Children’s Legal Bulletin - Spring 2003

                                                           

Mediation Is A Viable Tool For DYFS Cases

 

Court-ordered mediation in child welfare cases helps families, foster parents, lawyers and caseworkers reach amicable agreements that often lead to more stable, loving homes for abused and neglected children. A recent pilot revealed that non-adversarial mediation often achieves better outcomes than the traditional, adversarial court process in cases involving children placed in foster care by the Division of Youth and Family Services (DYFS).

Mediation is often the first - and only time - parents, DYFS staff, relatives, foster parents and lawyers sit down together to discuss what is best for the children. This process leads to a deeper understanding of the issues affecting the family. It often prompts parents to cooperate with the plans for reuniting the family. Or, it helps parents unable to care for their children to be more comfortable placing their children permanently with relatives and/or with the process of surrendering their parental rights. Ultimately, this translates into more stability for abused and neglected children.

With the state Division of Youth and Family Services undergoing major reform, mediation, if expanded statewide, could become an important tool in moving toward protecting New Jersey’s abuse and neglected children.

This Legal Bulletin describes the mediation process used in the Essex Vicinage pilot project. It examines the project’s success and reports the success of mediation programs in other states.

 

Introduction

Mediation is a process that brings conflicting parties together with a trained mediator to identify issues and explore options that could resolve the case. Other interested people, such as relatives, foster parents, family friends, and therapists, may also participate. The goal is for the parties to craft their own agreement.  The participants, basically, get to make their own decisions, which increases the chances that everyone will live up to the terms of the agreement. The mediator’s role is to safeguard the integrity of the process, not determine the outcome. Any agreement reached can be incorporated into a court order.

Assisted by grants from The Schumann Fund for New Jersey and the Hite Foundation, the Association for Children of New Jersey (ACNJ), working in partnership with the Superior Court of New Jersey, Family Part, in the Essex Vicinage, undertook a pilot project to use mediation in litigation cases initiated by DYFS to remove children from their parents’ custody because of abuse and neglect. These children have been placed into foster homes or some other type of residential placement.

Three objectives were envisioned for this pilot:

●  To develop a group of trained mediators to facilitate child welfare cases

●  To provide mediation services in 180 DYFS litigation cases

●  To statistically evaluate the project.

The first two objectives were successfully achieved. Unable to achieve the third objective in the manner originally intended, ACNJ assessed the Essex Vicinage pilot and sought information from program evaluations in other states.[1]

This Legal Bulletin summarizes the lessons learned in the Essex Vicinage pilot. Participants reported that the process was effective and they felt listened to, valued, and respected.[2]  The majority of professional participants said the mediation session achieved better outcomes than the more adversarial court hearings. More issues were resolved. The process gave parents a more relevant role in the process.[3] And, the mediators were reported to be skilled and professional.[4]

Our overall conclusion is that mediation is a viable alternative to litigating DYFS cases. 

 

Background

The introduction of mediation into child protective services cases, sometimes referred to as dependency cases, occurred through a pilot in one Los Angeles County juvenile court in 1983. By the time New Jersey introduced its pilots in 1999,[5] “over a dozen states had programs operating in selected jurisdictions.”[6]

Meeting the time frames mandated by the Adoption and Safe Families Act of 1997 (ASFA) can be difficult. If reunification with a parent or relative does not occur in a timely manner DYFS must find another family to adopt the child.

Mediation provides a chance for a non-adversarial conversation between parents and DYFS staff, and between parents and caretakers, which does not happen in the courtroom. Difficult issues can be confronted and resolved with the assistance of skilled mediators.

ACNJ’s model was to initiate mediation early in the court case; soon after the child is removed from the home, when there is a greater chance of engaging parents and other family members in the process. This would result in more options for the child. The Essex Vicinage Family Court was favorably disposed, as long as parents have access to legal advice prior to and during mediation.[7] ACNJ sought grant funding to support a mediation pilot.

 

Essex County Pilot Implementation

Training

With the assistance of Gregory Firestone, Ph.D. from the University of South Florida’s Mediation Institute,[8] ACNJ staff developed a curriculum to train the certified mediators recruited for the pilot.

ACNJ held orientations to introduce the pilot program for the attorneys, DYFS staff, and court volunteers who might participate in a mediation session. ACNJ felt this groundwork was essential to the implementation of the pilot.[9] 

 

Program Logistics

ACNJ staff worked with court staff and members of the Essex Vicinage Model Children in Court Advisory Committee to develop protocols for case referral and scheduling. The protocols provided that any party or attorney could request mediation, but the case needed to be referred to mediation through a court order. Monthly calendars, coordinated by the court’s mediation program, assigned specific dates to each judge, so the date and time of each mediation could be finalized while attorneys and parties were present to minimize scheduling conflicts. Copies of the Referral Order were distributed in court. Throughout the pilot, protocols were adjusted as problems arose. 

 

Confidentiality

During a mediation session, the parties can agree to discuss any issue. In most instances, this includes the case plan, immediate and long-term goal(s), and specific case issues such as services, visitation, and identification and involving fathers and relatives. 

Participants are assured that anything said in the session is confidential. The only exceptions are a new allegation of abuse or neglect, or a threat of harm to another individual. This promise of confidentiality is similar to the representation made in programs in other states.[10]  Confidentiality is critical to the success of any program. All participants agree to protect the confidentiality of the mediation session by signing a Confidentiality Agreement at the beginning of the session.

 

Mediation Referrals Begin

In January 2000, judges began to refer cases to mediation. The mediators begin with introductions and a brief explanation of the process and the role of the mediator. The Confidentiality Agreement is reviewed and signed. Ground rules for the session are explained, which include treating all with respect, listening and not interrupting. Then, the mediator directs the parties, generally beginning with the parents, to identify issues and concerns about the children and the case. Once the issues are identified, the mediator elicits the positions of all participants and possible solutions to each. 

If a party wishes to speak privately to her/his attorney, to the mediator or to another party, a caucus or private meeting is requested. The results, not the full content, of that private meeting, are subsequently reported to the entire group.

If an agreement is reached, the mediator reduces the terms to writing and the agreement is presented to a judge to be adopted by the court as a consent order. The judge can approve or reject the terms, or modify with the consent of all participants. As of the printing of this Legal Bulletin, more than 500 DYFS cases have been referred to mediation.[11]

 

Assessment

After the referral process began, ACNJ determined that an empirical court record and/or case record review was unlikely to provide enough information about the mediation process to draw any conclusions about the effect of mediation on ongoing casework and case outcomes. An assessment was deemed more appropriate than a statistical evaluation.

Satisfaction Questionnaires were developed for both the parents and the professionals attending mediation by staff from ACNJ and Essex Family Court staff with the assistance of Shirley Dobbins, Ph.D., from the National Council of Juvenile and Family Court Judges. 

These “exit surveys,” completed by participants at the conclusion of the mediation sessions, sought to collect information regarding the following: whether parents felt comfortable with mediation, whether parents were involved in problem-solving during the mediation, the effectiveness of the mediator, and the overall opinion about the mediation program.[12]  The Satisfaction Questionnaire for the professionals participating in the mediation session was similar in its goals. The professionals were also asked to assess the parents’ and the relatives’ participation.[13] 

Mediators were asked to complete a Mediator Evaluation Form at the end of each session, which included who participated, issues addressed during the session, outcome of mediation and overall assessment.[14]  

Staff at the National Council of Juvenile and Family Court Judges subsequently tabulated the results of the questionnaires gathered from the first 131 referrals, which generated 185 mediation sessions.[15]  Both parents and professionals reported that they felt valued and an important part of the mediation session. The majority of participants also reported feeling respected and listened to during the mediation, felt the process helped them understand everyone else’s point of view, and felt a part of the problem-solving process.[16] 

“In the 69 mediations for which there were completed mediator evaluation forms, mothers participated in 74 percent of mediations and fathers participated in 57 percent of mediations.”[17] Seventy percent of cases required one session to resolve identified issues, 25 percent required two sessions, and 5 percent required three or more sessions. The mediation sessions lasted 3.38 hours on average.[18] Toward the end of the grant period, the mediators completed an ACNJ survey, the results of which were discussed at a meeting involving ACNJ staff, mediators and administrative staff.

Individual observations made by the mediators validated many of the findings from the Satisfaction Questionnaires. Mediators observed that in some cases, the mediation session was the first time that DYFS staff had the opportunity to sit with the family to explain the issues and the Division’s areas of concern. 

In these mediations, relatives identified their concerns and ideas regarding plans for the children. These relatives had felt uncomfortable being frank with DYFS staff in prior contacts. Before mediation, they felt intimidated or uncomfortable with the DYFS process.  They did not understand that other options for the children could be suggested and considered.

Mediators were able to defuse ongoing conflicts between DYFS staff and families to move cases forward. In many cases mediation let participants cooperate and solve problems. 

The mediators largely agreed that cases should be referred to mediation as soon as possible after the child is placed. The mediation sessions may be the first time the parties meet each other and start to appreciate the other party’s position. Misunderstandings are often cleared up in this neutral environment allowing all to work towards finding relevant services for the family and the best solutions for the children. 

 

ACNJ Survey

ACNJ then conducted its own survey of 20 cases that had been referred to mediation prior to a Title 30 complaint seeking to terminate the parents’ rights being filed.  Each of the selected cases had reached an agreement in mediation. The mediation session in these 20 cases had occurred at least six months prior to the time of ACNJ’s survey contact. The agreements attempted to move the case forward, focusing on visitation and services issues, expert evaluations and relative involvement.

Survey Questions along with a copy of the mediated agreement, were forwarded to the attorneys and caseworkers identified from the signed agreement in these 20 cases. The survey asked what parts of the agreement were implemented, if the mediated agreement resulted in a different outcome than court hearings, and who else should have been included in this process.

ACNJ received responses from at least one participant in 18 of the 20 cases. A few attorneys and caseworkers had left their positions and thus were unavailable.  Responses were received from eight attorneys representing parents, five caseworkers, four attorneys representing DYFS, and four law guardians. Some respondents were involved in two or three of the selected cases. Most respondents had participated in 15 to 20 mediations prior to the time of the interview and offered comments on the program.

There were five cases in which most or all of the agreement was implemented and 10 cases in which part of the agreement was implemented. In one case, no aspect of the agreement was implemented. No response was received for two cases. In two other cases, the attorneys responding did not have enough current information about the case to accurately respond to the survey. 

In one case, where guardianship appeared inevitable, the participants reported that mediation helped the father and the paternal grandmother resolve their differences. As a result, they decided to parent the child together. In another case, the mediation helped the father to better understand his wife’s need for treatment. That understanding led to the wife receiving the treatment and the family was reunited. 

Mediation helped establish paternity in two other cases, which led DYFS to identify paternal relatives who took custody of the children. 

In four cases, respondents indicated that, although the ultimate result would have been the same in court, mediation provided a much-needed chance to clarify misunderstandings between relatives caring for the child and either DYFS staff and/or parents. Clearing up differences and laying a foundation of understanding helped to build a more solid family base for these children.

In three cases, DYFS was about to move to terminate parental rights. Reportedly, the mediation helped the parents to acknowledge the existing problems and/or their inability to parent. The mediation also gave parents a chance to meet foster parents and form a foundation of trust toward the people who might raise the children. These parents subsequently surrendered or defaulted when they would have unsuccessfully contested the termination complaint. This gave the children a faster path to a permanent, stable home, instead of continuing to languish in foster care.

Several cases involved disputes between parents, or between relatives and a parent.  Although mediation in these cases did not always result in long-term amicable solutions, respondents said that a more positive outcome might have occurred, if the case had been referred to mediation earlier. Similar opinions were expressed about some other cases.

Most felt that mediation was beneficial even in the cases involving agreements that subsequently fell apart. Parents and/or relatives learned practical information, and left with a better understanding of information they had previously received. Even when the result was viewed as inevitable, mediation allowed the case to proceed quickly rather than languishing in the court system. 

 

Identified Potential Problem Areas

Scheduling and Logistics

Mediators and administrative staff all agreed that proper scheduling is critical to the success of child welfare mediation. They also agreed that it is probably the most time-consuming aspect of the program.  Cases should be referred via a court order to insure that all participants understand the importance and that attendance at the initial session is mandatory.  The Essex Vicinage Family Part judges made mediation a priority. Other states have expressed similar sentiments.[19] 

The rescheduling of the mediation session can become a mammoth task, given the number of participants, which ranged from seven to 16 persons. Reminder calls were helpful, and allowed time to address logistical problems, such as making sure the appropriate paperwork was completed for the attendance of incarcerated parents, and that interpreters were available when necessary.

In cases where psychological or home evaluations were ordered, mediators recommended that mediation occur after the evaluation reports became available.  Some participants were not willing to commit to long-term plans without these reports. The mediators said having the evaluation reports appeared to improve the quality of the discussion in the mediation session.

 

Incarcerated Parents

Selection of the mediation site should take into account participation of parents in prison.  Transporting prisoners may affect the time of the session. Attorneys may need to meet with their clients prior to the actual session. In Essex County, the Sheriff’s Department provided staff to sit with prisoners in the mediation. 

It is helpful if the judge can issue the appropriate writs at the time the case is referred. Video conferencing from the prison was found to be successful, although not all prisons have video conferencing capability.

 

Title 30 Referrals

Many of the cases were referred after the Title 30 termination of parental rights complaint had already been filed or just prior to DYFS filing the complaint. The issue of parental surrender was raised during the mediation. 

Some argue that mediation is inappropriate in these cases, putting parents at a disadvantage negotiating with DYFS. One attorney responding to ACNJ’s survey reported that the Deputy Attorney General’s efforts to convince a mother to surrender her parental rights were so overwhelming that the mother was afraid to attend the next mediation session. While this concern is understandable, a well-trained, neutral mediator can maintain the balance of power. Parents in termination of parental rights cases can benefit from mediation.

In some cases, birth parents and foster parents met for the first time in mediation, and had the opportunity to see each other’s humanity. Parents spoke openly and expressed their concerns without fear of negative consequences.[20]

In many cases, the birth parent(s) decided, with the advice of counsel, to surrender their parental rights after meeting the child’s caretaker(s). The mediation session gave parents a chance to have a role in making a permanent plan for their child in a setting that acknowledged the parents’ love for their child, despite their inability to provide a stable home.[21]

Mediation also gave parents a chance to fully understand DYFS’ case against them and to explore the merits with their attorneys. Many of the Title 30 cases involve parents with long histories of incarceration, substance abuse and/or homelessness. In many instances, the child at issue was not the first child to have been removed by DYFS. 

The Essex Vicinage Mediation Program staff examined the outcomes of Title 30 cases referred to mediation between September 2001 and January 15, 2003. Of the 104 mediation sessions completed, 80 percent resulted in a complete or partial agreement.[*]

●  10 percent of cases that resulted in an agreement were resolved with a goal change to reunification with either the parent or a family member

●  57 percent of cases that resulted in an agreement included at least one parent surrendering their rights

○ 7 percent of these cases resulted in a surrender from both parents.[22]

In cases where parties failed to reach an agreement, participants still said the experience was valuable.  The frank discussion extinguished any doubts as to whether the parents understood the issues and consequences of their action or inaction.[23] 

Even in parental termination cases, mediation can produce positive results, as long as lawyers and mediators protect parents’ rights and the balance of power.   

 

Standards for Mediators

Quality mediators are the most critical component of any successful program. In order to participate in the project, ACNJ required its mediators to possess a family mediation certification, as required by the New Jersey Court Rules and then to complete a 40-hour training specifically focused on mediating child welfare cases. 

The first three days of training included representatives from the child welfare system to simulate the anticipated mediation process. ACNJ developed case scenarios based on New Jersey law and case practice that became the basis for the simulations. ACNJ then provided two days of training on legal issues, child development, permanency, and the impact of abuse and neglect on decision-making for children. This curriculum can form the basis for a statewide training standard. 

Child welfare cases are difficult and complex, often involving long-term parental drug addiction, serious child abuse and neglect, and parents with extensive criminal histories. The power of the State to intervene in the family to protect the child places the parties on unequal footing. Highly trained, skilled mediators are needed to maintain the balance.

ACNJ feels strongly that there must be an independent standard for mediators working with DYFS cases to ensure a high quality mediation program.

 

National Data Supports Mediation

ACNJ’s findings are similar to those described in the statistical program evaluations from other states. In March 2001, Dr. Nancy Thoennes from the Center for Policy Research in Denver, Colorado reported on her compiled data which included:

●  2,070 cases mediated in 10 jurisdictions in three states;

●  457 comparable cases that were not exposed to mediation ; and

 ●  500 surveys completed by parents and other family members after mediation.[24]

Based upon this data, Dr. Thoennes found the following:

●  Mediation is valued by parents and most professional participants.

●  Mediation is effective in producing settlements. Programs report settlement rates between 70 and 90 percent.

●  Mediated and non-mediated treatment or case plans are generally comparable. In some sites, mediated cases provide more services to children and more detailed agreements.

●  In many jurisdictions, mediated agreements bring greater compliance with the treatment plan compared to non-mediated plans.[25]

 

Mediation Saves Time and Money.

Mediation saves trial time. It reduces preparation time, the number of hearings and the need for additional expert reports.[26]

On the other hand, there are also costs associated with the program. If a mediation program is to be effective, it must be adequately staffed with competent mediators and support staff. Mediation requires a considerable expenditure of time from caseworkers and attorneys who already struggle with case overload and staff shortages.[27] Mediation does not “replace other elements in the system, such as adequate representation for parents and children and adequate services for families.”[28] 

Judges and court administrators are justified in asking whether mediation programs are cost effective. Program evaluations in other states examined the cost savings aspects. It appears from these evaluations that these programs do in fact save money.

Colorado’s Fourth Judicial District examined the amount of time spent on a typical case to determine the average costs. The Colorado cost avoidance figures were based on “conservative estimates of avoided time: trials, expert witnesses and evaluations, and trial preparation time for social services’ attorneys and caseworkers.”[29] The evaluation concluded “an average savings of about 13 percent for each case resolved in mediation relative to those proceeding to trial preparation.”[30] 

The program in Hamilton County, Ohio, did a similar analysis, making assumptions regarding the “typical” permanent custody case after magistrates, administrators at the child protective services agency, prosecutors, and public defenders provided “estimates of the amount of time ‘typically’ involved in trial preparation, trial, appeals and mediation.” Again, using conservative numbers, the study estimated a savings of $2,327 per case for every 100 cases, or cost savings of 39 percent per case.[31]

A study of the Dependency Mediation Programs in the San Francisco courts published in March 1998, “estimated savings of approximately $2,505 for each case that is successfully mediated.”[32]

The Essex Vicinage pilot was not able to produce an empirical cost assessment. Most of those involved in the pilot felt that mediation in some cases saved trial time.  In cases resolved by parental surrenders, both trials and possible appeals were avoided, which was arguably a significant cost savings.

 

Conclusion

Court reviews are often too short for parents to actively participate in the process. Moreover, parents and other family members may be intimidated and hesitate to speak openly about their concerns.  Mediation provides a chance for a non-adversarial conversation between parents and DYFS staff and between parents and caretakers. These conversations are impossible in the courtroom and rarely happen in the field.[33] 

The session, which lasts for an hour or more, forces all involved to sit down and calmly focus on the particular facts and issues in the case. It may be the only time when all parties are together, including parents, relatives, foster parents DYFS staff and lawyers.

Thoughtful discussions can improve the communication and working relationship of the parties and professionals involved in the case, thus improving the chances that children will be quickly placed into a permanent, loving and stable home. Mediation makes more information available, so all parties can make better, more informed decisions.[34]  Finally, mediation can free up judicial time and produce cost savings. 

Mediation is effective if the mediators are competent and the sessions are timely. 

Effective mediation is cost-effective. Referrals to mediation early in the litigation process should create more viable options for resolution and minimize the misunderstandings and confusion among the parties. Mediation is a valuable method of decision-making that engages participants in a positive and effective way. It provides opportunity for candid exchanges, a “reality check” for parents as well as for social workers who may be making unrealistic demands.[35]

Mediation improves the quality of case planning and has expedited decisions to assist children achieve permanent homes. Helpful individuals who are not in court – extended family members, family friends, and therapists, can present more personalized and creative solutions. In mediation, the parties reach a level of detail not available in court. Most important, “the families are part of the process, rather than part of the problem.”[36]

Mediation has the potential to become an important tool in DYFS placement cases, improving the communication and working relationships of all parties and professionals engaged in the process, and directly involving parents in shaping plans for their children and families.[37]

ACNJ strongly believes that child welfare mediation is a promising alternative to litigation, and remains committed to expanding its success statewide. ACNJ is also committed to ensuring that such expansion takes place under the high quality standard developed through this project. Without a commitment to this standard, mediation will not see the success experienced thus far.

ACNJ is grateful to The Schumann Fund for New Jersey and the Hite Foundation for funding the Child Welfare Mediation Project. Recognition must be given to all entities that worked collaboratively on this project: the Superior Court of New Jersey, Essex Vicinage, the Division of Youth and Family Services, the Office of the Attorney General, the Office of the Public Defender, and the Administrative Office of the Courts Court Improvement Project which provided the funding for the Court mediator. A special thank you goes to the mediators for their time and commitment to this project. The pilot far exceeded our initial expectations. 

 

Author: Mary E. Coogan, Esq., Assistant Director of ACNJ, with the assistance of the project mediators.  For other issues of the Children’s Legal Bulletin, visit our website at www.kidlaw.org