115.797 Mediation.

(1) Definitions. In this section:

(a) “Dispute" means any disagreement between parties concerning the proposal or refusal to initiate or change the evaluation, individualized education program or educational placement of a child with a disability or the provision of a free appropriate public education to such a child. “Dispute" includes any such disagreement between parties that arises before the filing of a request for a hearing under s. 115.80 or in which other processes, including a hearing under s. 115.80 or litigation, have been requested or commenced.

(b) “Mediation" has the meaning given in s. 802.12 (1) (e).

(c) “Party" means a competent adult pupil or the parent of a child or adult pupil adjudicated incompetent who is the subject of a dispute, and the local educational agency.

(2) Request for mediation, consent of parties.

(a) The division shall establish a program for the mediation of disputes between parties. A party may request the division to arrange for mediation of a dispute at any time. The request shall be in writing, shall briefly describe the dispute and shall identify both parties. Both parties may jointly request mediation.

(b) If only one of the parties requests mediation, within 5 business days after receiving the request the division shall notify the other party in writing of the request for mediation. The notice shall include all of the following:

1. An explanation of mediation and its advantages.

2. A statement that participation in mediation is voluntary and that agreement or refusal to participate will not affect the resolution of the dispute in any pending or potential adjudicative process, or the timing of that process, unless the parties agree otherwise.

3. A request that the party notify the division within 5 business days after receiving the notice regarding the party's consent or refusal to participate in mediation.

(c) If the division does not receive timely response under par. (b) 3. or if the other party notifies the division under par. (b) 3. of its refusal to participate in mediation, the division shall so notify the party that requested mediation.

(3) Appointment of mediator.

(a) A party that requests mediation may nominate a mediator from the roster under sub. (4). If a party nominates a mediator, the division shall include in the notice under sub. (2) (b) the name of the nominated mediator.

(b)

1. If both parties nominate the same person as mediator, the division shall appoint that person as mediator if he or she is on the roster under sub. (4) and available to mediate.

2. If both parties request mediation but neither party nominates a mediator, the division shall propose a mediator from the roster under sub. (4).

3. If both parties consent to mediation but the party that requests mediation does not nominate a mediator, the nominated mediator is not available or the other party does not consent to the appointment of the nominated mediator, the division shall propose a mediator from the roster under sub. (4).

(c) Whenever the division proposes a mediator under par. (b) 2. or 3., it shall send information about the mediator's training and experience to both parties. Within 3 business days after receiving the information, either party may request the division to propose a different mediator from the roster under sub. (4).

(4) Roster of mediators.

(a) In consultation with the council on special education, the division shall maintain a roster of mediators qualified to resolve disputes. The division may include a person on the roster if all of the following apply:

1. The division determines that the person has the appropriate skills and knowledge to act as a mediator under this section.

2. The person participates in a training program of at least 5 days' duration that has been approved by the division.

3. The person agrees to mediate, at the rate of compensation established by the division, the number of disputes required by the division each year.

4. The person consents to be observed by a division representative at any mediation session if the parties consent.

(b) The division may not maintain a person on the roster unless he or she participates in at least one day of additional training approved by the division each year.

(c) Subject to subch. II of ch. 111, the division may remove from the roster any person whom it believes cannot serve effectively as a mediator.

(5) Mediation.

(a) Unless both parties agree otherwise, mediation shall commence within 21 days after the mediator is appointed and shall not delay hearings or appeals related to the dispute. All mediation sessions shall be held in a location that is convenient to the parties.

(b) The parents of the child or adult pupil and 2 representatives of the local educational agency may participate in mediation. With the consent of both parties, other persons may participate in mediation. With the consent of both parties, a division representative may observe the mediation sessions.

(c) At the commencement of mediation, the mediator shall inform the parties of the information that is required to be reported to the division for the purpose of administering the mediation program. The division may not require a mediator to disclose the substance of any matter discussed or communication made during mediation.

(d) Either party may recess a mediation session to consult advisors, whether or not present, or to consult privately with the mediator. The mediator may recess a mediation session to consult privately with a party. If the mediator does so, he or she shall disclose the general purpose of the consultation but may not reveal other information about the consultation without the consent of the party consulted.

(e) Unless both parties and the mediator agree otherwise, no person may record a mediation session.

(f) Discussions that occur during mediation are confidential and may not be used as evidence in any subsequent hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation.

(g) The mediator and either party may withdraw from mediation at any time.

(h) No adverse inference may be drawn by any hearing officer or adjudicative body from the fact that a party did not consent to mediation, that a mediator or party withdrew from mediation or that mediation did not result in settlement of the dispute.

(6) Agreements. If the parties resolve the dispute or a portion of the dispute, or agree to use another procedure to resolve the dispute, the mediator shall ensure that the resolution or agreement is reduced to writing, that it is signed by the parties and that a copy is given to each party. The written resolution or agreement shall state that all discussions that occurred during mediation are confidential and may not be used as evidence in any hearing or civil proceeding. The resolution or agreement is legally binding upon the parties and is enforceable in the circuit court for the county in which the local educational agency is located.

(7) Mediator compensation.

(a) The division shall establish a schedule for the compensation of mediators and the reimbursement of their expenses. The department shall pay mediators from the appropriation under s. 20.255 (1) (me).

(b) If the parties agree that the amount of compensation paid to a mediator should be greater than the schedule under par. (a) allows, the additional compensation is the responsibility of the parties.

(c) If the parties have agreed to mediation by a mediator who is not on the roster under sub. (4), the mediator's compensation is the responsibility of the parties.

(8) Program evaluation. The division may require that mediators, and may request that parties, participate in the evaluation of the mediation program. The division shall ensure that mediators and parties may participate in evaluating the program without being required to identify themselves or the other mediation participants. The division may not disclose a party's or mediator's evaluation to any other mediation participant without the party's or mediator's consent.

(9) Contract for services. The department may contract with a private, nonprofit agency to administer the mediation program under this section or for mediator training or other services, including outreach and promotion, related to the administration of the program.

History: 1997 a. 164; 2005 a. 258, 387.