Section 511IAC7-45-2. Mediation

   (a) A request for mediation may be initiated by either the parent or the public agency, but the mediation process cannot begin unless both parties agree to participate. Mediation may be requested to resolve disputes regarding any of the following:

(1) A student's identification and eligibility for services under this article.

(2) The appropriateness of the:

(A) educational evaluation; or

(B) student's proposed or current special education services or placement.

(3) Any other dispute involving the provision of a free appropriate public education to the student.

(4) Reimbursement for services obtained by the parent.

  (b) Mediation may occur prior to or concurrent with a request for a due process hearing. A request for mediation shall not:

(1) preclude or delay a due process hearing; or

(2) deny any other rights afforded in this article.

  (c) The division of special education shall bear the cost of the mediation process.

  (d) Persons who serve as mediators shall:

(1) be trained in effective mediation techniques;

(2) have no personal or professional conflict of interest regarding the parties involved in the process;

(3) be impartial;

(4) have knowledge of laws and regulations relating to the provision of special education and related services;

(5) be qualified as determined by the division of special education; and

(6) not be an employee of the department of education or the public agency that is involved in the education or care of the student.

  (e) The division of special education shall do the following:

(1) Maintain a current list of the persons who serve as mediators, including information on the qualifications of those persons.

(2) On a general rotation basis, select a mediator from the list for each mediation requested.

A person who otherwise qualifies as a mediator is not considered an employee of the department of education solely because he or she is paid by the department of education to serve as a mediator.

  (f) Each session in the mediation process shall be:

(1) scheduled in a timely manner; and

(2) held in a location that is convenient to the parties to the dispute.

  (g) If the parties resolve a dispute through the mediation process, the parties must execute a legally binding written mediation agreement that sets forth the parties' resolution. The written mediation agreement must:

(1) be signed by the parent and a representative of the public agency who has the authority to bind the agency; and

(2) state that all discussions that occurred during the mediation process will:

(A) remain confidential; and

(B) not be used as evidence in any subsequent due process hearing or civil proceeding.

  (h) A written, signed mediation agreement under this section is enforceable in any state court of competent jurisdiction or in a district court of the United States. Discussions that occur during the mediation process:

(1) must be confidential; and

(2) may not be used as evidence in any subsequent due process hearings or civil proceedings of any federal or state court.

  (i) In addition to the enforcement mechanisms is subsection (h), a written, signed mediation agreement under this section is enforceable through the complaint process in section 1 of this rule. However, use of the complaint process:

(1) is not mandatory; and

(2) does not delay or deny a party the right to seek enforcement of the written agreement in a:

(A) state court of competent jurisdiction; or

(B) district court of the United States.

  (j) A public agency may establish procedures to offer 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 who:

(1) is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center established under Sections 1471 or 1472 of the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.; and

(2) would:

(A) explain the benefits of the mediation process; and

(B) encourage the parents to use the process.

The procedures must be approved by the division of special education prior to implementation by the public agency, and the public agency may not use these procedures to deny or delay a parent's right to a due process hearing if the parent fails to participate in the meeting. The division of special education shall bear the cost of the meetings in accordance with the written procedures. (Indiana State Board of Education; 511 IAC 7-45-2; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; readopted filed Nov 6, 2014, 3:23 p.m.: 20141203-IR-511140382RFA)