GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 1098

Short Title:  Special Education Mediation.	(Public)

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Sponsors: Representatives Preston; Arnold, Grady, Russell, Sherrill, Shubert, Morris, and Smith.

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Referred to:  Education.

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April 21, 1997

A BILL TO BE ENTITLED
AN ACT TO AMEND THE PROCEDURE FOR MEDIATION OF SPECIAL EDUCATION DISPUTES BETWEEN LOCAL EDUCATION AGENCIES AND PARENTS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 115C-116(b) reads as rewritten:
"(b)	Mediation. – 
It is the policy of this State to encourage local education agencies and parents, guardians, or surrogate parents to seek informal resolution of disputes or disagreements regarding the identification of children with special needs and the provision of special education and related services before filing a request for a formal administrative review of the matter.  To that end, the following provisions apply to the mediation of these disputes:
(1)	Purpose. – The purpose of mediation is to clarify the concerns of the parents and to resolve disputes.
(2)	Definitions. – As used in this subsection, the following terms have the following meanings:
a.	‘Dispute' means a disagreement between the parties that is subject to review under subsection (c) of this section.
b.	‘Mediation' means an informal process conducted by a mediator with the objective of helping parties voluntarily settle their dispute.
c.	‘Mediator' means a neutral person who acts to encourage and facilitate a resolution of a dispute.
d.	‘Parents' means parents, guardians, or surrogate parents.
e.	‘Parties' means the local education agency and the parents.
(3)	Nonadversarial. – The mediation shall be informal and nonadversarial as provided in G.S. 150B-22.
(4)	Rules of procedure. – The mediator is encouraged to follow applicable procedures provided in G.S. 7A-38.1, G.S. 7A-38.2, and applicable rules adopted by the Supreme Court under G.S. 7A-38.1.  The mediator may establish other procedures to facilitate an informal resolution of the dispute.  The mediator shall not render a decision or judgment as to the merits of the dispute.
(5)	Request for mediation. – Before a request for formal administrative review is filed, mediation shall commence upon the request of the parent or the local education agency with the consent of the parent.  After a request for formal administrative review is filed, mediation shall commence at any time upon the request of either the local education agency or the parent so long as the other party consents.
(6)	Selection of mediator. – The parties shall agree to the selection of the mediator.  The Exceptional Children Division of the Department of Public Instruction shall maintain a list of mediators who are certified or trained in resolving disputes under this subsection.
(7)	Notice of right to mediation. – The local education agency shall notify parents of their right to request mediation under this subsection.
(8)	Time periods tolled. – Notwithstanding G.S. 150B-23, time periods related to the filing of a formal administrative review or the taking of any other action with respect to the dispute, including any applicable statutes of limitations, are tolled upon the filing of a request for mediation under this subsection until the mediation is completed or the mediator declares an impasse.
(9)	Good cause for continuance. – A good faith effort by both parties to mediate the dispute is presumed to constitute good cause for a continuance so long as the administrative law judge does not find that the time delay for mediation would likely result in irreparable harm to one of the parties.
(10)	Inadmissibility of negotiations. –  Evidence of statements made and conduct occurring in a mediation shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other actions on the same claim.  However, no evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediation.  Mediators shall not be compelled in any civil proceeding to testify or produce evidence concerning statements made and conduct occurring in a mediation.
(11)	Mediator's fees. –  Unless the parties agree otherwise, a mediator's fees shall be paid as follows:
a.	Before a request for formal administrative review is filed, the local education agency shall pay the mediator's fees.
b.	After a request for formal administrative review, the parties shall pay the mediator's fees in equal shares.
(12)	Mediated settlement conference after a request for administrative review. – In addition to mediation as provided by this subsection, the parties may participate in a mediated settlement conference as provided by G.S. 150B-23.1.
(13)	Promotion of other settlement procedures. – Nothing in this subsection is intended to preclude the use of other dispute resolution methods to which the parties agree and to the extent permitted under State and federal law."
Section 2.  This act is effective when it becomes law.