Section 281.41.506. Mediation.

       41.506(1) General. Each public agency must ensure that procedures are established and implemented to allow parties involved in disputes relating to any matter under this chapter, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

       41.506(2) Requirements. The procedures must meet the following requirements:

        a.           The procedures must ensure that the mediation process:

       (1)             Is voluntary on the part of the parties;

       (2)             Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of the Act; and

       (3)             Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

        b.           A public agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party:

       (1)             Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the state established under Section 671 or 672 of the Act; and

       (2)             Who would explain the benefits of, and encourage the use of, the mediation process to the parents.

        c.           State responsibility for mediation.

       (1)             The state must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

       (2)             The SEA must select mediators on a random, rotational, or other impartial basis.

        d.           The state must bear the cost of the mediation process, including the costs of meetings described in 41.506(2)“b.”

        e.           Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute.

        f.            If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that:

       (1)             States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

       (2)             Is signed by both the parent and a representative of the agency who has the authority to bind the agency.

        g.           A written, signed mediation agreement is enforceable in any state court of competent jurisdiction or in a district court of the United States.

        h.           Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any federal court or state court.

       41.506(3) Impartiality of mediator.

        a.           An individual who serves as a mediator under this chapter:

       (1)             May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and

       (2)             Must not have a personal or professional interest that conflicts with the person’s objectivity.

        b.           A person who otherwise qualifies as a mediator is not an employee of an LEA or state agency described under rule 281—41.228(256B,34CFR300) solely because the person is paid by the agency to serve as a mediator.

       41.506(4) Mediation procedures. A request for mediation filed before the filing of a due process complaint shall be conducted according to the procedures described in rule 281—41.1002(256B,34CFR300).

       41.506(5) Rule of construction. The department shall accept documents captioned as requests for a “preappeal conference” as requests for mediation prior to the filing of a due process complaint.

[ARC 8387B, IAB 12/16/09, effective 1/20/10; ARC 9376B, IAB 2/23/11, effective 3/30/11]