Attendance at Mediations by Non-Attorney Employees of Law Offices

INFORMATIONAL LETTER: 15 POLICY CODE: IHBA

TO: Superintendents of Schools; CDS Site Directors; MADSEC; Disability Rights Center; Maine Parent Federation; Southern Maine Parent Awareness; Drummond, Woodsum & MacMahon; Murray, Plumb & Murray, KIDS LEGAL of Maine FROM: Angela Faherty, Ph.D., Acting Commissioner DATE: August 20, 2010 RE: Attendance at Mediations by Non-Attorney Employees of Law Offices

Maine Unified Special Education Regulation 101 §XVI.3.B(8) provides the following:

School administrative units [SAU’s] may be represented by counsel in a mediation only when the parents are represented by counsel. An attorney representing a parent shall provide the superintendent of the school administrative unit and the Due Process Office [DPO] of the Maine Department of Education with at least 7 days written notice prior to the mediation that they will be representing the parent at the mediation.*

In a memorandum issued by the DPO on January 9, 2002, the DPO interpreted the above language to require the 7 days prior written notice whenever a non-attorney from an attorney’s office intended to appear at mediation with a parent. This interpretation was based, at least in part, upon the belief that the non-attorney in that instance is acting as the attorney’s designee, and should therefore not be allowed to function in a way that would not be permitted to the attorney. By the same reasoning, just as a SAU may not be represented by an attorney in a mediation unless the parent is so represented, the SAU may not be accompanied at the mediation by a non-attorney employee of a law office unless the parent is similarly accompanied by a non-attorney employee of a law office, or else is represented by an attorney (for purposes of this rule, the Disability Rights Center is to be considered a law office). This interpretation will also further the Department’s efforts to provide a “level playing field” to the parties in mediation, and thus encourage them to utilize this procedure.

*Note that, pursuant to Information Letter #91 (February 2, 2006), the parties may waive the 7-day written notice requirement.

Any questions regarding this memorandum should be submitted to the Due Process Office by e-mail at patricia.neumeyer@maine.gov . or by phone at 624-6644.