Questions and Answers about Mediation of Disputes Regarding Special Education
What is mediation?
Mediation is a voluntary, confidential process where a neutral third-party (the mediator), helps parents and educational representatives come together to talk and decide how to resolve their differences and problems themselves. Mediation treats disputes as mutual problems to be solved cooperatively by parents and schools. The mediator does not take sides or make decisions. The mediator enables and empowers the parties to reach an agreement that they both can live with.
How does mediation work?
Before the mediation starts, you will be asked to read and sign a Confidentiality Agreement. By signing that, you agree the mediation is confidential and that you will mediate in good faith. You are also agreeing to comply with the rules governing the mediation session. At the mediation, the mediator will give all parties an opportunity to express their point of view in a safe, comfortable environment. In most cases, the parties and the mediator will initially be in the same room. At different times throughout the mediation process, the mediator will meet with each party privately while the other parties wait outside. The private meetings allow the parties to share sensitive information with the mediator and to come up with and test possible solutions and ideas with the mediator, before presenting them to the other parties.
The mediator will try to help the disputing parties reach an agreement that is fair and acceptable to everyone. The mediator serves as a guide for the process, while the parties create the agreement.
What does it mean that the mediation is confidential?
Discussions that occur during the mediation process may not be used as evidence in any subsequent due process hearing or civil proceedings. All parties are required to sign a Confidentiality Agreement prior to the mediation session. In addition, whatever you say in mediation (whether it is when you and the mediator are talking alone, or when you and the other party are talking with the mediator), will not be repeated outside the mediation by the mediator. All of the mediators notes are destroyed at the end of the mediation. The Mediation Center of the Pacific will not provide information about the mediation to anyone besides the parties to the mediation.
What does it mean that the mediation is voluntary?
It means that both parties must agree to mediate. If one party does not want to participate, then the mediation cannot occur. Either party may end the mediation at any time, for any reason.
What if I don’t want to settle in mediation?
That is your choice. The mediator will not tell you what to do. If you and the other party are unable to come up with an agreement in mediation, then you can request a hearing (if you have not done so already), or proceed with the hearing that has already been scheduled.
What are the advantages of mediation?
Mediation gives you and the other party the chance to focus on the best interests of the child and resolve the dispute yourselves with that interest in mind. Most people are more satisfied with resolutions that they develop, rather than have them imposed. Mediation also allows you to resolve your claim in less time than it would take for a hearing. Whether or not you are able to come to a resolution, mediation offers the opportunity to clarify issues that will be addressed in the hearing. That way, less time will be required in the hearing process.
Should I bring an attorney or advocate to the mediation?
Usually only the disputing parties and the mediator are present at the mediation session to encourage conversation between the parties themselves and minimize the adversarial nature of the dispute. If an agreement is reached and put in writing, you can take the agreement to your attorney or advocate for review, before signing it. You may also contact your attorney or advocate via telephone, at any time during the mediation.
If you would like your attorney or advocate to attend the mediation, then you should contact the Mediation Center’s Client Services Department prior to your scheduled session. Attorneys and advocates are reminded that mediation is not an adversarial proceeding but a problem-solving process in which both parties seek a solution, not a victory. Attorneys and advocates can help parties develop offers, find solutions and write the agreement with the mediator.
Should I bring witnesses to support my case?
No. There are no witnesses or judges at a mediation session. Generally, only the disputing parties and the mediator are present at the mediation. The purpose of the mediation is not to determine who is right or wrong. Instead, the purpose is for the parties to talk with each other and to work out a mutually acceptable agreement to settle the dispute.
May I bring a family member or friend to the mediation?
Again, only the disputing parties (e.g. both parents and/or guardians, service providers, principals, DOE representatives who have the authority to make decisions, etc.), and the mediator attend the mediation session. If you would like a friend or an additional family member to accompany you to the mediation for support, they will be asked to sit in the waiting area while you are in the mediation room.
Where and when will the mediation occur?
The Mediation Center’s Client Services Department will contact you to schedule the mediation and assign a mediator to the case. All mediators are selected according to their experience and training and are assigned accordingly. Most mediations take place at the Mediation Center’s office. However, if the Mediation Center is not convenient, the parties may agree to an alternate setting. Additional mediation sessions may be scheduled if you are unable to resolve the dispute in one session and are making progress toward an agreement.
Who are the mediators?
The Mediation Center of the Pacific provides trained mediators. These mediators have significant mediation experience and have completed specialized training to mediate Special Education cases. The mediators are assigned by the Client Services Department according to the issues in dispute and the training of the mediator.
What happens if we are unable to reach an agreement in mediation?
If you are unable to reach a mutually acceptable agreement on any or all of the issues, then the case will return to Hearing (if one is scheduled) to address all remaining issues. If an agreement is reached on one or more of the issues, then the terms of the agreement for those issues only, may be put in writing and those specific issue(s) will not be addressed at the subsequent Hearing.
What happens if we reach an agreement through mediation?
If an agreement is reached, the parties will work with the mediator to put the specific terms of the agreement in writing. A copy of the Agreement will be provided to both parties and the DOE will be notified that an agreement was reached. The case will then be closed. The parties may then send a copy of the agreement to the hearings officer with a notice to withdraw the complaint (if a hearing is scheduled).
IF YOU DECIDE TO COME INTO MEDIATION
Several days prior to the mediation, provide school representatives with copies of any information or the results of any recent independent evaluations that you would like to discuss during the mediation. Remember to also bring copies of the documents to the mediation. Think about the situation and organize your issues. Consider options for settling the conflict and how you can help to resolve it.
Participation in mediation is voluntary and requires that you participate in good faith. This means that you must be willing to solve your dispute by being honest, open-minded, and willing to listen to the other party with respect and courtesy.
Mediators are impartial. Mediators will help you talk with the other party and help you work out a mutually acceptable solution to settle the dispute. Mediators will not make decisions for you, nor will they take sides. Since it is not the mediators’ job to provide information, please collect all of the information and facts you need before you come to mediation.
Mediation is most effective when you keep in mind the following points:
KNOW WHAT TO EXPECT OF THE MEDIATOR. The mediator is a neutral third party who will help you talk to each other and help you resolve your dispute with fair solutions that will work for both of you. The mediator is not a judge, counselor, or advocate. The mediator will not judge who is right wrong, or tell you what to do.
PREPARE FOR THE MEDIATION. The better prepared you are, the smoother the process will go. Collect and bring all the facts and information you need to the mediation to share with the other party.
NOTIFY THE MEDIATION CENTER IN ADVANCE. If you have any problems, concerns or special needs, contact the Mediation Center’s Client Services Department prior to the scheduled mediation. If you are unable to attend the mediation, contact the Mediation Center immediately at 521-6767. The Client Services Department is open Monday through Friday 8:30 am to 4:30 pm.
THE RESPONSIBILITY FOR RESOLVING THE DISPUTE LIES WITH YOU. Mediation provides the opportunity for you and the other parties to actively participate in the resolution of the dispute with the best interests of the child in mind.
For more information, see the Special Education Mediation brochure by clicking here