1. (a) General. The state education agency has established and implements the following procedures to allow parties to disputes involving any matter under this part to resolve the disputes through a mediation process, including matters arising prior to the filing of a due process complaint (hereafter referred to as the “prehearing mediation conference”).

2. (b)

   1. (1) When a hearing request is initiated pursuant to these procedures, the public agency must inform the parent of the availability of mediation described in 34 C.F.R. § 300.506 and this part.

   2. (2) The purposes of the prehearing mediation conference are to:

      1. (A) Resolve, if possible, all disagreement, thus eliminating the need for a due process hearing;
      2. (B) Narrow the range of disagreement to a specific issue or issues in the event that total resolution of the disagreement is not accomplished;
      3. (C) Provide an atmosphere, through the introduction of a mediator, that is conducive to relevant discussions and mutual agreement; and
      4. (D) To acquaint the parties to the dispute with the due process hearing procedures.

3. (c) Requirements. The procedures for a prehearing mediation conference shall meet the following requirements:

   1. (1) The procedures ensure that the mediation process is:

      1. (A) Voluntary on the part of the parties;
      2. (B) Not used to deny or delay a parent’s right to a due process hearing or to deny any other rights afforded under Part B of the Individuals with Disabilities Education Act; and
      3. (C) Conducted by a qualified and impartial mediator who is trained in effective mediation techniques;

   2. (2)

      1. (A) The state must maintain a list of individuals who are qualified mediators and knowledgeable in laws and rules relating to the provision of special education and related services.
      2. (B) The SEA must select mediators on a random, rotational, or other impartial basis;

   3. (3) Each session in the mediation process is:

      1. (A) Scheduled in a timely manner; and
      2. (B) Held in a location that is convenient to the parties to the dispute;
   4. (4) The state must bear the cost of the mediation process;
   5. (5) If parties to a dispute elect to participate in a prehearing mediation conference, whenever possible the conference will be scheduled within seven (7) calendar days after the written request for a due process hearing has been received by the Special Education Unit;

   6. (6)

      1. (A) Attorneys for parties to the dispute are not permitted to attend the prehearing mediation session or sessions, as the presence of attorneys at the prehearing mediation session would have the potential for creating an adversarial atmosphere not conducive to mediation of the dispute.
      2. (B) This does not, however, preclude either party from communicating with its attorney to seek advice regarding the terms of a settlement proposal;

   7. (7) An agreement reached by the parties to the dispute participating in the mediation process must be set forth in a written mediation agreement that:

      1. (A) Is legally binding;
      2. (B) Sets forth that resolution;
      3. (C) States that all discussions that occur during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and
      4. (D) Is signed by both the parent and a representative of the agency who has the authority to bind such agency; and

   8. (8)

      1. (A) A written, signed mediation agreement under this part is enforceable in any state court of competent jurisdiction or in a district court of the United States.
      2. (B) 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 of a state receiving assistance under this part.

4. (d) Impartiality of mediator.

   1. (1) An individual who serves as a mediator under this part:

      1. (A) May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and
      2. (B) Must not have a personal or professional interest that conflicts with the person’s objectivity.
   2. (2) A person who otherwise qualifies as a mediator is not an employee of an LEA or state agency described in 34 C.F.R. § 300.228 solely because he or she is paid by the agency to serve as a mediator.

Codification Notes: The Individuals with Disabilities Education Act is codified at 20 U.S.C. § 1400 et seq.