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U.S. Department of Education: Promoting Educational Excellence for all Americans

Mediation (Sec. 300.506)

Comment: Several commenters stated that the S. Rpt. No. 108-185 expressed Congressional intent for a hearing officer to have the same plenary power over a due process hearing as a Federal or State judge. The commenters, therefore, recommended permitting a hearing officer to require mediation.

Discussion: Section 300.506(a) incorporates section 615(e)(1) of the Act and requires public agencies to establish and implement procedures to allow parties to disputes involving any matter under Part B of the Act, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process. Section 615(e)(2)(A)(i) of the Act requires the public agency to ensure, among other things, that the mediation process is voluntary on the part of the parties. In light of these explicit statutory requirements, we do not believe that a hearing officer can order that the parties to a due process complaint engage in mediation.

Changes: None.

Comment: One commenter suggested that the regulations include language to ensure that the mediation process is not used to deny or delay a parent's right to have a State complaint investigated.

Discussion: We do not believe that additional language is necessary to address the commenter's concern. Section 300.506(a) requires each public agency to ensure that procedures are established and implemented to allow parties to disputes involving any matter under Part B of the Act, including matters arising prior to the filing of a due process complaint, to resolve disputes through mediation. We believe that parties could use mediation prior to, or after, filing a State complaint.

Section 300.506(b)(1)(ii), consistent with section 615(e)(2)(A)(ii) of the Act, is clear that mediation cannot be used to deny or delay a parent's right to a hearing on the parent's due process complaint, or to deny other rights afforded under Part B of the Act. "Other rights under Part B of the Act" include a parent's right to file a State complaint and to have that complaint resolved within applicable timelines. If the parties involved voluntarily wish to engage in mediation once the complaint is filed, and the mediation is not successful in resolving the dispute, the entity responsible for resolving the complaint at the State level must ensure that the complaint is resolved within the applicable timelines in Sec. 300.152. Mediation is not an exceptional circumstance that would justify extension of the 60-day timeline for issuing the final decision in a State complaint, unless the parties agree otherwise. However, as provided in Sec. 300.152(b)(1)(ii), the parent and the public agency involved can agree to extend the time limit to engage in mediation to resolve the complaint.

Changes: None.

Comment: One commenter recommended allowing parties in a dispute to engage in mediation and have the mediator facilitate the IEP Team meeting to incorporate the terms of the mediation agreement into the child's IEP.

Discussion: Although not required by the Act, there is nothing in the Act that would prohibit the parties in a dispute to agree during mediation to have the mediator facilitate an IEP Team meeting and to incorporate the terms of the mediation agreement into the child's IEP.

Changes: None.

Comment: Some commenters suggested defining "effective mediation techniques" as techniques recognized by any State or national accreditation or professional mediation association. The commenters also recommended requiring a formal training and certification process for mediators, which is created and paid for by the SEA.

Discussion: We decline to define "effective mediation techniques" in the manner suggested by the commenters. States have used a number of successful techniques over the years to resolve disputes between parents and public agencies, and we do not want to restrict a State's discretion by providing a particular definition. Whether formal training and certification for mediators is required is a decision best left to each State, depending on State policy.

Changes: None.

Comment: A few commenters recommended requiring mediators to be unbiased and knowledgeable in laws, regulations, and best practices related to children with disabilities. Some commenters recommended requiring the list of mediators to include information on the mediator's qualifications. Other commenters recommended that the list of mediators and their qualifications be provided to parents and the public.

Discussion: We do not believe additional regulations regarding the qualifications of mediators are necessary. Section 300.506(b)(3), consistent with section 615(e)(2)(C) of the Act, requires States to maintain a list of individuals who are qualified mediators and knowledgeable in the laws and regulations relating to the provision of special education and related services. In addition, Sec. 300.506(c)(1)(ii) requires impartial mediators who do not have a personal or professional interest that would conflict with the person's objectivity.

Parents do not select the mediator to mediate a particular case. Rather, Sec. 300.506(b)(3)(ii) requires that the process for selecting mediators be impartial. Therefore, we do not believe that public agencies should be required to provide the list of mediators and their qualifications to parents and the public. However, there is nothing in the Act that would prohibit a State from making this information available to parents and the public, if it chooses to do so.

Changes: None.

Comment: One commenter recommended that the regulations clarify whether the public agency is required to offer parents who choose not to use the mediation process an opportunity to meet with a disinterested party.

Discussion: We believe the regulations are clear. Section 300.506(b)(2), consistent with section 615(e)(2)(B) of the Act, states that a public agency may establish procedures to offer parents and schools that choose not to use mediation, an opportunity to meet with a disinterested party who would explain the benefits of, and encourage the use of, mediation. Therefore, States may establish such procedures, but are not required to do so. No further clarification is necessary.

Changes: None.

Comment: One commenter objected to the requirement in Sec. 300.506(b)(3)(ii) that States select mediators on a random, rotational, or other impartial basis, and requested retaining current Sec. 300.506(b)(2)(ii), which permits the parties to agree on a mediator when the mediator is not selected on a random basis.

Discussion: Section 300.506(b)(3)(ii) replaces current Sec. 300.506(b)(2)(ii) and requires the State to select mediators on a random, rotational, or other impartial basis. These provisions are sufficient to ensure that the selection of the mediator is not biased, while providing SEAs additional flexibility in selecting mediators. Selecting mediators on an impartial basis would include permitting the parties involved in a dispute to agree on a mediator.

Changes: None.

Comment: One commenter requested a definition of "timely manner" in Sec. 300.506(b)(5), regarding the scheduling of mediation sessions.

Discussion: Section 300.506(b)(5) incorporates section 615(e)(2)(E) of the Act and requires that the scheduling of each session in the mediation process be completed in a timely manner. It is not necessary to define "timely manner" because this requirement must be read consistent with the State's responsibility to ensure that the mediation process does not operate to deny or delay a parent's right to a hearing on a due process complaint, or to deny other rights afforded under Part B of the Act.

Changes: None.

Comment: Many commenters stated that mediation discussions should remain confidential and not be used in any subsequent due process hearings or proceedings. The commenters recommended that the phrase "arising from that dispute" in Sec. 300.506(b)(6)(i) and Sec. 300.506(b)(8) be removed. The commenters viewed these provisions as permitting confidentiality to apply only to the current issue in dispute, and not in other subsequent actions. Some commenters expressed concern that mediation could be used as "discovery" for some future dispute between parties, or for a simultaneous dispute between the same public agency and some other children, or disputes involving the same lawyers but different parties.

Discussion: We agree with the commenters that the phrase "arising from that dispute" should be removed in Sec. 300.506(b)(6)(i) or Sec. 300.506(b)(8). We believe that it is important to preserve the integrity of the mediation process to ensure that mediation discussions remain confidential and not be used in subsequent due process hearings or civil proceedings. To ensure that we do not interfere with the evidentiary privilege laws of States that might not participate in the Part B program (a possibility, but not a current actuality), we are adding new language that limits the confidentiality provision to apply to due process hearings and proceedings in any Federal court and any State court of a State participating in Part B of the Act.

Changes: We have removed the phrase "arising from that dispute" from Sec. 300.506(b)(6)(i). We also have removed the phrase "proceedings arising from that dispute" and replaced it with "proceeding of any Federal court or State court of a State receiving assistance under this part" from Sec. 300.506(b)(8).

Comment: None.

Discussion: Following the publication of the NPRM, the Department reconsidered the subject of confidentiality pledges prior to the commencement of mediation. Section 300.506(b)(9) was included in the NPRM in light of note 208 of Conf. Rpt. No. 108-779, p. 216, which indicates the Conference committee's intention that parties could be required to sign confidentiality pledges prior to the commencement of mediation, without regard to whether the mediation ultimately resolves the dispute. However, Sec. 300.506(b)(8), already requires that discussions that occur during the mediation process be confidential and not be used as evidence in any subsequent due process hearing or civil proceeding. Therefore, we are removing Sec. 300.506(b)(9). Removing Sec. 300.506(b)(9), however, is not intended to prevent States from allowing parties to sign a confidentiality pledge to ensure that discussions during the mediation process remain confidential, irrespective of whether the mediation results in a resolution.

Changes: Paragraph (b)(9) in Sec. 300.506 has been removed.

Comment: A few commenters expressed concern regarding the requirement in Sec. 300.506(c)(1)(ii) that mediators must not have a personal or professional interest that conflicts with "the person's objectivity." The commenters stated that disputes will arise and compromise the integrity of the proceedings without a mechanism to determine whether a conflict exists.

Discussion: Section 300.506(c)(1)(ii) incorporates section 615(e) of the Act, and provides that mediators must not have a personal or professional interest that would conflict with the person's objectivity. SEAs have an interest in ensuring that their mediators are seen as impartial persons so that the parties to disputes will be willing to use mediation to resolve those disputes. We do not believe that further regulation is needed, as the SEAs' interest in ensuring that mediators are seen as impartial should be sufficient to provide for mechanisms to resolve conflicts to the extent needed in that State.

Changes: None.

Comment: One commenter recommended that the regulations clarify that a mediator cannot be employed simultaneously as a hearing officer.

Discussion: Case-by-case determinations would need to be made as to whether there is a conflict of interest in the situation that the commenter describes. For example, we believe that a conflict would arise if a mediator was subsequently assigned as a hearing officer for the same matter. We believe that the requirements in Sec. 300.506(c)(1)(ii), applicable to mediators, and the corresponding requirements in Sec. 300.511(c)(1)(i)(B), applicable to hearing officers, which prohibit a mediator and a hearing officer from having a personal or professional interest that would conflict with the person's objectivity at the mediation or the hearing, are sufficient to ensure that mediators and hearing officers are fair and unbiased.

Changes: None.