A number of design elements need to be decided upon when developing a child protection mediation (CPM) program. These include:
- The goals of the program
- Timing of mediation
- Whether mediation is mandatory or voluntary
- Who should do intake
- How much time participants should be required to block off for mediation
- Who mediates the cases
- Mediator training
- Participant education and preparation
Each of these elements has its own set of issues that could impact the effectiveness and efficiency of a program, as will be discussed below.
The following are common goals for CPM programs:
- Give parents voice
- Improve communication among professionals
- Help parents understand their situation and the issues
- Address relationship issues and conflict between parents and foster parents
- Develop service plans for children and parents
- Find temporary placement for the child
- Create or refine visitation schedule
- Increase parental compliance with case plan
- Reduce time to permanency (the time from petition to the child having a permanent home)
Generally, when a goal can be achieved within mediation, that goal is likely to be achieved. For example, there is ample evidence that mediation in this context gives parents voice and helps them to understand their situation and the points of view of the others at the table. Previous evaluations have also shown that mediation improves communication among the attorneys and social workers. When a goal relies on actions outside of mediation, the situation is a little murkier. Mediation’s impact on parental compliance with the case plan is not well-established, although the majority of studies that examined this found compliance to be greater when parents mediate. Additionally, study results varied widely as to whether mediation has an impact on time to permanency.
What this means is that courts can count on many of their goals being met, but should not rely on it to reduce time to permanency.
FACILITATION AT INTAKE
Mediation can be utilized at the initial shelter care hearing when the child is first removed from the home. At this stage, parents are often disoriented by the process, and often do not have clear information about what is happening to their child. Utilizing mediation at this stage, through what is called a facilitation session, can be useful for providing parents an update on their child as well as an overview of the legal process which is about to commence. Facilitations also provide a good opportunity for parents to exchange contact information with their case worker and open communication between them so that they can avoid miscues and delays to their case.
Early mediation usually has been used to identify an appropriate temporary home for the children, and to set up services for the parents and children in the interest of expediting return home. It is also used to orient the parent to the child protection process, their responsibilities in the process and the roles of those who will be involved in their case. In some courts, it can include the wording of the petition. Prior to adjudication (at which it is determined whether the parent has abused or neglected the child), it can also include the merits of the case with an eye toward reaching an agreement on the facts of the case in order to avoid trial.
For early mediation, its exact timing should take into account other case activities that take place at that time to avoid overlap of information and tasks. For example, if a family team meeting is required at the beginning of a case, the mediation should not be held too soon thereafter. Professionals in Washington, DC, said that they preferred mediation to take place ten to 14 days after the family team meeting. This allows for enough time to have elapsed between the family team meeting and the mediation for services to have been put in place and children and parents to have gone through the required assessment so that a productive discussion can take place about next steps. They also wanted it to occur no later than 30 – 40 days after the initial hearing so that progress on the case doesn’t lag.
Mediation between adjudication and the determination of permanent residence for the child focuses on treatment plans, visitation, compliance with both of the above, and conflicts arising between the natural parent(s) and the foster parent(s) or guardian, or the natural parent(s) and the caseworker. Mediating these issues can overcome roadblocks to the progress of the case by helping the parent(s) to understand what they need to do in order to effect reunification and by dealing with conflicts that can delay progress toward permanency. It also serves to provide all those involved in the case with more effective exchange of information.
The timing issue at this age is primarily not to wait too long to mediate. In courts without early mediation, previous research shows that this mediation is the first time parents have had the chance to have voice and to feel a sense of control over a process in which they were generally a spectator. Therefore, programs may want to encourage mediation early in the post-adjudication or permanency phase of the case.
TERMINATION OF PARENTAL RIGHTS MEDIATION
Mediation of issues surrounding termination of parental rights is undertaken in order to facilitate the children’s transition to their permanent home by having parents agree to the terms of this transition. If parents agree in mediation to relinquish their rights, an adversarial hearing is not required. In addition to termination of parental rights, mediation at this time can also negotiate post-adoption contact between the natural parent(s) and the child in those states in which this is permitted. This serves to help the natural parents to feel more comfortable with the termination of their rights as well as to allow the children to maintain contact with their parents.
The outcomes of mediation of the issues surrounding termination of parental rights have been mixed. In studies of the mediation of termination of parental rights in Hamilton County and Lucas County, Ohio, 40% and 60% of cases reached agreement, respectively. Of these, approximately one-third of parents in one study and three-quarters of parents in the other voluntarily relinquished their rights. In the other cases, the agency either agreed to permanent custody without termination of rights or agreed to give the parents another chance at reunification.
In general, mediation is mandatory in programs in which referral is early or late in the case. Mediation is almost always voluntary during the post-adjudication and permanency phases. It is also voluntary in some program with early and late referral. Mandatory programs often have specific objectives for mediation, such as the development of a service plan or the avoidance of trial. Voluntary programs have more diffuse objectives, such as repairing relationships, getting parents back on track for reunification or improving communication.
Mandatory and voluntary mediation involve distinct benefits and drawbacks. Mandatory programs have the obvious benefit of high participation rates. For early programs, this means that most parents have the opportunity for voice, understanding and engagement in the case. If professionals are involved in mediation at this point, they have the opportunity to see the parents in a different setting than in court and to demonstrate that they are not the enemy. On the other hand, mandatory mediation requires significant resources. Further, if professionals are required to participate in mediation, the process can become burdensome to them. Courts electing to have mandatory programs with professional participation should determine how best to relieve this burden while maintaining the integrity and effectiveness of the mediation process. This will be discussed in greater detail under “Time in Mediation,” below.
Voluntary programs tend to lead to mediation happening late in the case, even when mediation is encouraged throughout the life of the case. They also often have low participation rates. Courts electing to make mediation voluntary will need to do three things: 1) educate judges about which situations merit mediation; 2) educate professionals about the benefits of mediation how to identify when mediation could be beneficial; and 3) continually remind judges and professionals of the mediation program. Courts should also keep in mind that they will need to have ongoing education opportunities as lawyers and caseworkers move on and new ones join. The use of instructional videos and manuals will help to do this.
When a case is referred to mediation, the intake process begins. This includes getting information from the participants that will be needed for the mediation and providing initial information about mediation. This sounds like a simple process, but it can become time-consuming.
Intake can be done in person or via email. Generally, in-person intake is done by a program administrator or mediator directly after the hearing at which the parties have been ordered to mediation. Each person involved in the case is asked to complete an intake form that includes contact information and questions about the issues to be discussed and special circumstances. Parents are also given information about the mediation at this time.
Because everyone involved in the case is together when intake is done in person, it is easier to get the needed information about the issues involved, as well as special needs for the mediation, such as intimate partner violence screening, phone mediation or a translator. It is also much more efficient for scheduling the mediation, as the professionals can compare their calendars and come up with a time and date then and there, rather than through an email exchange.
When in-person intake is not possible, intake and scheduling are generally done via email, with participants submitting intake forms to the program and providing their availability for mediation. This can take a significant amount of time, delaying the mediation and causing program staff to spend much more time tracking down and responding to those involved.
Mediation takes time, particularly for the natural parents to understand what is being said and to have the opportunity to express themselves and discuss their concerns. Participants don’t have time. Parents may need to get to work or to pick up their children from school. Professionals may need to be in court or to have time to work on their other cases. Time spent in mediation is especially important in mandatory programs in which the professionals are required to participate. In these programs, there is a lot of pressure on both the program and the mediators to limit the amount of time spent in mediation.
The decision as to how much time to set aside for mediation is therefore a balancing act. Programs commonly require participants to set aside at least two hours for mediation, including time spent waiting for all participants to arrive. Others require more. This time requirement is supported by two studies. Both found that two-thirds of the mediations took at least two hours. In the Washington, DC, study, the time needed for mediation included wait time. In the Cook County, Illinois, study, wait time was not included, which may mean that the mediation process took longer there than in DC.
If mediation requires two hours or more if it is to be effective, what can be done to respond to the needs of professionals who are required to participate? One possibility is to work to reduce the amount of time spent waiting for everyone to arrive. In the Washington, DC study, wait time averaged 31 minutes. Because the cause of the delayed start was often parents arriving late, the program decided to require parents and their attorneys to arrive 30 minutes before the scheduled mediation. This allowed the attorneys to talk with the parents before the mediation, and for the mediator to conduct a screening for intimate partner violence, if needed.
The other way to address this is to take steps to ensure that mediation is productive. In focus groups RSI conducted during an evaluation of the DC program, the professionals saw mediation as providing benefits to themselves when it worked well. This included being able to get more information about the parent(s), the children’s status and the case so that they could make better decisions and address issues. When mediation was productive, they were less likely to be frustrated about the time they spent in mediation.
Making mediation productive includes timing the mediation so that there is something to talk about. (See “Timing,” above.) It also includes ensuring the mediators are well-trained, the professionals well-educated and the parents well-prepared. (See “Maximizing Effectiveness of Mediation,” below.)
You will have two key decisions to make regarding mediators. One is whether your mediators will be staff, contract or volunteer. The other is whether to use co-mediators or single mediators.
Although staff mediators are used by some programs, most use either contract mediators or volunteers. Thus, contract and volunteer mediators are the types that will be discussed here. The considerations for both types of mediators are:
- Turnover, leading to new mediators coming in over time
- Possible limited opportunities to mediate throughout a given year
- Limited interaction among mediators
Turnover and limited opportunities to mediate call for regular trainings and continuing education opportunities. (See “Training and Supporting Mediators,” below, for more on this.) This indeed was what mediators told us during a focus group in Washington, DC. The contract mediators were required to complete continuing education in order to remain on the court’s roster, which they appreciated, but they wanted more information about how to deal with particular issues that they regularly faced in mediation. The mediators in DC also wanted more interaction with other mediators to discuss how they handled their mediations, as well as an opportunity to debrief their mediations with program staff.
Due to the large number of people who often participate in CPM, many programs use a co-mediation model. This helps mediators to manage the discussion and maintain the flow of the mediation, thus reducing the amount of time mediation may take. Generally, there is a lead mediator whose role is to facilitate the discussion, while the second mediator takes notes and watches the expressions and body language of the participants to gauge their reactions and emotions. The second mediator may also jump in with a particular participant if the lead mediator is having difficulty with them. The mediators may also confer about how to move forward with a tricky mediation, and can debrief after the mediation ends.
In terms of maintaining the flow of the mediation, the mediators may caucus with different individuals at the same time, thus making the mediation more efficient. The mediators commonly also divide duties for the mediation, with one wrapping up the mediation while the other types up any agreement that has been reached during the mediation.
There is little research that compares the effectiveness of co-mediation to mediation by a single mediator. The one evaluation that looked at this (a 2005 evaluation of the Washington, DC, program) found no difference in settlement rate.
AFCC’s Child Protection Mediation (CPM) Model Mediator Competencies provide a roadmap to create and deliver quality training with the goal of providing mediators with the knowledge, skills and abilities of effective CPM mediators. They can also be used to guide programs in mentoring and supervision of mediators.
Effective mediation depends upon well-supported mediators, well-educated professionals, and well-prepared parents and family members.
As discussed above, mediators need to be well trained and to have ongoing education. They also should be assessed regularly.
No matter who you recruit to mediate your cases, you will need to train them. CPM programs are relatively uncommon, and it is unlikely that even seasoned mediators in your jurisdiction will have had experience mediating these cases.
CPM training should orient mediators to the child protection court process, including the particular contours of your jurisdiction. While a CPM mediator can look to the professionals in the room as the subject matter experts (and should in fact not be answering questions related to the court process – that could be seen as providing legal advice to parties), they should understand generally the context in which these parties are mediating their disputes. Additionally, if you are employing a co-mediation model, you will want to orient the mediators to that process, as many mediators do not have experience co-mediating.
CPM cases can be emotionally fraught and difficult to manage given the number of individuals in the room. For these reasons, we recommend using experienced mediators and/or those with strong familiarity with the child protection context. Additionally, while many mediators have backgrounds as attorneys, we strongly encourage you to consider drawing on a mediator pool of individuals with experience in social work, family therapy or child welfare. We believe these experiences provide many intangible skills and perspectives that will benefit your program.
The Association of Family and Conciliation Courts has a published a guide on mediator competencies for child protection cases.
Beyond an initial training, providing continuing education to your mediators is critical to the success of a program. This is particularly true if your mediators are volunteers or contractors. These mediators may mediate infrequently, depending on the number of cases referred to mediation and the mediators’ availability; continuing education will refresh them on necessary skills on a regular basis. Additionally, there are certain topics, such as intimate partner violence and cultural competency, that merit further exploration beyond what is practicable under the constraints of an initial training. Having continuing education sessions several times a year also furnishes a good opportunity for your mediators to build rapport with one another and develop a learning community. This community is particularly beneficial for co-mediators as it will help develop rapport between those who will be co-mediating in the future. In addition, a strong learning community allows for a more robust and meaningful peer-review process, establishing a forum to address common issues and challenges faced by mediators.
Instituting a system of peer review allows mediators to learn from each other and candidly reflect on one another’s approaches and techniques. Additionally, review from a peer rather than court personnel can make the mediator more comfortable and more receptive to feedback. You will want to create a process that allows you to correct any urgent “red flag” behavior, while still being flexible enough to accommodate different approaches to mediation. For further guidance, please see RSI’s Model Tools for Peer Review.
Effective mediation requires that professionals productively participate and cooperate with the mediator(s). This requires that they be educated on the purpose and benefits of mediation, the role of the mediator(s) and their role in the process. Regular continuing education should be offered, with Continuing Legal Education and Continuing Education Unit credit provided for attorneys and social workers, respectively, to encourage them to attend. Program administrators should actively seek out opportunities to speak with caseworkers and attorneys in a variety of forums, including regional child welfare meetings, related bar association functions and other professional gatherings.
Parents must be prepared for mediation in order for them to participate fully. Some programs will do this via phone call not long before the scheduled mediation, preferably the night before. This preparation reminds the parents of their mediation and provides the program control over what the parent learns about what to expect in mediation and how they should take advantage of their opportunity to mediate.
If the program relies on the parents’ attorneys to prepare them, the attorneys control what is said to the parents about mediation. This may not be the best message for an effective mediation. This was observed by one evaluator, who witnessed parents’ attorneys telling parents not to worry, that the mediation would be short and they would be out of the room soon. The evaluator believed this left the parents with the sense that mediation was just a hurdle to overcome, rather than their opportunity for voice and understanding.
For more information, see the Association of Family and Conciliation Court’s Guidelines for Child Protection Mediation.