1. How is mediation different from a hearing?
There are several significant differences:
- Mediation is voluntary; participation in a hearing is mandatory;
- Mediation is more informal than a hearing;
- Mediation usually takes several hours; a hearing can take from one to three days, or more;
- Mediation does not usually involve lawyers (although you have the right to have one with you, if you choose); and
- Mediation allows the parties to create their own agreement with the help of a mediator rather than have a decision rendered by a hearing officer.
2. Why consider mediation?
Mediation offers an informal, collaborative and effective way for parents and educators to resolve their differences. Mediation has many benefits for parents, educators and service providers, including:
- Families can maintain an ongoing and positive relationship with the school system and benefit from collaborating with educators or service providers in developing their child's program.
- Conflicts that arise out of misunderstandings or lack of shared information can be resolved with mediators helping parents, educators and service providers to communicate directly with one another.
- Special education issues are complex and can best be solved by working together.
- Mediation tends to be faster and is free or far less costly than due process hearings and/or court proceedings.
- Mediation results in agreements that participants find satisfactory and research shows that people tend to follow the terms of their mediated agreements.
3. What issues can be mediated?
Parents and educators involved in the mediation decide together what issues they want to resolve in mediation. Usually the issues discussed relate to the child's evaluation, eligibility, IEP, programs or placement, discipline concerns, and/or transition services.
Mediation often helps address communication and relationship issues that affect the working relationship of parents and educators.
4. Who may request mediation? When can you ask for it?
The student's parents, legal guardian, educational surrogate parent, adult student (18 years or older), the school district or public agency or an attorney or advocate representing any of these people may request mediation.
Mediation may be requested at any time a parent or an educator has an interest in resolving issues related to a child's special education. Mediation may also be requested before or at the same time as a due process hearing request.
5. What is the role of the mediator?
The mediator's role is to help the parties use the process to understand each other's perspectives more fully and to consider and develop possible solutions to the dispute. The mediator does not make decisions. While the mediator remains neutral and impartial throughout the process, s/he may generate suggestions and alternatives for both parties to consider.
6. How are mediators selected and what happens after they are selected?
Parents or educators may request mediation by contacting the BSEA by telephone or in writing. The BSEA will provide the name and telephone number of the mediator assigned to their region. Parents or educators may also request a randomly assigned mediator by contacting the Coordinator of Mediation, at (617) 626-7291 or via mail, c/o BSEA, One Congress Street, Boston, MA 02114.
The person requesting mediation initiates the process by contacting the mediator. The mediator will then call the other party to see if s/he is interested in participating. If so, the mediator, in consultation with the parties, determines a mutually available date, time and location for mediation and communicates the information to each party.
7. How soon is mediation scheduled?
Mediation is usually scheduled within 30 calendar days after parents and educators agree to mediate.
8. Who participates in the mediation session and may participants bring other persons to the mediation session?
Yes. Parents and/or educators may bring other persons who can assist the process (e.g. attorneys, advocates or people who know the student and his/her needs and/or district programs and staff). However, to keep the session informal and manageable, the number of additional persons should be kept to a minimum.
The participation of older students is welcomed and can be helpful in reaching agreements. Adult students must participate unless a guardian or other representative attends in their place.
If there is a disagreement about who will participate, the mediator will work with the parties to decide how the matter will be resolved.
It is important to be informed about your rights. Advocates and/or attorneys can sometimes be helpful in assisting parties in developing solutions and options during the mediation. While you are not required to bring an advocate and/or an attorney to the mediation session, it may also be helpful to consult with one as you prepare for mediation.
9. How long is a mediation session?
In general, mediations can take anywhere from 2-5 hours. Occasionally they may last as long as a full day. The mediator and the parties may decide to schedule more than one session, if needed.
10. What happens if an agreement is reached/not reached?
If an agreement, is reached the mediator, with the help of the parties, puts the agreement in writing. The parties usually sign this agreement before the mediation session is concluded. The mediation agreement is not in force until it is signed by both the parent and a school representative.
All parties should receive a copy of the written agreement.
If the parties are unable to reach agreement, the participants may consider other dispute resolution options. In some cases, another mediation session may be scheduled if the mediator and the parties determine that progress may be achieved in another session.
11. If I am uncomfortable talking about my concerns in the joint session, can I ask for a private meeting with the mediator?
Yes. Mediators may hold private meetings or "caucuses" with parties during mediation. Participants can ask for a caucus with the mediator at any time. A caucus may be used when people: (1) become upset during the mediation process; (2) experience frustration in response to comments or actions of others; (3) have personal feelings that affect their participation; or (4) want to share information or an idea for resolution privately.
12. Are discussions in mediation confidential?
Yes. Under federal law, "discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings…"
Prior to the commencement of the mediation session, the mediator verbally advises the parties about mediation confidentiality. The mediator then asks the parties to sign an Agreement to Mediate Form, which includes information about confidentiality requirements for discussions held in mediation.
Mediation are participants expected to maintain the confidentiality of discussions in mediation by acknowledging and acting in accordance with the following:
- The mediator and participants will not reveal to anyone, including a hearing officer or a judge, the content of any discussions, which take place in the mediation;
- The parties and their attorneys will not call the mediator or anyone associated with the mediator as a witness in any legal proceeding concerning this dispute; and
- The parties and their attorneys will not subpoena or demand any records, notes, or work products of the mediator in any legal proceeding concerning this dispute.
- The only written record of the mediation discussions is the signed mediation agreement, which is generally attached to and amends the IEP.
13. Who are the mediators and how can I find out more about mediation?
All BSEA Mediators are trained and skilled in mediation and knowledgeable about special education laws and regulations. Mediators do not have personal or professional interests that would conflict with their objectivity in the mediations.
For more information about mediation, contact the BSEA Coordinator of Mediation at (617) 626-7291. In accordance with the Individuals with Disabilities Education Act (IDEA) Amendments of 1997, the BSEA will provide a qualified and impartial mediator for you. The BSEA will provide you with the name and telephone number of the regional mediator or, upon request, a randomly assigned mediator.