Chapter 5.11: Mediation

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20.U.S.C. 1416 (a)(3)(A))
    SPP 19:
    Percent of mediations held that resulted in mediation agreements (20.U.S.C. 1416 (a)(3)(B)).

    Intent:

    To provide school districts (LEAs) and parents an alternative means of settling special educational disputes through the use of a qualified and impartial mediator rather than by a formal complaint process or due process hearing. Mediation is an option even when a formal complaint or due process complaint has been filed.

    Timelines:

    Within five business days

    The mediator will schedule the mediation within five business days of receiving an appointment from the Ohio Department of Education, Office for Exceptional Children.

    Within 20 business days

    The mediation will be completed within 20 business days of the mediator’s setting the mediation session.

    • "Business day" means Monday through Friday, except for federal and state holidays (unless holidays are specifically included in the designation of business day).

    Within 20 school days following the mediation agreement

    If the mediation requires changes in the IEP, the IEP team shall be convened to incorporate changes into the IEP within 20 school days following the mediation agreement, or as agreed to in the mediation agreement.

    • "School day" means any day, including a partial day that children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.

    Note: Detailed mediation procedures, including the roles and responsibilities of the Ohio Department of Education, the school district and the mediator, are included in Statewide Special Education Mediation Procedures: A Guide for Parents, School Districts and Parent Advocacy Agencies, September 2009; and Mediation Procedures for Special Education, A Guide for Parents, Ohio Department of Education, Office for Exceptional Children, September 2009. These documents are posted at http://education.ohio.gov, keyword search: mediation procedures.
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (a) General
    The Ohio Department of Education shall establish state mediation procedures. Additionally, each school district must ensure that procedures are established and implemented to allow parties to disputes involving any matter under Part B of the IDEA, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

    (b) Requirements
    The procedures must meet the following requirements:

    (i) The procedures must ensure that the mediation process:
    (a) Is voluntary on the part of the parties;
    (b) Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of the IDEA; and
    (c) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
    (iii) The Ohio Department of Education shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
    (iv) The Ohio Department of Education shall select mediators on a random, rotational, or other impartial basis. Both parties to the mediation must be involved in selecting the mediators and agree with the selection.

    (c) Impartiality of mediator

    (i) An individual who serves as a mediator under this rule:
    (a) May not be an employee of the Ohio Department of Education or any school district or agency that is involved in the education or care of the child; and
    (b) Must not have a personal or professional interest that conflicts with the person’s objectivity.
    (ii) A person who otherwise qualifies as a mediator is not an employee of a school district of residence or state agency that receives a subgrant under Section 611 of the IDEA solely because the person is paid by the agency to serve as a mediator.

    GUIDANCE

    A brief overview of Mediation is described in the chart "Conflict Resolution Processes."

    When a dispute arises regarding the education of a child with a disability and an impasse is reached, the school district contacts the parents (or the child if the child has reached the age of majority (18 years) and rights under Part B have been transferred to the child) to determine if they are interested in participating in mediation offered through the Ohio Department of Education, Office for Exception Children (ODE/OEC)

    • The ODE/OEC manages a statewide special education mediation system. Mediation is available through the system without the need to request a due process hearing or file a complaint. Whenever a due process hearing is requested by the parents or the school district or a formal complaint is filed by the parents, the OEC will offer both parties the opportunity to resolve their dispute through the mediation process.
    • Mediation is suitable for addressing any issue regarding a child’s eligibility for services, the services provided, or the manner in which the services were provided, including the scope of the services in question.
    • If parents initiate the request for mediation, ODE/OEC contacts the school district to determine whether they will agree to mediation.
    • To avoid confusion regarding the various conflict resolution options available under the IDEA and from the ODE/OEC, when an impasse is reached the school district should refrain from using the term "mediation" to refer to any district-level process for resolving disputes.

    The school district suggests that the parents review the information on mediation in Whose IDEA Is This? and also informs them that documents entitled Statewide Special Education Mediation Procedures: A Guide for Parents, School Districts and Parent Advocacy Agencies and Mediation Procedures for Special Education, A Guide for Parents are posted on the ODE Web site at http://education.ohio.gov, keyword search: mediation procedures.

    • The school district should offer to make a copy of this guide available to the parents and informs the parents that they may contact the ODE/OEC to obtain additional information about mediation.


    Mediation must be mutual and voluntary. If both parties are interested in participating in mediation, either party may call, fax or e-mail the OEC to request mediation. Contact:

    Chrissy Cline, Due Process Coordinator
    Toll free: (877) 644-6338
    Fax: (614) 728-1097
    E-mail: chrissy.cline@ode.state.oh.us

    Selecting and agreeing upon a mediator

    If both parties agree to mediation, the school district and parents select a mutually agreed upon mediator from the list of three mediators provided by the ODE/OEC and then submit the mediator’s name to ODE/OEC. The ODE/OEC assigns the agreed-upon individual to serve as mediator. Mediators are impartial third parties who are trained in effective mediation techniques and who are knowledgeable in laws and regulations regarding special education and related services.

    • If the district and parents cannot agree upon a mediator from the list of three, they may choose from the list of mediators maintained by ODE/OEC. A list of Ohio mediators and their qualifications is posted on the ODE Web site at www.ode.state.oh.us, keyword search: mediators in ohio.
    • If the district and parents still are unable to reach agreement within 10 calendar days, but still wish to mediate, the ODE/OEC may appoint a mediator if both parties agree.

     

    Whenever parents file a state-level complaint against a school district or a due process hearing is requested by either the parents or the school district, the ODE/OEC will offer to both parties the opportunity to take their dispute to mediation.

    • If a state complaint has been filed and the parties have agreed to mediate but are unable to reach agreement on a mediator, the ODE/OEC may appoint a mediator, if both parties agree. If the parties do not agree to ODE/OEC’s appointing a mediator, the ODE/OEC will move forward with the complaint as if the mediation was unsuccessful.
    • If a due process hearing has been requested and the parties are unable to reach agreement on a mediator, the ODE/OEC may appoint a mediator, if both parties agree. If the parties do not agree to ODE/OEC’s appointing a mediator, the ODE/OEC will move forward with the due process request as if the mediation was unsuccessful, unless the parties agree to waive the mediation process.

    Faciliated resolution meetings

    Mediators also are also available through the ODE/OEC to facilitate resolution meetings. When mediators serve in this role, they follow the rules for the resolution process described in Procedural Safeguards - 5.14 Resolution Process.
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (ii) A school district of residence may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party:
    (a) Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the state established under Section 671 or 672 of the IDEA; and
    (b) Who would explain the benefits of, and encourage the use of the mediation process to the parents.
    (v) The Ohio Department of Education shall bear the cost of the mediation process, including the costs of meetings described in paragraph (K)(3)(b)(ii) of this rule.

    GUIDANCE

    Procedures to offer to parents and schools that choose not to use mediation

    When the school or parents do not mutually agree to mediation, the school district may offer to make an impartial person available to explain the benefits of mediation and encourage participation in the mediation process.

    If the school and parents agree to such a meeting, school district personnel make arrangements for a meeting by:

    • Scheduling the meeting at a time and location convenient to the parents; and
    • Making arrangements for a person to be available at the agreed-upon time. Agencies that may assist in identifying a person to explain the benefits of mediation include:

    The school district makes arrangements for interpreting services if the parents are hearing impaired or deaf, or if the parents’ native language is not English; assures that the meeting place is accessible; and provides other needed accommodations.

    • The ODE/OEC pays for costs related to this meeting.

    The school district may not deny or delay the parents’ right to a due process hearing if the parents fail to participate in this meeting.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (vi) Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute.
    (x) No part of the mediation discussion or sessions may be electronically recorded. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any federal court or state court of a state receiving assistance under the IDEA. The mediator may not be called as a witness in future proceedings related to the mediation sessions.

    GUIDANCE

    Scheduling of mediation

    Once selected, the mediator contacts the parents and school district to identify a time and location for the mediation that is agreeable to all parties.

    • The mediator will schedule the mediation within five business days of receiving the appointment from OEC.
    • The mediation will be completed within 20 business days of the mediator’s scheduling the mediation session.
      • Extenuating circumstances such as scheduling difficulties and the inability of the mediator to reach the parties may result in an extension of the timelines. However, it is important that mediation always be scheduled and completed as soon as possible.
      • The length of the mediation process cannot be used to extend the timelines for state complaints or due process hearings, unless the ODE/OEC approves an extension in the case of state complaints or the hearing officer approves an extension in a due process request. (See requirements in Procedural Safeguards - 5.12 State Complaints and Procedural Safeguards - 5.15 Impartial Due Process Hearing).

    The school district will make arrangements for a neutral site for the mediation.

    • The site for the mediation should have two rooms, one for the mediation session and one for a party to wait while the mediator is meeting with the other party (caucus).
    • A copier must be available to ensure that copies of any signed agreement can be made for all parties.

    The school district makes arrangements for interpreting services if the parents are hearing impaired or deaf, or if the parents’ native language is not English, or any other accommodations (e.g., wheelchair access) that are needed by individuals who will participate in the mediation.

    The school district and parents each determine whom they want to include in the mediation. The parties do not need to agree on the individuals who will participate. Typically, the number of participants is kept to a minimum. The district should give consideration to including:

    • A school district administrator;
    • A representative of the school district that has the authority to commit resources (this could be the school administrator);
    • The person in the district responsible for special education services (e.g., a special education director or coordinator or a pupil personnel director);
    • Anyone else who may have unique information regarding the student (e.g., teacher, related services provider, doctor, psychologist);
    • Parents may choose to have the child with a disability who is the subject of the mediation process present for all or part of the mediation, at their discretion. The appropriateness of a child’s attendance generally depends on the age and maturity of the child. Because transition planning and transition services are designed to take into account the student’s preferences and interests, it is appropriate for a student with a disability receiving these services to attend and to participate in the mediation process.
    • The school district's attorney. Parent and school district attorneys may participate in the mediation.

    The school district and the parents may inform the mediator of who will attend the mediation. The school district and parents may want to ask the mediator to identify the potential participants. This may avoid an issue when the individuals arrive at the mediation. Mediation is voluntary, and either party has the right not to participate in the mediation process for any reason, including dissatisfaction with the participants slated to be in attendance.

    The school district and parents should prepare for the mediation by:

    • Identifying the issues to be discussed;
    • Organizing documents and making three copies of each (one for the district, one for the parents and one for the mediator);
    • Anticipating questions the other party may ask; and
    • Considering possible solutions to the problem.

      Special Education Mediation: A Guide for Parents, The Alliance and CADRE.

    The school district should send a representative who has the authority to commit resources to the mediation.

    The parties involved in the mediation will sign an Agreement to Mediate form indicating that they have been fully informed of the mediation process and agree to abide by the procedures and guidelines governing the process.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (vii) If the parties resolve a dispute through the mediation process, the parties must execute a legally-binding agreement that sets forth that resolution and that:
    (a) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and
    (b) Is signed by both the parent and a representative of the school district who has the authority to bind such school district.
    (viii) A written, signed mediation agreement under this paragraph is enforceable in any state court of competent jurisdiction or in a district court of the United States.

    GUIDANCE

    Executing a legally-binding agreement

    Parties to the mediation process may sign a confidentiality pledge before the process begins. Because discussions that occurred during mediation must remain confidential, they may not be used in any subsequent due process hearings or civil proceedings.

    The parents and the school district representatives jointly develop the written agreement, with the assistance of the mediator.

    • If the subject of the mediation is a state complaint or a due process request and all the pending issues are resolved, the written agreement includes a statement indicating that the complaint or the due process request is withdrawn.
    • The school district representative and the parents sign a Due Process and/or Complaint Withdrawal Form and submit it to the ODE/OEC.

    In the case of a due process hearing request in which a due process hearing officer has been appointed, the school district submits a copy of the Due Process and/or Complaint Withdrawal Form to the hearing officer and to the ODE/OEC.
    In the case of a state complaint, the school district forwards the Due Process and/or Complaint Withdrawal Form to the Mediation Coordinator at ODE/OEC.

    The school district and parents proceed to implement the agreement.

    If the parents or the school district feel the other party is violating the mediation agreement, the dissatisfied party may request that a state court of competent jurisdiction or district court of the United States enforce the agreement. A mediation agreement cannot be enforced by filing a state complaint or a due process complaint.

    If the parties do not reach an agreement and the subject of the mediation is a state complaint or a due process request, the parties proceed with the complaint investigation or the due process hearing.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (ix) If the mediation requires changes in the IEP, the IEP team shall be convened to incorporate changes into the IEP within twenty school days following the mediation agreement or as agreed to in the mediation agreement.
    (v) The Ohio Department of Education shall bear the cost of the mediation process including the cost of meetings described in paragraph (K)(3)(b)(ii) of this rule.

    GUIDANCE

    Incorporating mediation changes in the IEP

    The IEP team meets within twenty school days following the mediation agreement or as agreed to in the mediation agreement and revises the IEP to reflect the terms set forth in the written agreement. The revised IEP is implemented immediately following the IEP meeting.

    Costs of mediation

    The ODE/OEC will pay for the mediation (compensation for the mediator) and related costs such as non-English- language interpreters and interpreters for the hearing impaired.

    If the parents are represented by an attorney during the mediation session, the school district is not responsible for paying the parents’ attorney fees unless stated as part of the mediation agreement (Whose IDEA Is This? page 32, June 14, 2010).

     

Last Modified: 7/11/2013 4:02:08 PM