This is a transcript of Understanding the Mediation Process, from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. This podcast can be found here. This conversation focuses on mediation: what it is, what happens with it, what it feels like, and how a parent should respond when it is time to do the mediation.

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00:02 Michael Boll: You’re listening to Special Education Matters, a regular podcast about things that matter in special education. I’m your host, Michael Boll, and I am the proud father of an 18-year old boy with autism. I’m here to introduce a special series we are running on our podcast, Special Education Matters. Our lead attorney, Richard Isaacs, and others will be discussing the process and steps that happen when a parent decides to work with us. Today Richard and I talk about mediation. Mediation is the process ordered by the California Office of Administrative Hearing after a due process complaint has been filed. Enjoy! Alright, Rich, today we’re gonna talk about mediation and what it is, when to do it, what happens, what it feels like, and should I be freaking out as a parent when it’s time to do a mediation. So let’s start right at the beginning. Can you give us an overview of what mediation is?

00:52 Richard Isaacs: Yeah, mediation is an opportunity for the school district — usually their attorney will be with them, a district administrator, like the special education director, and they may have a program specialist as well, and they’ll sit down with the family and the Office of Administrative Hearings will provide the mediator. Typically that’s an administrative law judge, an ALJ. Sometimes it’s just a mediator meaning they don’t actually hear or try cases, they just help mediate and that takes place at the school district office.

01:20 MB: So tell me about the process itself in that when does it happen? What are the overall steps that I go through as a parent? When do I hit mediation?

01:28 RI: So mediation typically happens right before hearing. It’s the last opportunity — I shouldn’t say last — but it’s the last official opportunity to sit down with the district. You have a mediator present to work out a resolution. The court requires it to be within 60 days of the hearing date.

01:46 MB: As we reviewed I think on the last show you set a hearing date first, and then the mediation, you don’t start with mediation, you start with a hearing date, and then in front of that is the mediation, right?

01:56 RI: Correct. So the court will set the hearing date and let’s say the court sets a date six weeks from the point or the six or seven weeks, or when you file — there is no mediation date set — the parties will work together to come up with a mutually agreed upon date for mediation. Oftentimes, what happens is we file a request for mediation, and then we also file request at the same time to continue or push out the hearing dates. The only requirement from the court is that the mediation is held within 60 days of the hearing date that we’re requesting.

02:32 MB: Okay. . so just to go back on it… so I have to first file a due process complaint asking for a hearing, and then the mediation should get triggered. I can’t just say, I wanna do a mediation, can I?

02:41 RI: This is where it gets a little bit confusing. The parents can… the parents can actually, if they don’t have an attorney and an attorney cannot do this, the parents can actually file for mediation only, and that gives them an opportunity to have the state provide a mediator that they can sit down with the school district. But again, attorneys can’t go and attorneys cannot use that tool. My problem with that is there’s no consequence that there’s no settlement, so if parents go to mediation and there’s no resolution, then what do they do? There’s nothing after where when we file the due process complaint and then schedule mediation. If we don’t settle at mediation, the next step is to go to a trial, and that’s a consequence.

03:23 MB: Okay so they have that hanging over their head in a sense the district does, but I mean I can still do that if I go to mediation and I file it on my own and I don’t like it then I could file a due process complaint, right?

03:34 RI: You could… I think a better tool for families would just be, and in a lot of school districts they offer this, is their internal IDR, their own resolution dispute process where you can sit down, you don’t have the mediator, but you can sit down and try to work through your differences. If you file for mediation only, that just pushes things out, and then you still have to file for due process, which pushes things out. And there are statute of limitations issues that come into play.

04:02 MB: Oh, sure. Okay. Alright, so let’s talk about the process then and what it’s like. So if I go into mediation is it some exciting thing where there’s thousands of people watching and cameras asking me how I felt when it came out, or is it a little less interesting than that?

04:17 RI: It’s very much less interesting in that. It’s really no pressure. It’s at the school district for the most part. Sometimes it’ll be at the school site or different school site, but most of the time it’s at school district offices and you’ll have a conference room, the state like I said provides the mediator, which is often the ALJs and the ALJs live throughout the state, and they’re assigned to zones. We have San Diego office and they cover Orange County, the Inland Empire. We have the Los Angeles office, which also covers the Inland Empire in Orange County. And then there’s an Oakland in Sacramento office, and sometimes we get mediators ’cause they’re busy that are flying down from Sacramento, to go to mediation in Orange County. So the mediators will meet the parties at the school site. Every mediator has their own style, but the idea is that they usually start at 9:30 in the morning and you’ll spend the first half hour just getting to know the the mediator explaining a few of the issues. Sometimes the parties will meet together first. The mediator would do an opening statement, just explain the mediation process, how it’s informal and the benefits of the mediation, then oftentimes, the parties will separate into different rooms.

05:29 MB: Oh, really? And then the mediator will talk to them in each room?

05:33 RI: The mediator will go back and forth, bringing offers and counter-offers. And oftentimes what happens is it’s the district that really takes a long time, and that might be because they’re calling different people in the district who may know the student, because sometimes in mediation, you just have the district admin who’s never met the student, so they may need to get more information on there and see what resources and talk to people in terms of services that we’re requesting reimbursement and stuff like that. But the mediator will go back and forth. And a good mediator leverages both parties and really pushes them to reach a settlement.

06:10 MB: Okay so you do or you don’t bring your attorney or it’s optional?

06:16 RI: No, if you’re gonna be in mediation based on with a due process filing, it’s typically because you have attorney. Now, parents who file on their own, they can obviously go to mediation, but because the point of mediation is to settle it and get a settlement agreement, you really want an attorney to look at the language of that settlement to make sure that you’re protected.

06:37 MB: Okay. That’s one of the important things. So if you go to hearing, it’s a little bit of a roll of the dice ‘cause you make your point, the district makes its point, then the administrative law judge renders the decision, but the difference with mediation is that you are part of that final decision, ’cause you can just choose not to sign it, right? Talk about that.

06:55 RI: Right. So the scary part about not settling a case, and I say scary because you’re really just rolling the dice, instead of reaching a resolution, you absolutely know what you’re gonna get. So if you go to mediation and settle the case and you get X dollars in reimbursement for say, private services and so many speech hours and OT hours or whatever you’re looking for, if you settle on a number, you know that you’re gonna get that. If you don’t settle and you go to hearing. there is no guarantee that the judge is gonna rule in your favor. So you’re really just rolling the dice. Often times we can be more creative in reaching a resolution, meaning we can get things agreed upon between the district and parents for services that the court’s never gonna grant. We have students placed at private schools that the court will never order the district to to pay for that private school, but we can do it in a settlement. So there is a strong benefit. The only time we’ve been to hearing is when the district really comes to the table with nothing and pushes us to hearing. And if they’re not gonna offer anything and the cost benefit analysis really sways in favor of hearing, because we have nothing to lose other than there’s a time next — we have nothing to lose because we’re not gonna give up any services ’cause they’re not offering. And for an example, that might be an eligibility case for the district just says, no, we’re not gonna make this ineligible, no IEP. Well, in that case, we have to go to due process and put it in the hands of a judge.

08:18 MB: In general though, what’s your experience when it comes to the mediation? Is it a pretty good thing that works or are districts now trying to say, I’m just gonna come with nothing and push you to hearing?

08:27 RI: What we’re finding now, it changes. There’s always cycles, but right now, it seems that we’re in a cycle that we’re not settling as many cases in mediation. It doesn’t mean that mediation’s not appropriate or effective, ’cause we do make progress in the settlement discussions. We have a discussion, we understand each other’s positions and there’ll be a few offers back and forth, but we just don’t have an agreement. What I’m finding is as the closer we’re getting to hearing, meaning one week, even days before hearing, we’re reaching the settlement and getting the numbers that we had originally requested a couple months before. Also, the second piece of this is the quality of the mediators really varies. There are some excellent mediators that I feel really push and help the parties resolve things and there’s some mediators that have a real hands off approach, and they don’t do anything. And at that point, mediation is really not being effective.

09:24 MB: Alright, so in the end then it’s possible that it’s not gonna work out for your mediation. That might even be the strategy of the district, but you still see it as a worthwhile effort to put some time and energy into.

09:38 RI: I do, and I think that we’re also talking to opposing counsel, and if we feel that we can make more gains just by going back and forth ourselves with our clients and pushing things forward, we are also settling cases outside of mediation and just not wasting the time or resources. A mediation typically takes all day. And I’ve started doing half day mediations and just getting in there for three hours, and if we can resolve it, great. If not, we’ll just continue outside of mediation. But for families, understanding, you know, mediation starts to 9:30. oftentimes it’ll go to four or five. It’s been a while that I’ve had a mediation go well into the evening hours, and because both parties wanted to stay and knock things out, and we were able to reach a resolution. But it’s been a while since that’s happened. Mediation is a slow process. If we get an agreement in principle, usually we can do that in the first few hours, but then it might take a couple more hours to work on the language of the agreement, meaning the district’s gonna draft the agreement. We have to read it, make some adjustments, go back to the district, sometimes we have to negotiate over the language, it’s just a slow process. One thing I tell families — bring some snacks, plan on being there all day. It’s not stressful because we don’t have to settle, but it’s an opportunity to sit down and work towards resolution. It’s just a slow process.

10:57 MB: So what’s more entertaining? Being at mediation for your child or buying a

used car?

[chuckles]

You don’t have to buy the car in the end, I guess, but you do have to help your child!

11:08 RI: That is true!

11:10 MB: Okay next up we’ll talk about the hearing process itself, if mediation didn’t work out. Thanks for listening to another edition of Special Education Matters. For more information, including show notes, head to our website, csnlg.com/listen. And if you like what you hear, please consider giving us a review on iTunes. Those reviews bring us lots of happiness. I’m your host, Michael Boll, and we will talk again soon!

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This is part of our complete Beginner’s Guide to the Special Education Legal Process.