Effective 28 Aug 2005

162.959. Mediation of dispute available, when — agreement to be in writing — attorney not permitted, when. — 1. As used in this section, "mediation" is the process by which a neutral mediator assists the parties in reaching a mutually acceptable voluntary and consensual agreement in the best interests of the child as to issues contained in the notice pursuant to section 162.945. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of common interest and finding points of agreement. An agreement reached by the parties shall be based on the decisions of the parties and not the decisions of the mediator. The agreement reached may resolve all or only some of the disputed issues.

2. Whenever a hearing has been requested pursuant to section 162.961, on any matter in dispute under section 162.961, and the dispute has not been finally resolved, the parties shall be offered an opportunity for mediation to resolve the dispute. Mediation shall also be made available to parties prior to the request for a hearing. Use of mediation shall be mutually agreed upon by both parties unless federal law provides to the contrary. The department of elementary and secondary education shall ensure that impartial mediation is provided at no cost to parents or guardians and the participating school district when requested pursuant to this section.

3. School districts may not use mediation to deny or delay the parents' right to a due-process hearing pursuant to section 162.961, or to deny the parents any other rights afforded pursuant to this chapter.

4. Mediation conducted pursuant to this section shall be scheduled within fifteen days of selecting a mediator at a time and place mutually acceptable to all parties engaged in mediation.

5. Mediation conducted pursuant to this section shall be completed within thirty days of agreement to mediate and may be terminated by either party at any time.

6. Any mediation agreement reached pursuant to this section shall be in writing, signed by the parties, and delivered to all parties engaged in the mediation. The responsible public agency or its designee shall sign the agreement. The designee identified by the responsible public agency shall have the authority to bind the agency. A local board of education, as a responsible public agency, may identify a designee with authority to bind the school district. The written agreement is a legally binding agreement that sets forth the resolution and must state that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The agreement is enforceable in any state court of competent jurisdiction or in a district court of the United States.

7. Mediators shall be selected by mutual agreement of the parents or guardians and the participating school district or responsible educational agency from a list maintained by the department of elementary and secondary education. Any mediator selected shall meet training, impartiality and assessment requirements pursuant to regulations promulgated by the department of elementary and secondary education.

8. No attorney shall attend or participate on behalf of any party at the mediation session although the parent or guardian may be accompanied by a lay advocate. Each party may be accompanied by no more than three persons, with additional participants allowed only by mutual agreement.

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(L. 1996 H.B. 1376 & 1501, A.L. 2005 H.B. 276)