The Mediation Process Including Virtual Mediation

A trained mediator from OAH is always present at the mediation to help the parties solve the issues.  The mediators are judges.  However, the judge who is the mediator in a case will not be the judge at the hearing if the case does not settle.

The mediator is a neutral participant at the mediation.  That means that the mediator does not take sides.  The mediator is not there to tell the parties what to do.  Rather, the mediator is like a guide.  The mediator tries to help the parties come to an agreement by asking questions about the case. The mediator may also suggest possible ways to solve the problems in the due process complaint.  Neither side has to follow those suggestions.  Only the parties decide if they want to agree to settle the case.

The OAH Special Education Division conducts mediations by videoconference and telephone. The information in this section provides resources enabling parties to  fully participate in this new process. As of July 5, 2022, OAH uses Zoom to conduct its mediations. If you are unfamiliar with Zoom you may find the following helpful:

• Order Setting Videoconference Mediation Procedures 

• Joining a Zoom Meeting: 
  https://support.zoom.us/hc/en-us/articles/201362193-Joining-a-Zoom-meeting#:~:text=Go%20to%20join.zoom.us,client%20to%20join%20the%20meeting 

• Zoom's "Getting Started Guide for New Users."   To open a Zoom account, please visit "Getting started guide for new users."  Either click on the prior link or copy and paste the following URL into your browser: https://support.zoom.com/hc/en/article?id=KB0061316

 *Check Your Zoom Version to Ensure it is Updated Before Joining:

Participants may have trouble joining the Prehearing Conference or Hearing if they do not have the most updated version of the Zoom application or their web browser is not up to date.  For instructions on identifying your version of the Zoom application, and to update to the most current version of the Zoom application, please visit New! Get Automatic Updates in the Zoom Client | Zoom.  You may also access "New! Get Automatic Updates in the Zoom Client" by copying and pasting the following URL into your browser: https://zoom.com/en/blog/get-automatic-updates-in-th-zoom- client/

Participants may have trouble joining if their browser is not compatible with Zoom and updated. For instructions on identifying your browser version please visit Zoom system requirements: Windows, macOS, Linux - Zoom Support. You may also access Zoom Support regarding supported browsers by copying and pasting into your browser the following URL:  https://support.zoom.com/hc/en/article?id=zm_kb&sysparm_article=KB0060748#h_92957a85-2506-43a2-bd4a-5bb274778518.  If you are unsure as to which browser you use when accessing the internet, type "how do I find out what browser I am using" into the search bar after opening your internet and find the response that best fits your system. An example of browsers includes Chrome, Safari, Firefox, and Edge.

1. Filing Party to Provide the Mediator at the Mediation a Detailed, Opening Settlement Proposal

At the time of the mediation, the filing party shall provide the mediator with a detailed, opening settlement proposal. The proposal should contain each element of the filing party's proposed settlement, including the cost, proposed vendors or placement locations, if possible, and any other details necessary to start a meaningful settlement discussion. The filing party may include questions, if the answers are needed before a proposal can be made. The mediator will not share the settlement proposal with the other side(s) until discussing it with the filing party first.

• Please do NOT send this settlement proposal to OAH.
• The opening settlement proposal, and the questions, may be made to the mediator orally.

2. The Mediation will Start with a Pre-Session

The mediation starts with a pre-session where technology is tested to make sure it is working properly. During this pre-session confidentiality agreements about settlement offers and counter offers will be discussed and agreements reached before the mediation starts. All parties must be present for those discussions to proceed.

3. Please Provide OAH Staff with any Updated or Changed Email Addresses and Direct Telephone Numbers for the Attorney and all Clients Participating in the Mediation, No Later than 24 Hours Prior to the Scheduled Mediation

You may do so by calling OAH at 916-263-0880 or by sending something in writing using the Secure e-File Transfer (SFT) system. You may not submit this information through email.

Will the other participants be able to see my email address?

In some cases, the other participants may be able to see the email addresses of other participants.

4. The Office of Administrative Hearings is Using the Zoom Software to Host Mediations. Zoom Can be Used for Both Video and Telephonic Conferencing. You will NOT have to Purchase or Download any Software to Participate.

If you have not previously used the Zoom platform and you wish to familiarize yourself with the technology, there are informative videos available like the following:

• Joining a Zoom Meeting:
  https://support.zoom.us/hc/en-us/articles/201362193-Joining-a-Zoom-meeting#:~:text=Go%20to%20join.zoom.us,client%20to%20join%20the%20meeting

• Zoom's "Getting Started Guide for New Users:" 
  
  

Check Your Zoom Version to Ensure it is Updated Before Joining:

Participants may have trouble joining the Prehearing Conference or Hearing if they do not have the most updated version of the Zoom application or their web browser is not up to date.  For instructions on identifying your version of the Zoom application, and to update to the most current version of the Zoom application, please visit New! Get Automatic Updates in the Zoom Client | Zoom.  You may also access "New! Get Automatic Updates in the Zoom Client" by copying and pasting the following URL into your browser: https://zoom.com/en/blog/get-automatic-updates-in-th-zoom- client/

Participants may have trouble joining if their browser is not compatible with Zoom and updated. For instructions on identifying your browser version please visit Zoom system requirements: Windows, macOS, Linux - Zoom Support. You may also access Zoom Support regarding supported browsers by copying and pasting into your browser the following URL:  https://support.zoom.com/hc/en/article?id=zm_kb&sysparm_article=KB0060748#h_92957a85-2506-43a2-bd4a-5bb274778518.  If you are unsure as to which browser you use when accessing the internet, type "how do I find out what browser I am using" into the search bar after opening your internet and find the response that best fits your system. An example of browsers includes Chrome, Safari, Firefox, and Edge.

 5. If Joining by Computer:

If joining the meeting by computer, the mediator will schedule a meeting, and the participants will receive one invitation via email.

At the scheduled time for the mediation, click on  blue "Join" button in the Zoom invitation.  Once you join the meeting you will need to wait for the mediator to admit you into the mediation.

6. Separate Meetings, or "Caucus," for Each Side will be Available through Breakout Rooms.

Once the participants have joined the mediation videoconference, the mediator may, if appropriate, create breakout rooms so that each party may have an opportunity to meet privately with their attorneys or other support persons, or even with the mediator, if needed.

7. Join the Meeting by Telephone Only.

If joining the meeting by telephone only, your case manager will be contacting you to provide the call-in numbers and the Conference ID numbers you will need for your mediation. You will receive information for the Mediation Meeting.

At the scheduled time for the mediation, you will call in to the Mediation Meeting first. Upon calling the number, you will hear a welcome message and be instructed to enter the Conference ID number, followed by the pound (#) sign. You will then be prompted to record your name, then press pound (#) again. Your recorded name will be played when you join the meeting to alert others that you have joined.

8. The Same Confidentiality Rules Apply to Telephonic or Video Conference Mediations that Apply to In-Person Mediations.

The same confidentiality rules will apply to telephonic or video conference mediations that apply to in-person mediations. There will be no video or audio recording of any mediation processes under any circumstances. The parties may not copy documents by any means, including by cell phone photograph, without the express permission of all parties to the mediation. The mediator will go over the rules of confidentiality prior to the beginning of the mediated discussions.

9. OAH Will Continue to Provide Interpreters if Requested by the Parties.

10. Meeting Invitations are Only to be Used to Connect Parties to the Mediation at the Scheduled Time.

The meeting invitation is intended for the sole purpose of connecting parties to the mediation at the scheduled time. Do not reply to any invitation emails, simply use the link to join the meeting. If you need to communicate any information regarding your case, please contact your case manager, including if you cannot participate in the mediation.

11. Additional Parties:

If you feel that additional parties or persons should be involved in the mediation, please contact your case manager with that information so that it may be provided to the Mediator when setting up the mediation. The meeting invitations should NOT be forwarded to other parties unless instructed to do so.

12. Please do NOT call OAH before Your Scheduled Mediation Time with Questions.

 

 

If the mediation is part of a mediation only case, an attorney or independent contractor used to provide legal advocacy services may not accompany a parent or district in a mediation only based on California Education Code Section 56500.3(a).  However, California Education Code Section 56500.3(b) does not preclude the parent or public agency from being accompanied or advised by non-attorney representatives in mediation and parties may consult with an attorney before or after the mediation.  If the mediation is part of a hearing and mediation case, the parties choose if they want to have an attorney represent them or be accompanied and advised by someone with special knowledge or training about the problems of children with disabilities.

The parties meet at the mediation location, which is usually the school district office or at a school in the district.  If parents are not comfortable having the mediation held at a school district, they may send a request in writing to OAH for the mediation be held at a different location.  OAH will decide if a different location is needed and, if it is needed, then OAH will identify the new location.

Sometimes before the mediation, the mediator will talk separately to parents and separately district representatives before all parties meet together.  The mediator may want to discuss what happens at the mediation if parents have never attended mediation before.  Or, the mediator may want to discuss some of the issues in the case.  Sometimes, one of the parties wants to discuss the issues with the mediator alone as well.

Generally, everyone first will meet together in an office or conference room.  The mediator will introduce him or herself and explain their role in mediation.  The mediator will explain what mediation is and that the meeting is confidential.  Generally, the mediator will ask everyone to follow some simple rules, such as not talking when someone else is talking, turning off cell phones, and being polite to each other.  The mediator will also explain that during the mediation the parties will often separate to discuss the issues alone or just with the mediator without the other party there.

OAH has a sign-in sheet for all parties and their representatives to fill out.  The sign-in sheet asks for each person’s name, address, and email address.  OAH uses this information to send out survey forms after the mediation.  The survey form asks the parties to let OAH know what went well at the mediation or if something could be done better to help the mediation process be successful.  There is another form used to inform OAH whether the case settled during the mediation.  The mediator checks a box which states the result of the mediation.  All parties sign this form.  There is no information about what was said at the mediation on any form.  The parties may have a copy of all forms at the end of the mediation if they wish.

The mediator will ask the party who filed the case to talk about the issues that still need to be settled.  Sometimes, not all the issues written in the complaint are still in disagreement.  The mediator will also ask the party who filed the case what they want the other side to do in order to settle the case.  The mediator will ask the other party to also say what their concerns are.  It is important to determine exactly what the disagreements are so that all parties can find ways to resolve them.

Once the issues have been discussed, the mediator will often start meeting separately with each party.  There will be separate offices or rooms for the parties to meet alone with the mediator.  The mediator will often go between the two rooms to discuss issues with each party.  Often, the mediator will go back and forth between the parties to discuss offers of settlement made by one party to the other one.  During these meetings, the mediator will ask questions about the case.  The mediator will sometimes make suggestions about ways to resolve the issues.

Sometimes, a party may want to meet alone with their attorney or other representative without the mediator being there.  They may ask the mediator to let them speak alone for a few moments.  The mediator will go outside or to another office until requested to return.

Whatever the parties say when they meet alone with the mediator is confidential unless the party tells the mediator that it can be discussed with the other party.

Usually, mediators do not take a lunch break and ask people to run out and bring back sandwiches, or something similar, to maximize the use of the time allowed for the mediation.  Feel free to bring food along to eat.  There can be long stretches of down-time in mediation while the mediator talks to the other side. However long mediation takes, it is generally a faster process than holding a hearing which usually takes most of a week and sometimes considerably longer.

If the parties agree on some or all of the issues, they must put the agreement in writing.  Often, the district’s attorney or the district representative will type a proposed agreement, sometimes using a form that they have for this purpose.  If no one is able to type the agreement, it can be done in handwriting.  The OAH mediator may have a form for the mediation agreement that can be filled out, as well.  The agreement will include the name of the student and the district as well as the OAH case number.  The agreement will include the issues that the parties have agreed on.  It will then state what the parties have agreed to do in order to settle the case.  Finally, the agreement will say when the parties will do all the things they have agreed to do.

The parties making the agreement must sign the agreement.  If they have an attorney, the attorney often will sign showing that the attorney approves the form of the agreement.  Each party will get a copy of the agreement.

Once all the parties have signed the agreement, it is final.  All the parties must do what they agreed to do in the agreement.  OAH does not have the power to force the parties to follow the settlement agreement.  If one of the parties fails to do something that they are supposed to do by the terms of the agreement, the other side can go to court.  They can ask the court to order the party to follow the settlement agreement.

           When Approval by the School Board is Necessary

Sometimes, a settlement agreement is only final after approval by a school board.  The mediator will find that out early in the process.  If board approval is necessary, it may delay the final approval of the settlement by a few weeks as school board meetings are planned in advance.  Settlement approvals are handled by school boards confidentially, meaning that the agreement and any facts pertaining to the student will not be public.

If school board approval is needed, OAH will set a date for dismissing the case - meaning that OAH will close the case.  The date chosen for dismissing the case will be 30 days after the date the school board was supposed to meet to vote on the settlement agreement.  If the school board does not meet, does not vote on the settlement agreement, or does not approve the settlement agreement, the parties must notify OAH that the case has not been settled to prevent the case from being dismissed.  If a dismissal is filed, the case is closed. 

Mediators are trained to help the parties talk to each other and try to reach an agreement, even if the parties are not getting along.  However, sometimes the parties cannot come to an agreement at the mediation.  If that happens, the parties may still continue talking to each other about the issues and possible ways to solve their differences.  They will have time before the due process hearing to do this.  If they still are not able to come to an agreement, the due process hearing will go forward, unless the party who filed the case decides to withdraw it.

At the conclusion of the mediation, the mediator will ask the parties to sign a document stating that the case has settled.  If the settlement is final that day, the form will state that the case will be dismissed.  If the settlement must be approved by a school board, the case will be scheduled for dismissal 30 days after the date the school board is supposed to meet to vote on the settlement agreement.  If the school board does not approve the settlement agreement or does not vote on the scheduled date, the parties will need to let OAH know before the 30-day due date.  If they do not let OAH know, then the case will be closed.

When all parties sign the settlement agreement it becomes a binding contract.  OAH does not enforce settlement agreements.  Parents can seek assistance from the California Department of Education to help them enforce an agreement if it is not honored.  Parents can also choose to go to state or federal court to ask a judge to enforce the agreement.  Occasionally, a failure to do what was agreed is a denial of FAPE for a student and can form the basis of a new complaint at OAH.