A special education Due Process case begins when I file a due process complaint with the Office of Administrative Hearings (OAH). There are a few different types of complaints, but I will Request for Mediation and Due Process Hearing. That means that there will be a mediation and a hearing, if necessary. Note, almost all (like 97%) cases settle at mediation or shortly thereafter.
Below is excerpts from the Special Education Handbook from OAH.
1. Resolution Session
A resolution session is generally a meeting between a student’s parents and representatives of the district who include someone from the IEP team who has specific knowledge of the facts involved in the dispute and someone who has the authority to make a decision on behalf of the district. A resolution session is required if a student’s parents file for a due process hearing. It is not required if the district files for due process. The district must arrange for a resolution session within 15 days after it receives a student’s complaint.
The idea of the resolution session gives parents time to try to come to an agreement with the district. There is no judge at the meeting and neither party is allowed to have an attorney present unless the parents choose to have an attorney at the meeting.
I generally like to attend the resolution sessions with or without parents because it is an opportunity to settle the case. However, it is very rare for the case to actual be settled at the resolution. Additionally, especially in LAUSD the district is not prepared to settle the case at the resolution session. Therefore, since it is not worth my or your time to attend the resolution sessions in person. I often attend the resolution sessions over the phone with or without parent also on the phone. For LAUSD cases, there is really no reason for parent to be on the line. The cases never settle at the resolution session.
Prior to the resolution session, I like to have a phone conversation with you to discuss exactly what we want to request from the district. I like to discuss two list. One, what we want to first ask for and second, what we will settle for. For example, our opening offer of compensation education (“comp. ed.”) might be 50 hours, but we know we will settle it for 15 hours.
2. Mediation
Mediation is a private, informal meeting that takes place between a parent(s) and representatives from the district. The purpose of the meeting is to try to solve the issues in a due process complaint without a hearing. All mediations are voluntary. That means that the mediation will only take place if both sides want to attend. No one can force parents or the district to attend the mediation. However, it is very useful to go to the mediation. About 70 percent of all cases reach an agreement at the mediation. About another 25 percent of the cases come to an agreement after a mediation takes place but before the hearing starts.
The entire mediation process is confidential. No one is supposed to talk about what is said or agreed to during the mediation. Nothing anyone says or agrees to can be brought up at a hearing if the case does not settle. Because mediation is confidential, the mediator does not talk about what happened at the mediation after the mediation is over. If the parties do not settle the case at the mediation, a different judge will handle the hearing. The mediator does not talk about it with hearing judge. The judge at the hearing will know only that mediation took place and that the parties did not come to an agreement.
The parties meet at the mediation location, which is usually the school district office or at a school in the district. Sometimes, the mediator will talk separately to parents and separately to the district representatives before all parties meet together. 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 explains what mediation is. The mediator will explain that the meeting is confidential. OAH has a sign-in sheet for all parties and their representatives to fill out. There is another form used to inform OAH whether the case settled during the mediation. All parties sign this form. 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. During these meetings, the mediator will ask questions about the case. The mediator will sometimes make suggestions about ways to resolve the issues.
The mediation can take a long time to finish the settlement agreement. You should plan on attending for at least 3 to 4 hours, and longer if the case is more complicated.
I like to schedule a short call with you prior to the mediation. We will discuss how the settlement discussions are going and what we want to request at the district.
3. Settlement agreement
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. 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.
Generally, a settlement agreement includes a provision for payment of attorney’s fees. The district will pay for the student’s attorney’s fees. This is generally how I get paid.
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.
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 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 Board approval is needed, OAH will schedule a “Status Conference.” This is a telephone conference where OAH will contact the parties to ask if the Board has approved the settlement agreement. If the board approves the settlement agreement, the person who filed the complaint must file a dismissal of the case. If a dismissal is filed, the case is closed and the Status Conference will be cancelled. If a dismissal is not filed, the Division Presiding Judge of OAH will convene call the parties for the status conference to ask whether the settlement was approved.
4. Due process hearings
Most parties reach an agreement before the due process hearing. A majority of cases settle with the help of a mediator. Even if the parties have cancelled mediation or want a second mediation, they may agree to a date for it and send a written request to OAH. OAH will generally schedule the mediation on the date selected by the parties.
A due process hearing is the next step if the case is not settled. The hearing is a trial-like proceeding. All parties have the opportunity to present their evidence and arguments. All witnesses are placed under oath. Each party may testify, ask witnesses questions, and present their evidence. Usually, the party that filed the complaint goes first.
The hearing will focus on the issues in the due process request. The evidence offered by each party must be relevant to those issues. “Relevant evidence” means evidence that has a tendency to prove or disprove a fact that is in dispute in the case. The judge will allow only relevant evidence during the hearing.
The party that filed the request has the “burden of proof.” The “burden of proof” refers to which party must produce enough evidence to prove their case. For example, if parents have filed the due process request, then parents have the burden of proof. If the district filed the due process request, then the district has the burden of proof. The standard of proof is a “preponderance of the evidence.” A “preponderance of the evidence” is a measurement that compares the evidence from both sides to see which side is stronger. Some people describe a “preponderance of the evidence” as “the 51 percent Rule”, or, as if a scale tips slightly in one direction. If the party with the burden of proof does not meet their burden, they do not win the case. The judge decides if the burden has been met.
It should be discussed prior to filing the due process complaint if your case is one that should go to hearing. If so, careful preparations for time and money need to be taken at that time. As discussed above, most cases settle at mediation or shortly thereafter.
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