Susan Foley, Attorney at Law
Mediation Only: The parent-friendly alternative to hiring a special-education attorney
When parents and a school district do not agree on the educational program offered to the child, the governing entity contracted by the state of California to resolve conflicts is called the Office of Administrative Hearings (OAH). The OAH has a no-cost, sometimes effective way of resolving disputed matters between parents and their school districts. The process is called “Mediation Only.” The “Only” refers to the fact that a mediation (settlement conference) is scheduled on the calendar without a Due Process Hearing date.
Many parents, and some school districts, dread an actual full-length Due Process Hearing due to its length in time (1 day to potentially many days, but most cases can be heard in 3 to 5 days), expense of witnesses, attorneys, time off work, babysitting issues, etc. I have participated in over 15 Due Process Hearings, once as a parent without an attorney, and 4 times as an advocate prior to becoming an attorney, and the for the remaining, balance I was lead counsel for the Student. There is no question that going through a Due Process Hearing will interrupt your normal life. When we, as advocates for disabled students, find ourselves in a hearing, it is usually because there was no alternative. However, a substantial amount of all cases that are slated to go to hearing, settle prior to the actual hearing date, either at mediation or thereafter.
Since hearings are no picnic, for anyone, including, believe it or not, the judge, the Office of Administrative Hearings has available to students and their parents, the process of a Mediation Only session without a hearing date looming over the parties. Attorneys are not permitted to be present during the actual mediation session. This rule results in a cost savings for all parties. Of the cases that I have coached into a Mediation Only session, approximately 60 percent settle at that stage alleviating the necessity for further attorney fees and protracted litigation. It also results in the Student obtaining an educational program that his/her parents agree to expeditiously.
The process may appear intimidating to the parents with no legal background, but it should not. It is intended to be “parent friendly.”
If a dispute between parents and the school district surrounds “placement”, that term encompasses a classroom, whether it be full-inclusion (general-education with all typical peers) or a Special-Day class with mainstreaming (the portion of the day that the disabled student is to be with the general student population) and related services. Related services include, but are not necessarily limited to, transportation, speech-language therapy, social-skills training, occupational therapy, physical therapy and adaptive physical education (APE.) A Mediation Only session could be attempted prior to hiring an attorney and/or filing for Due Process.
Common Scenarios for a Mediation Only Case are:
The school district will not agree that a student is eligible for an Individualized education program (IEP) as a Student with a disability;
The school district will not place a Student in a general-education classroom and believes a disabled student requires a Special-Day Class;
The school district will not provide occupational therapy for fine and/or gross-motor skill development or sensory-integration deficits;
The school district will not provide individual speech-language therapy, only group speech-language therapy;
The school district will not provide transportation to and/from school.
The following steps need to be taken to proceed through a
Mediation Only case:
1. Print the three-page form found at:
2. Fill out the form, keeping the following in mind:
a. The only section that may need guidance to outline the issues in dispute is found on page 3 of the form. Under Brief Summary of Reason for Request: a parent may complete this section with a general statement such as:
The district is not providing my child with an educational program that meets his/her special needs to allow him/her to benefit from his/her education.
If you can provide more detail, stay clear and concise. You are not required to prove anything on this form.
My child required, and continues to require, 90 minutes per week of individual speech-language therapy to make progress on his/her goals. The district is only providing 30 minutes of group speech-language therapy.
b. The next section is titled: “Proposed Resolution of the Problem Stated Above:”
You may craft an acceptable remedy such as:
The district make up for the lack of necessary speech-language therapy for the past 6 months at 60 minutes per week of individual therapy and write an IEP that offers my child 90 minutes per week of individual speech-language therapy.
And that’s it. A clear, concise statement of what is happening and a second statement describing what needs to occur, in your opinion, so that your child can benefit from his or her education.
3.The next step is to fax the completed form to the Office of Administrative Hearings at 916-376-6319. Within 5 days, you should receive a scheduling order with a mediation date. You may call and confirm the date, or request to change it. The district may request a change in the date. You should cooperate in all scheduling
requests because the district, technically, is not mandated to participate in a mediation session. Either party may withdraw from the process at any time. However, parents and districts, when operating in good faith, generally follow through with the entire process. This does not infer that a complete compromise will occur, but the parties will be at least be talking.
Preparing For the Actual Mediation Session:
Be prepared to spend the entire day at the district office starting at 9:30. If you need a start-time change, request it. Most mediators schedule a lunch break, but if they do not, request one because even if you have no appetite, you do need a mental and physical break at some point in the middle of the day.
Mediation usually starts with the Mediator, who may, or may not be, an actual Administrative Law Judge (ALJ.) If the mediator is an ALJ, it is guaranteed that he/she will never be the judge for any case involving your child in the future. This rule is intended to promote free and candid exchanges of information between the parties and the mediator.
Upon arrival, the mediator will give his/her 5-10 minute outline of what will happen. Then the student’s parents are usually requested to provide a summary of their concerns and requests. Take 1 to 10 minutes to present your case and all issues. If you are really nervous, and all you do is read the request form that was filed with the OAH, that is fine. Do not worry about being an eloquent speaker.
You may simply state what you want. Sometimes, the less said the better, because one of your unnecessary statements could be a double edged sword for your position, that you do not see until it is used against you. Be careful and if you slip up, move on and don’t look back. It is okay to demonstrate passion; after all, you are there for your child, however, check your emotions at the door. Do not get emotional at any point in the process. If you need a break to sit in your car with the windows up and scream, request the break and go scream.
At any time, you may ask to meet with the mediator alone (referred to as a “caucus”.) You may show the mediator or district any documentary evidence (private provider’s reports, recommendations, actual school work, report cards, assessment reports, pictures, videos, etc.) anytime you want. However, you may want to show it to the mediator first and gauge his/her reaction to determine if it really helps you or maybe as the parent, you saw it differently (I know first-hand that as parents, we can have blind spots at times.)
The mediator will guide the process to see if the parties can meet in the middle and a compromise can be reached. If so, the mediator will write up an agreement, or the district will provide one that should be read twice by you with careful consideration. Any questions should be directed to the mediator, who, by the way, cannot offer legal advice to the parties. However, if you frame your question correctly, you most likely will obtain the information sought one way or another.
Both parents may attend the mediation session, but only one parent needs to attend. If only one parent attends, consider bringing a relative or supportive friend. Bring any and all documents that support your request(s.) You may even bring your child. Bring a snack and/or lunch, water. You can pack an ice chest and leave it in the trunk of your car, for breaks, to keep your energy up. Bring your sense of humor, your cell phone and a laptop if you desire. However, only use the laptop when you are not in an active discussion with the mediator. Bring your professional manners, and dress comfortably casual.
Some of the mediation sessions end within 4 hours, some may last all day. Try not to become impatient, especially if slow and steady progress is being made. There really is no legal magic to this process. You do not need to understand the entire Individuals with Disabilities Education Act (referred to as IDEA) or the California Education Code. Even if you do not resolve your child’s case at a Mediation Only session, you will learn from the experience. If you reach a settlement, congratulate yourself. If you do not reach a settlement, consider your options: file for hearing, with, or without an attorney, request an IEP-Team meeting, contact an advocate or attorney for legal advice.
To read hearing decisions (from a full hearing), go to: http://www.dgs.ca.gov/oah/SpecialEducation/searchDO.aspx
Susan Foley has 15 years of experience helping families with special needs obtain appropriate educational services for their children. She is a member of the Council of Parents, Attorneys & Advocates (COPAA); and the San Mateo County Bar Association. She has extensive knowledge and experience with IEP meetings, consultations, mediations, due process hearings, appeals and disciplinary matters. She understands first hand what it means to be the parent of a special-needs child and finds it very fulfilling to help other families.
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