Here, you will learn about the steps involved in mediation and due process. This report has been provided by special education attorney Grace Clark. Though the report is a general overview, it is specific to the Los Angeles Unified School District. 


First Steps

The first thing I recommend when starting to prepare for mediation and due process is to identify exactly what you’re looking for from the district in an ideal world, and what you would settle for, even if it’s not perfect. Thinking this through before you are in a negotiation or a hearing will help guide your decisions.


Resolution Session

After a parent files for due process, the district has fifteen days to arrange a resolution session. The resolution session is attended by the parents, a member of the IEP team, and a representative from the district who is authorized to make decisions on the district’s behalf. There is no judge at the resolution session; this is simply an opportunity for the parents and the district to come to an agreement. In my experience, LAUSD does not settle cases at the resolution session. Information exchanged at the resolution session is also not confidential.


Mediation

Mediation is an informal meeting between parents, a district representative, and a mediator. Either party can bring an attorney. At LAUSD, mediation usually takes place at the district office, but can also be held at a school within the district. Mediation is voluntary, and can be requested when you file the due process complaint. Unlike the resolution session, mediation is confidential. Nothing discussed in mediation can be used at the due process hearing, and the due process hearing judge will not know anything that was discussed at mediation.

Initially, the mediator will meet with both parties and explain the role of mediation. The Office of Administrative Hearings will also have forms for both parties to sign. Then, the parties go to separate rooms and the mediator moves back and forth between them. The mediator will ask questions about the case, and sometimes make suggestions about how to resolve the issues.

In my experience, in instances where we have reached settlements, mediation with LAUSD takes four to five hours. If the parties come to an agreement on some or all of the issues, they write it down in a settlement agreement. A settlement agreement specifies what each party will do. Once all the parties have signed the agreement, it is final, and the parties must do what they agreed to do.

I always request mediation. It requires much less time and preparation than putting on an entire evidentiary hearing at due process. More importantly, the vast majority of cases brought to LAUSD settle prior to the due process hearing. I have read that more than half of LAUSD cases settle at mediation, and another large portion settle after mediation but prior to the hearing. If the issues cannot be resolved at mediation, a due process hearing is still available, so there is nothing lost by trying for a resolution through mediation.

I have also found that LAUSD comes to mediation prepared to resolve the issues in the case. An attorney representing the district will have reviewed the case, and may see the situation differently from the administrators and teachers who attended the most recent IEP meeting. Also, the attorney is more familiar with what the law requires the district to provide to a student. There is nothing to lose by attending mediation, and it is often the most effective way to settle a case.


Prehearing Conference

If the case does not settle after mediation, the Office of Administrative Hearings will conduct a prehearing conference about a week or two before the due process hearing. At LAUSD, prehearing conferences are held on Mondays or Fridays, and are conducted by conference call. The administrative hearing judge will moderate the discussion, which will cover the date, time, and location for the hearing; the anticipated length of the hearing; the issues that will be presented; witnesses; and any special accommodations needed. You can make a “prehearing conference statement” that will explain the length of time you expect the hearing to take, the witnesses you intend to call, the issues you will bring up, and any evidence or documents you want to include.


Due Process Hearing

The due process hearing is similar to a trial. Both sides will have an opportunity to present witnesses, present documentary evidence, and make arguments. The hearing usually takes place at the district office. If the parents filed for due process, they will have the “burden of proof,” meaning they have to convince the judge that they have presented enough evidence to prove their case. The standard of proof for a due process hearing is “preponderance of the evidence,” which means more than half, or slightly more likely than not. If the party with the burden of proof does not present enough evidence to prove their case, they will lose.1

The administrative hearing judge makes the final determination. You must give notice to the district of the witnesses you intend to call at the hearing at least five business days prior to the hearing. You will also need to make exhibit binders, which are three-ring binders that contain all the documents—such as IEPs, school records, or evaluations—that you will reference during the hearing. Each document will be referred to as a separate exhibit. Separating the documents with divider tabs will help you find the exhibit you need quickly. You must provide an exhibit binder to the district at least five days prior to the hearing as well. LAUSD will also expect you to bring a copy of the exhibit binder for the judge, and one for the witnesses to use while testifying.

At the hearing, you are permitted to make an opening statement. What you say during the opening statement is not actual evidence—it is merely what you expect the evidence will show. The party with the burden of proof will present their case first. That party can call witnesses and ask them questions. They can also ask witnesses about exhibits. When they are finished questioning each witness, the other side will get a turn to do the same. Only evidence that is “relevant” to the issue, as determined by the judge, will be allowed as testimony. Witnesses must wait outside the room until it is their turn to testify, unless the witness is one of the parties.

At the end of testimony, both parties can make a closing argument, which should discuss the law that applies, and all the evidence that supports the law. Generally, a written decision from the judge must be sent out to both parties within forty-five days of the date the complaint was filed. If the judge decides that either party is entitled to a remedy, the decision will state what is appropriate. This may be what one of the parties asked for, or something else entirely. Attorney fees can be part of the award. If you hired an attorney to represent you at a due process hearing, you may be able to recover some or all of the fees you paid to your attorney if you were the prevailing party at the hearing.


Conclusion

In my experience with LAUSD, it has been impossible to obtain private placement for a student without filing for due process. There has never been a district representative in any of my IEP meetings who had the authority to authorize a private placement at the district’s expense. This has even been true for one of my clients who was already previously placed by LAUSD: each year, we must file for due process and go to mediation before being able to negotiate with a district representative who has the authority to agree to private placement at the district’s expense. That being said, once at mediation, I have felt that LAUSD has considered my client’s case fairly on its merits.

 

1 In 2017 in California, the student prevailed in 18% of due process hearings, 37% of the decisions were split between the parties, and the school district prevailed 45% of the time. More interestingly, a 2013 article published in the Journal of Law and Education found that school districts prevailed nationally in 98% of due process hearings when the family represented themselves, and only 64% when the family had an attorney.

Other news