The next section of the Settlement Agreement addresses “Initial Pre-Hearing Conferences”. Shortly after your case is sent to an Administrative Law Judge (ALJ), the ALJ should hold a pre-hearing conference. A pre-hearing conference is a meeting with the parties (or their attorneys) and the ALJ to decide how the case will proceed and its structure.
Relief #12 – Paragraph 15
“It is best practice that within five (5) days after transmittal of the case from the OSE to the OAL, the assigned ALJ should conduct a pre-hearing conference with the parties and/or their counsel pursuant to N.J.A.C. § 1:6A-13.1. It is best practice to conduct such conference via telephone or video-conferencing technology, e.g. Zoom. At such time, the ALJ shall discuss with the parties the parameters of the case and required procedures. The ALJ shall generate and distribute a Pre-Hearing Order with such procedures. The ALJ may use the attached from as a model Pre-Hearing Order. (See Exhibit B.)”
What does this mean?
While not required, it is “best practice” for the ALJ to hold a pre-hearing conference within five days after the case is sent to the ALJ. This typically is done via a conference call or Zoom meeting. The ALJ will discuss what the case is about and the procedures going forward, for example what is the nature of the dispute, how many witnesses each side will have, the amount of time for testimony, how documents will be offered, and other procedures. This meeting should result in a “Pre-Hearing Order”. The Settlement Agreement offers a model form for this Order shown below (or you can download a copy) to familiarize yourself with the issues to be discussed and what rules the case will follow.
Relief #13 – Paragraph 16
“After transmittal of the case to the OAL, settlement conferences with an ALJ may occur upon the joint request of the parties. The ALJ conducting such conference may not be the ALJ assigned to hear the case unless the parties agree otherwise. In cases, the adjournment and extension procedures in the Consent Order entered in the C.P. Class Action must be followed.”
Footnote: “The parties may continue voluntary settlement conferences on their own, see N.J.A.C. § 1:6A-4.1, but settlement conferences involving an ALJ after transmittal of the case to the OAL are discouraged because of compliance with the forty-five (45) day timeline and mandates of the C.P. Class Action Consent Order as well as conflicting with the purpose of the thirty (30) day resolution period.”
What does this mean?
When a parent files a request for a due process hearing or mediation, there is a period of time when the parties try to resolve the dispute – either by mediation or by a settlement conference. If the case doesn’t settle during that period, then it gets sent to an ALJ for a hearing. This provision of the Settlement Agreement provides another opportunity to have a settlement conference after transmittal, but only if both sides request and consent to it. If a settlement conference occurs with the ALJ assigned to the case, that same ALJ may not be the one who hears the case unless both sides agree to it. If the parties want to adjourn the hearing (extend the time), they must follow the procedures of adjournment outlined in the Consent Order and Settlement Agreement from the C.P. Class Action case. The footnote to this section means that the parties – without involvement of an ALJ – may and probably should continue to try to voluntarily settle the case before it goes to hearing.