must be conducted and resolved in a shorter period of time. The OAH will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The mediator is usually an Administrative Law Judge (ALJ), but in this case, he acts as a mediator and not a judge. The same ALJ cannot hear your case if you eventually go to a due process hearing.

The prehearing mediation conference must be scheduled within 15 days and completed within 30 days of receipt of your request by OAH. [Cal. Ed. Code Sec. 56500.3.] A copy of the written agreement, if any, must 

be mailed to you and the district within 10 days following the prehearing mediation conference. If you are not successful and then file for hearing, the OAH will likely not offer another mediation.

You must make your “mediation only” request in writing. You may use the state’s form for this purpose. There are some disadvantages to participating in mediation only. First, parents cannot have attorneys attend or “otherwise participate in” the mediation conference. This may not be a problem if you are knowledgeable about special education programs and entitlements. Other parents could be at a significant disadvantage when negotiating an agreement with special education administrators. It may be difficult to negotiate and to know whether the agreement that is reached is fair and reasonable, given the law and the facts. [Cal. Ed. Code Sec. 56500.3(a).] You may be accompanied by a family member or friend.

Second, federal law appears to say the “stay-put” rule (the rule that a student must remain in his last agreed upon program pending resolution of the dispute) applies during “mediation only”. [20 U.S.C. Secs. 1415(e)(1) & (j).] However, CDE has taken the position that it will not issue “stay-put” orders as part of a compliance complaint. If maintaining your child’scurrent placement or services whileyouareinthe “mediationonly”process isimportant to you,youshouldparticipate only if the district (andanyother agencies) has given its writtenassurancesthat stay-put will be honoredwhile mediation is pending.

Other forms of alternative dispute resolution (ADR) may be offered by your district or SELPA. This may involve a session with a district and parent team of facilitators, an ombudsperson or liaison or a “facilitated” IEP meeting. For more information about ADR and special education, visit the website of the Center for Appropriate Dispute Resolution in Special Education (CADRE) at:  www.cadreworks.org.

There are benefits to each of the alternative dispute resolution methods referred to above. However, formal due process procedures (including resolution sessions and mediation conferences) may offer specific protections to you and your child that are not necessarily applicable to the informal mechanisms.