Setting a Mediation and Requesting a Continuance of Prehearing Conference and Due Process Hearing Dates
Topics Related to Setting a Mediation and Requesting a Continuance of Prehearing Conference and Due Process hearing
A mediation date is not automatically scheduled when a party files a Request for Due Process Hearing and Mediation. OAH will schedule the prehearing conference and the hearing dates and will advise the parties of these dates when OAH sends the parties a document called “Scheduling Order Setting Telephonic Prehearing Conference and Due Process Hearing" (Scheduling Order).
The Scheduling Order does not set a date for mediation but does set a deadline for requesting mediation. Read the Scheduling Order carefully. It contains important information. Because mediation is voluntary, the parties must agree to a mediation date and submit the request for mediation. It is a good idea for the parties to include a second date for the mediation as their second choice. OAH provides a form for requesting a mediation date that is called the Request to Set Mediation and Continue Due Process Hearing. This form is optional and may be used even if the parties only wish to schedule a mediation without continuing the hearing. Both parties must sign the request.
Requesting a mediation date is a motion and must follow the normal rules for filing motions. For example, the joint motion “Request to Set Mediation and Continue Due Process Hearing” must be filed no later than three business days before the prehearing conference. For other motion rules go to the Motions section of this website.
When parties ask for a mediation date, the mediation date will not be set any earlier than 35 days from the date student or parents filed a request for due process hearing. This allows time for the parties to hold a resolution session, or decide to waive the resolution session. For more information on what the resolution session is, visit the Procedural Safeguards portion of our site.
Mediations may be requested for any day of the week, Monday through Friday, and will be set if OAH’s calendar has the date available. Requests may be made up to the day before the requested date but the date will only be approved if OAH’s calendar has the date available. Parties are encouraged to submit a request for mediation date at least 10 business days before the mediation to ensure approval for the date the parties have selected. OAH will let the parties know if the date they requested has been approved. OAH will do this within two business days after the parties submit their request. Once the mediation date has been set, parties are expected to go to this mediation.
If parents or students are not represented by an attorney, OAH staff will contact them within seven days after the Scheduling Order has been sent to offer assistance in calendaring a mediation date. A mediation date may also be set during the prehearing conference if no mediation date has been previously set but the judge may require the parties to provide a good reason for the delay in requesting a mediation date.
It is a good idea to schedule a mediation date before the prehearing conference because getting ready for the prehearing conference and hearing takes a lot of time and work. If the parties settle at mediation the parties will avoid all the time and work getting ready for the prehearing conference and hearing. Visit the following link for more information on prehearing conferences or you can enter the following URL into your browser https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Prehearing-Conferences.
OAH will send out a written order saying whether or not it has agreed to assign the mediation date.
Once a mediation date is set, the parties are expected to attend the mediation. OAH will not call the parties to ask if the parties will be going to the mediation. Once mediation is scheduled all parties are responsible for letting OAH know as soon as possible if the mediation needs to be cancelled. Parties may let OAH know of a cancelled mediation either by calling the After Hours Line at (916) 274-6035 if after normal business hours, or by calling (916) 263-0880 during business hours and speaking directly with the case manager. Parties may also send by Secure e-File Transfer (SFT) system a written statement that the mediation will be cancelled to:
If sent by SFT please be sure to select the document type of “Continuance Request” when uploading the document. OAH will then notify the parties via telephone that the mediation has been cancelled.
If the parties cancel a mediation date and want to request another mediation date, they must have a good reason, such as illness or another unforeseen, unavoidable reason, or “good cause” for cancelling the first mediation. If the parties believe they do have a good reason, and want to change the date for a mediation that has already been scheduled, the parties should follow the same procedure as for requesting the first mediation date, but make sure to include the reason they cancelled the first mediation. The parties will need to reach an agreement on a date, and an alternate date, for mediation and submit a request for mediation for those dates to OAH.
Requesting a mediation date may result in the need to change the date assigned for hearing. This is called “requesting a continuance” of the hearing. Both the prehearing conference (PHC) and the hearing dates originally scheduled by OAH may need to be changed due to the scheduling of a mediation date. OAH’s form “Request to Set Mediation and Continue Due Process Hearing” which may be used for requesting mediation, anticipates this and asks the parties to agree on a date for hearing that falls within 60 days of the date of their preferred mediation date. The prehearing conference (PHC) should be scheduled at six to eight days prior to the first day of hearing and the parties should choose one of the PHC time slots available: 10:00 a.m., 1:00 p.m. or 3:00 p.m. on a Monday or Friday. Prehearing conferences may not be scheduled in the morning on the first Monday of the month.
The “motion” or request for mediation and continuance of the prehearing conference and hearing dates must be submitted no later than the date the prehearing conference statements are due. The date the prehearing conference statements are due is shown on the Scheduling Order. However, all requests for mediation should be submitted as early in the process as possible for maximum benefit to the parties. All continuance requests must be submitted in writing and are called “motions”.
OAH will send out a written order saying whether or not it has agreed to assign the new mediation date. If new dates are granted for the prehearing conference and hearing, the order will include the new dates, as well as the new mediation date.
There are detailed instructions on the form Request to Set Mediation and Continue Due Process Hearing. Even if you choose not to use this form it is advisable to read these instructions first.
Any party may make a motion to change a mediation, prehearing conference or hearing date. Asking OAH to postpone dates is called a "request for continuance."
If all parties in a case want to postpone dates, the request is called a “Joint Request for a Continuance.” All parties must agree on the dates in a joint request. The parties must provide a good reason for requesting a continuance, which is called “good cause”. An example of “good cause” might be illness, or that that an essential witness is not available or is out of the country until a certain date. It does not include failing to prepare for the hearing. A joint request for a continuance must be signed by all parties.
OAH has only one form to file a joint request for a continuance of the hearing and prehearing conference on the website. It is called, “Request to Set Mediation and (Continuance of Initial Due Process Hearing, if Required).” This form must be signed by all the parties to the case. Parties are not required to use this form to submit a joint request – parties may submit a letter, instead, as long as all of the information is included.
If the parties do not agree, then the requesting party may use the form “Request for Continuance of Due Process Hearing Dates.”Parties are not required to use this form – a party may submit a letter, instead, as long as all of the information is included.
Hearings are only continued on a showing of good cause (i.e. the reason or reasons you are asking for a continuance.) The reason or reasons for the request for the continuance must be stated, and a signature is required under penalty of perjury.
Before filing a motion asking for a continuance of any dates, a party should first ask the other parties to agree to postpone the dates and to try to agree upon new dates. If any of the other parties do not agree, the party may file their own motion for continuance.
A motion for continuance should include:
- A statement that the parents have tried to contact the all of the other parties and that the other parties do not agree to a continuance, or that the parties cannot agree on dates;
- The reason for the request; and
- The new date or dates the parents would like.