Using Child Welfare Mediation to Expedite Permanency

With the recent changes in child welfare laws and time frames, more and more state and county agencies are searching for alternatives to the traditional lengthy, adversarial proceedings to terminate parental rights. Beginning in 1991, Teamwork for Children, through a federal grant to the Oregon State Office of Services to Children and Families (OSOSCF), developed and has been using permanency mediation to assist birth parents and caseworkers to create permanent plans for children and, when appropriate, to arrange post-adoption communication agreements with adoptive families. This technique shows great promise in expediting permanency for children, minimizing emotional suffering to children and their birth and adoptive parents, and reducing the cost of lengthy legal proceedings.

Goals of Child Welfare Mediation

Mediation differs from the current system in the following critical ways: it is cooperative and non-coercive rather than adversarial and coercive; participation is voluntary versus involuntary; and decisions are made by mutual agreement rather than by a court process. The three major goals of Teamwork for Children's permanency mediation model are to: (1) empower parents to make cooperative, permanent plans for their children; (2) reduce the necessity for termination of parental rights litigation and the related expenditure of state dollars; and (3) reduce the time children spend in foster care awaiting permanent homes.

Who is eligible for mediation?

Mediators work with parents of abused or neglected children and potential adoptive or foster families. Families, who are referred by child welfare case workers, attorneys, or the courts, must meet the following criteria:

The child is in foster care with a plan for termination of parental rights, and all efforts at reunification have been exhausted.
The birth parent is willing to mediate.
The state permanency consultant determines that the case is appropriate and provides guidelines for any ongoing contact with the birth parent.
In cases that lead to adoption, the prospective adoptive family is willing to mediate.
How does mediation work?
The Teamwork for Children model includes two distinct phases of voluntary mediation by trained mediators. The six mediators employed by the project all had worked with high-risk families for two or more years and had experience in mediation, adoption, court proceedings and cultural competency. They also received three days of specialized training in child welfare and adoption mediation along with state agency staff involved with the program. To ensure their impartiality and neutrality, they were independent contractors with OSOSCF, the state agency, and they were supervised by an independent, experienced child welfare mediator.

Phase One of the process involves mediation between the birth parent(s) and the agency. The mediator first meets with the caseworker to establish the range of post-adoption communication options available to the particular birth parent, based on the child's needs, and then gets permission from the parent's attorney to meet with the parent. The mediator then uses Parent Empowerment Process workbooks and exercises to help the birth parents think about their children's needs and their ability to meet those needs and to parent in general, and to help them make decisions in the best interests of their child(ren). If the permanent plan is for the child to return home, the mediation process ends. However, if, as in most cases, the parents decide that having someone else raise their child is in the child's and their best interest, the mediator helps the parent(s) develop a tentative adoption plan. Once this plan is agreed upon by the parent(s) and the agency, mediation moves into the second phase.

In Phase Two, the mediator meets with the foster or other potential adoptive family to discuss the child's needs and goals, and to discuss the new family's willingness and ability to work cooperatively with the birth parent(s). The mediator then facilitates meetings between the two families to help them reach an agreement clarifying the role of birth parents and the level of contact they will have with the child. These meetings result in a written post-adoption communication agreement that specifies the level of ongoing communication, states the minimum amount of contact between the two families, and provides details about the boundaries and safeguards for both. Following the birth parent's voluntarily relinquishment, the birth parents, child(ren) and new adoptive parents have a "goodbye meeting" that allows everyone involved to move on.

The entire mediation process takes approximately 25 to 30 hours per parent/child dyad over several months. Mediators typically spend a large portion of this time preparing foster and adoptive parents for cooperation with birth families.

Benefits and outcomes of child welfare mediation

Cooperative mediation through an independent agency expedites permanency for children while involving families in a caring, dignified manner. It offers birth parents involvement, choices and respect that they lose if parental rights are involuntarily terminated. Using traditional proceedings, parents often contest efforts to terminate their parental rights and, as a result, children often wait two to five years in foster care for the court process to free them for adoption (Etter & Roberts, in press). In contrast, most of the families served through Teamwork for Children's mediation model choose adoption as the permanent plan for their children. In these cases, children have been freed for adoption an average of 3.7 months after referral to the program, and placed in adoptive homes within an average of five months after referral (Etter & Roberts, in press).

Of the first 300 families served by Teamwork since 1991, 87% reached a cooperative written agreement by the end of Phase One and avoided contested trials; 90% of those cases resulted in cooperative adoptions (Etter & Roberts, in press). In the 13% of unresolved cases, either parents withdrew from voluntary mediation or the mediation was terminated by an attorney or the agency.

When cases result in a cooperative agreement, mediation not only reduces the trauma for children, it preserves the integrity and self-esteem of their birth parents. It can also result in monetary savings due to fewer foster care days and fewer lengthy, expensive trials. The average mediation case, for instance, costs $3,500; whereas, an average contested trial to terminate parental rights costs $22,000 not including foster care, staff time, or overhead (Etter & Roberts, in press).

Challenges

Despite the great benefits of this model, certain obstacles can make mediation challenging. For example, a parent's ability to move through the mediation process may be impeded by mental or emotional problems, as well as learning or developmental disabilities. Unsupportive family and friends also can slow down the parent's decision making. In addition, mediation requires caseworkers and attorneys to accept a new way of doing business.

Conclusion

Cooperative mediation helps establish cooperation and build relationships between birth and adoptive parents, rather than focusing on negotiating a settlement between adversaries. Ultimately, this helps expedite permanency for children, reducing the monetary costs of foster care and court procedures and the emotional trauma to children and families. Currently, more than a dozen states* are using or considering the use of mediation in custody cases (Rovella, 1998). More states are likely to follow suit as they realize the benefits of this model.

* Arizona, California, Connecticut, Iowa, Idaho, Indiana, Massachusetts, Minnesota, Nebraska, New Mexico, New York, Oregon, Texas, Virginia and Washington.

Many thanks to Jeanne Etter and the staff at Teamwork for Children for providing the information for this article. For more information about Oregon's Cooperative Mediation Project or to order copies of the Parent Empowerment Process Workbooks, please call Teamwork for Children at (541) 342-2692.

References

Etter, J. & Roberts, D. (in press).
Child welfare mediation as a permanency tool.
Rovella, D.E. (1998).
Trying mediation to speed child custody battles. The National Law Journal, October 26, 1998, vol. 21(9), pp. A1 & A12.

© © 2003 National Abandoned Infants Assistance Resource Center