DEPENDENCY COURT MEDIATION The Roles of the Participants

Steve Baron

This am‘cle discusses the roles and levels ofparticipation of the various participants in juvenile and dependency court mediation, and also examines potential gains and losses associated with partici- pation for family members and the social workel:

The issues subject to mediation and the individuals participating will depend on the mediation model selected by each court jurisdiction. Some programs include mediation of all issues relative to jurisdiction and disposition, including conflicts between the participants that serve as impasses to reaching agreement. Other programs only mediate a more limited range of specific issues and may intentionally stay away from dealing with conflict between family members or other participants. Thoennes and Pearson’s (1995a) evaluation of five Califomia dependency courts noted the following:

Some programs officially excluded attorneys from mediation. This approach works if the legal community has trust in the mediator and mediation process, and if the attorneys have other means of providing input and reviewing outcomes. Other programs chose to include attorneys in the mediation session. The attorneys in the case, whether for parents, children or the child protective services agency, need not be present during the entire session. No matter which approach a mediation program elects, it is critical to ensure that the legal community is committed to the process and has an opportunity to provide input, and to advise and discuss proposals with their clients.

At each of the participating sites. we heard strong support for the fact that each program stresses parental participation. Mediation provides a valuable opportu- nity to inform parents, clarify questions and issues, and elicit parental “buy in” to the treatment plan. The evaluations suggest when parents are involved, mediation has the ability to improve parental compliance with the treatment plan, and reduce later disputes over the plan. (pp. 8-9)

That same research confirmed that mediation was generally preferred as a dispute resolution procedure over the courtroom adversarial alternative.

Saunders, Baker-Jackson, Flicker, and McIsaac (1991). in an article on one Califomia county’s mediation model, summarized the major mediation tasks of the attorneys representing the child, parents, and agency: Preparing their clients for mediation; representing their clients’ interests; assisting in information development and in the

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identification of issues and potential solutions; promoting dialogue, negotiation, and participation in the case planning process; assisting in overseeing interim plans and ensuring that the procedure moved forward in a timely and effective manner; and reviewing case plans to protect the long-term interests of the child and/or parents. Most of these tasks also apply to any court-appointed child advocate involved in the case.

Attorneys, when permitted to participate in mediation, have even more fundamental responsibilities. They should be thoroughly familiar with the case histories and the positions and interests of their clients, whether they be children, parents, social workers, or other interested parties. They should assess their clients’ abilities to effectively articulate their positions and interests. They should encourage their clients, with the appropriate amount of guidance and advice, to fully express themselves on the issues being discussed, while also encouraging them to be prepared to listen to and consider the feedback being offered by the other participants. Attorneys need to be particularly careful to clarify, assert, or reinforce their clients’ true positions, and more importantly their genuine interests, when the clients are less than effective in articulating those positions/ interests themselves. They need to also reinforce with their clients that the ultimate goal of mediation is to come up with a plan, relevant to the referred issues, which all can agree is probably the safest and best for the children.

Particular questions have been asked about the roles of each of the key participants in the case-the parents, child, social worker, and attorneys. How and when should the attorney and the client participate and how should that participation vary according to the issues in dispute (petition, treatment, case goals)? What is the particular role of the client’s attorney? What do their clients have to gain or lose from mediation?

Attorney’s for each of the clients typically find that their involvement in the mediation session varies depending on the issues being presented, the stage of the mediation process, and their assessment of their clients’ ability to adequately articulate and represent their interests in mediation. The degree to which they feel the need to participate is also, in actuality, related to the credibility and trust they assign to the mediation process, and more accurately, the mediators. This credibility and trust is a function of a number of factors, including the mediators’ skill and experience level as reflected by their knowl- edge of the child protective and court systems and issues related to child abuse and neglect, and their demonstrated ability to conduct the mediation process in an efficient and effective manner; familiarity with the case history; demonstrated fairness and respect to all sides; and their demonstrated motivation to preserve the safety and best interests of the child while also seeking to identify and mobilize family strengths.

Attorneys are usually very involved in the early stage of mediation as the legal status of the case is reviewed; issues, positions, and interests are identified, the most current information is exchanged, and some brainstorming occurs. They are usually less in- volved, excuse themselves, or are excused in the middle stage during which the mediator works with the family members, social worker, and other participants. It is important, however, that the attorneys remain available to their clients and the mediator for consultation as necessary during this period. They are again involved at the final stage of mediation to review information and ideas generated by the earlier stages, construct/

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reviewklarify and finalize agreements, and appropriately record the agreement according to local protocol. Because of time constraints and other responsibilities, most attorneys prefer to have their direct involvement limited to the beginning and ending stages of mediation, and believe that they can adequately advocate for their clients by doing so.

The attorneys are most involved when the issues are legal in nature and related to jurisdiction, wording of petitions, and so on. They are also necessarily involved when the impasse relates to a personal or personality conflict between the attorneys, a subject which, though seldom discussed in the literature, can nevertheless serve to sabotage progress in mediation unless appropriately addressed. Attorneys are also usually involved when significant dispositional issues such as placement, visitation, and reunification plan requirements are in dispute. Here, however, they are typically more comfortable in allowing the mediator to process such issues with the other participants, knowing they can have input as needed, review any potential agreements, and advise their clients accordingly. Attorneys tend to be least involved when the issues being mediated relate to conflict between the participants or other interventions designed to resolve impasses standing in the way of agreement (i.e., the need for clients to “tell their story,” to grieve a loss, to express anger, etc.).

Hugh McIsaac (1991). in a report to the California Judiciary Committee, wrote,

[Mediation] permits the attorneys to represent their client’s interest and not necessarily their anger or their positions and it also helps the attorney in under- standing the true dynamics in these very complex disputes. (p. 2)

It also allows the parties, through their attorneys, to review the strength of the case facts and possible defenses in an environment away from thecourtroom posturing. This may influence how they evaluate the case for settlement recommendations and guide in the decision making for the formulation of case plans. (p. 3)

Mediation permits the parent to examine potential solutions and also the conse- quences of their behavior in a context that does not blame but rather looks for positive answers in the future. Further, some very complex situations are confusing to the family, and they are seldom understood because of time limitations of the attorney-client relationship . . .The mediation environment often allows the par- ents to face the reality of their abusive behavior with a view toward correction.

Thoennes and Pearson (1995b), in an evaluation of one California county, cited the comment of an attorney who represented parents and children in describing the candid atmosphere of mediation as being particularly advantageous:

Once a decision is made in court you are really stuck with it and no one has any real control over the results. So, you are very careful about what you volunteer, In mediation you speak up because you don’t have to accept any agreement that’s offered. . . In mediation you don’t feel you have to be just strictly an advocate for a parent. You don’t only have to represent their point of view even if you think it’s not in the child‘s best interest. (p, 21)

(PP. 4-51

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THE CHILD AND THE CHILD’S ATTORNEY

Attorneys experienced in representing children suggest that it may generally be appropriate for children to participate when certain conditions are met or are present. First and most fundamentally, the age and developmental status of the child must be such that the child is capable of understanding the basic nature of the mediation process. The child must also be capable of expressing his or her wants and wishes or of providing input that may have some bearing on the issues being discussed. Beyond that, other reasons for having he child participate include (a) the child’s desire to participate, (b) the disputed issue has direct relevance to the child (i.e., removal or return, placement, visitation), or (c) the child otherwise has something to gain by participating (i.e., a sense of inclusion, validation, greater understanding, etc.).

When children participate, they are generally oriented to the process at the very beginning of mediation, are most involved in the middle stage when substantive issues are discussed, and are sometimes again involved at the end when agreements affecting them are reviewed or confirmed. The manner in which children participate will vary depending on the child‘s age, developmental and emotional status, the case dynamics, the child‘s wishes, and the function of the child’s participation in the mediation. In one case it may be more appropriate for the mediator to caucus alone with the child and relay the child‘s expressed feelings and needs back to the participants. In another case, it may be appropriate for the child and parent(s) to meet together to discuss the issue of visitation or for the child and foster parent to discuss the conflict that resulted in a placement failure.

The potential gains for a child who is appropriately participating in mediation include an opportunity to be heard and validated; a sense of inclusion and participation; an appropriate though limited sense of empowerment and control over important decisions affecting his or her life; an opportunity to gain greater understanding of issues affecting his or her life and family; and the opportunity to directly experience a healthy, construc- tive, participatory, dignified, and nonviolent problem-solving method characterized by mutually respectful communication.

The potential losses for a child, which would usually be the result of an improperly stmctured and inappropriately conducted mediation, would include a sense of responsi- bility and feelings of guilt for the abuse, neglect, or whatever problems or pain the family or other caretakers are experiencing; enmeshment or reenmeshment in the family or caretaker conflict; and an increased sense of powerlessness or hopelessness if problems are not ameliorated or are exacerbated, or if the child’s expressed wishes are not granted. Related to these potential problems, attorneys for children and mediators emphasize that it must be made very clear to children in preparing them for mediation that whereas their participation, feelings, and wishes are valued, they are not responsible for the ultimate decision making, and that the responsibility for the outcome lies with the adults and ultimately the court. Attorneys representing children agree that, when permitted, the child’s attorney should always have some degree of participation in mediation, and that the primary role is, first and foremost, to advocate for and ensure a resolution of the issues that are consistent with preserving the safety and best interest of the child. Second, if the child is of an age, developmental status, and adjustment level such that the child’s

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expressed requests seem reasonably consistent with his or her safety and best interest, the attorney typically advocates for those requests. Third, the attorney at least presents the child‘s expressed wishes regardless of his or her considered appropriateness. In this last case, the degree to which those requests will be advocated will depend on the extent to which those wishes appear to be reasonably consistent with the child’s safety and best interest; the child’s age, developmental, and adjustment status, with the wishes of adolescents typically being given more weight as the ability to effectively control their behavior in any other direction is usually limited; and the philosophy of the attorney’s office and the attorney with respect to whether it is to represent the child’s expressed wishesortheattorney’sviewofwhatisinthebestinterestofthechild.Legalrequirements or policy may preclude the child’s attorney from advocating for any position that is not found by that attorney to be consistent with preserving the child’s safety, regardless of the expressed wishes of the child or recommendations of the child protective agency.

THE SOCIAL WORKER AND AGENCY ATTORNEY

It is sometimes asked whether it is necessary for the attorney representing the child protective agency to always attend the mediation (where the mediation model allows for attorney participation), since the social worker or social worker’s supervisor is already participating. The answer is generally yes. They believe that they serve a number of important functions beyond those already discussed, including the following: providing legal advice to the social worker if needed; helping to support, defend, and protect the social worker from “bashing” by the family members and their attorneys; insuring that the mediator is privy to all the pertinent documentation relevant to the mediation, such as collateral psychological reports or letters from the treating therapists; helping to ensure that the mediation does not expand to incorporate issues not referred by the court; and helping to limit the legal maneuvering that sometimes occurs in mediation while encouraging the participants to allow the mediator to control the process. especially in the area of working with the family and social worker. Additionally, in some jurisdictions it is the responsibility of the agency attorney to present the mediated plan to the court and prepare the written order after hearing.

Most agency attorneys believe that the social worker has a great deal to gain from the mediation process. As one such attorney has put it,

It affords the social worker a mechanism for resolving the dispute apart from the adversary process . . . As a practical matter, most social workers are far more comfortable with the collaborative nature of the mediation process than with the more hostile nature of the adversarial court process . . . mediation is usually successful in resolving the issue in dispute . . . [Mediation] affords the social worker a much better tool for engaging the family in the helping process than the blunt coerciveness of the adversary process . . . [and] creates a greater likelihood that the parents will cooperate with the social worker and the agency and more actively participate in services after the dispute is resolved.

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The same attorney also pointed out, however, that social workers may have something to lose

if the social worker has not been handling the case in accordance with professional standards. I have seen mediations where it became clear that it was the social worker and not the parent who was the obstacle to a reasonable resolution of the dispute. (L. M. Clark, Santa Clara County, Office of the County Counsel, personal communication, 1996)

During the course of mediation social workers are often held accountable for the quality of their investigations, casework, conclusions, and recommendations. This can certainly be an uncomfortable experience for social workers. Common experience is that when social workers do thorough and professional work, know their cases well, are adequately prepared, and are more invested in protecting the safety and best interest of the child than in defending or vindicating any particular position, they typically view mediation as being a constructive and beneficial, though sometimes uncomfortable, process. When social workers tend to be authoritarian instead of authoritative, or when their work has been less than professional or thorough and is, therefore, more vulnerable to challenge, or when they have difficulty appropriately expressing or asserting them- selves, they can experience mediation as being intimidating, undermining of their authority, and very uncomfortable. Even when social workers do thorough and profes- sional work, on the conclusion of mediation they may sometimes feel like they have been attacked, second-guessed, undermined, discounted, or believe that the other participants are being naive in their view of the family or what is in the best interest of the child.

A particular question arises with respect to whether line social workers, supervisors, or specialized staff should represent the agency in mediation. Sometimes this is more related to logistical realities than philosophical differences in that in some large counties with relatively limited resources it may not be feasible for the lineworker to be physically present for the mediation. In those counties, the court social worker or the supervisor will participate in mediation, often with the lineworker available by phone for consultation.

Aside from this consideration, there is a difference of opinion on this issue. Some jurisdictions believe that it is far more appropriate for the lineworker to be involved for a number of reasons: Mediations are often fact intensive, and the lineworker usually knows the case and the family members the best; sometimes the issues in dispute are related to impasses that directly involve the lineworker or the lineworker’s relationship with the child or family members, and the potential for a true resolution lies in the participation of that worker; it empowers the lineworker and allows her or him to have more of a direct impact in the case resolution and to personally experience the potential gains of participation discussed above, and in doing so experience more personal and professional satisfaction. Many would argue that what occurs in mediation is more in line with what social workers are trained to do and “true social work” than some other aspects of their duties. Others believe that the lineworker’s presence and participation at the mediation may exacerbate rather than ameliorate the conflict. This position holds that lineworkers may be too invested in defending or advocating for their positions, andor that any problematic relationship that exists between the family and lineworker may

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interfere with reaching a resolution. Additionally, in some agencies the lineworker may not have the authority to effectively consent to an agreement. These jurisdictions are more likely to have social work supervisors or other specialists participate in the mediations, often with access to the lineworker as needed.

The social worker or worker surrogate’s participation in mediation tends to be important at all stages of the process. The level of involvement will be the greatest the more the issue is directly related to (a) the agency’s view of the safety or best interests of the child, (b) the findings or recommendations of the worker, (c) a conflict that exists between the workedagency and the child or family, (d) services to be provided or coordinated by the agency, and (e) when the social worker’s/agency’s consent is sought on agreement reached by the other participants. Participation will be the least when the problem relates to purely legal issues or conflicts between family members or attorneys. As an agency attorney suggests,

If the dispute is between the family and the social worker, then the social worker must be prepared to take an active part in the mediation process, particularly in terms of clearly and objectively presenting and justifying the social worker’s recommendation. If the dispute is between family members, i.e. mother objects to placement of the maternal aunt and instead insists on placement with maternal grandmother (both of whom are adequate caretakers), then the social worker’s role will be more to provide support and assistance than to justify a recommenda- tion. (L. M. Clark, personal communication, 1996)

THE PARENTS AND THEIR ATTORNEYS

Attorneys representing parents generally believe that they should attend mediation whenever the mediation model allows for attorney participation. The reasons include and go beyond those offered by attorneys for children and social workers.

Mediation in most jurisdictions is a confidential process with the exception of the duty of mandated reporters to report new allegations of child abuse or neglect, or threats of violence to self or others. The content of mediation is not otherwise subject to discovery in such jurisdictions. Therefore, in those cases in which parents are the subject of a current criminal prosecution, they can feel safe and comfortable in openly discussing issues related to abuse and neglect without fear that such information will be used against them in court. Nevertheless, attorneys are usually cautious and apprehensive about parents offering information in mediation that clearly implicates them in criminal acts currently being investigated or prosecuted in criminal court, and will guard against them offering such information. Most cases of child abuse and neglect in the juvenile court system, however, do not involve criminal prosecution, and the above concerns do not apply.

Attorneys for parents in mediation are sometimes concerned to a lesser degree that their clients may disclose information that is disadvantageous to them or provide material that will be used against them by the child‘s attorney or the social worker. In practice, this has not been a significant factor in mediation. When such information of concern is disclosed, it simply becomes appropriate and important material for the mediation

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process in developing the best possible plan for the child and family. Attorneys for parents find that parents have far more to gain than lose by openly and frankly participating in mediation for many of the reasons discussed later in this section.

When attorneys are excluded from participation in mediation, parents are obviously heavily involved in all stages of the process. When attorneys participate, parents are typically oriented to the mediation process at the very beginning of mediation; available for consultation during the early stage of mediation when the mediator is working with the social worker and attorneys to clarify the issues; most involved in the middle stage of mediation when substantive issues are processed; and participate again at the end of mediation when agreements are reviewed, confirmed, clarified, and recorded. The parents tend to be most involved when the conflictdissues being discussed have direct impact on them, their requests, or their children, and are least involved when technical legal issues or disputes involving participants other than themselves are being processed.

Thoennes (1991), in an article related to an early evaluation of dependency mediation in two California counties and the state of Connecticut, found that parents clearly benefited by participating in mediation. She found that their concerns and interests were more likely to be fully heard and considered in a mediation context and atmosphere designed to ensure that all parties were treated with respect and dignity:

These may seem to be obvious goals of any case-processing approach. However, paying special attention to how the parent is treated is necessitated by the strong emotions elicited by child abuse and neglect, the stigma associated with a substantiated child maltreatment report, the discrepancies in communication skills and system knowledge between parents and the professionals in the case, and the intimidation created by having a child removed from one’s home. (p. 252)

Thoennes also found that parents benefited by the nature of the mediation process and the mediators’ knowledge and familiarity with the system and its participants:

In a system where attorneys admit they often “don’t know who their clients are or have just been assigned to take over for someone else,” mediation also ensures that cases get some undivided attention and that everyone’s rights are protected. Parents’ attorneys also acknowledge that parents get a lot of practical information in mediation, which is important since attorneys do not always take the time to answer questions and ensure that their client fully understands the situation. (p. 21)

Attorneys assigned to represent the parents are often juggling a great many cases, often are new to the field of child maltreatment, and may only be doing this work on a part-time basis. The mediator’s knowledge of the system, and often detailed familiarity with individual workers and attorneys, can work to the family’s benefit in such circumstances. Mediators say they will spend extra time explaining the situation and options to family members if they have reasons to believe that the attorneys are not spending the time necessary to really help the parents to understand.

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Several mediators reported that they will try to help the parents identify reasonable requests to make of the CPS [child protection service] agency if they know that the caseworker assigned to the family does a poor job of monitoring, setting goals, or living up to promises. . . . Indeed, one mediator noted that the mediator may be listened to by parents who “distrust caseworkers on general principle, and don’t trust lawyers based on what they’ve seen on television.”

This last comment illustrates why parents may also be more open to and benefit from the input of knowledgeable mediators regarding the particular needs of their children-the mediators are viewed by the parents as being neutral, unbiased, and less threatening.

Thoennes and Pearson (1995b) noted the following in an evaluation of one California county:

(pp. 251-252)

One attorney notes that the mediators can produce reality testing for social workers and parents. For parents who insist on unreasonable hardline positions against the advice of their attorneys, the input of mediators can be most helpful. One defense attorney notes: ‘There’s really no other place where someone can tell the case- worker ‘you need to talk to the parents’ or tell the parents ‘you need to shape up.’ The mediators have a clear grasp of the dynamics among the parties and they are equally demanding on all sides.”

Another attorney notes that mediation is far more candid and revealing than other settlement efforts. . . .“Once mediation starts the caseworker starts to talk and it is really out of the hands of county counsel. And parents love mediation. They are not intimidated by it. They get to tell their story.”

This attorney rejects the idea that such candid exchanges would make attorneys unwilling to have their clients participate in mediation. ‘They have nothing to lose. If it doesn’t happen in mediation, it won’t happen anywhere. Mediation is the best

Research conducted by Thoennes and Pearson on dependency mediation in five California counties confirmed that parents had a chance to talk about the issues important to them, that parents felt that what they had to say was listened to and understood, and that mediation clarified for parents what they needed to do to no longer require juvenile court intervention. Somewhat fewer parents experienced that mediation helped them clarify what the caseworker would do to meet the goals of the treatment plan. Parents who were able to compare their mediation experience with prior court appearances and hearings found mediation preferable.

Summarizing, parents tend to experience many of the same potential gains previously cited for a participating child a sense of inclusion, participation, validation, and empow- erment; a greater understanding of the system and of the issues affecting the family, including the needs of the child; and the experience of having taken part in a constructive and mutually respectful dispute resolution process. Additionally, mediation usually results in full resolution of the issues referred and accomplishes this in a manner preferred by parents over the courtroom adversarial procedure. It would be reasonable to also

shot.” (pp. 20-21)

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expect that participation in such a process will result in a decreased sense of alienation from the child protection and court systems commonly experienced by many parents.

OTHER PARTICIPANTS

Court-appointed child advocates should also participate in mediations. Their interest lies in presenting information, opinions, and recommendations that are based on their personal experiences and involvement with the child, family, and caretakers. They advocate for resolutions they believe to be consistent with preserving the safety and best interest of children. Their views may coincide with those of the child's attorney and/or the social worker, or they may have differing and independent positions. Their involve- ment tends to be the most significant when dispositional issues directly affecting the child are being discussed and when the issues involve services or functions to be performed by the advocate. They may be involved to various degrees during all stages of the mediation process.

Other family members and interested parties, foster parents, guardians, placement staff members, psychologists, and therapists may also participate in mediation depending on their interest in the referred issues and the relevance of their input. They should be oriented to the mediation process at the very beginning of mediation. When and to what extent they are involved in the mediation will depend on the role they have to play. For instance, a psychologist's or therapist's input may be sought in the early stage of mediation when the most current information is being exchanged, or in the middle stage if there is a dispute between the psychologistherapist and other participants regarding the appropriateness of his or her dispositional recommendation. Some participants may only be interested in providing information or opinions and then leaving, whereas others may want to play a more active role in the case disposition and will have some degree of participation in the middle and late stages of mediation.

Experience strongly suggests that the wider the net cast with regard to involving family members and other individuals who have a potentially supportive or significant interest in the case, the greater.the likelihood of arriving at the safest, most realistic and resourceful. and best available plan for the child.

REFERENCES

Mclsaac. H. (1991). Mediation in juvenile dependency court: Assembly judiciary committee hear- ings (Report to the California State Assembly). Los Angeles: Family Court Services.

Saunders, C., Baker-Jackson, M., Flicker, B., Br Mclsaac. H. (1991). Mediation in the Los Angeles County Superior Court Juvenile Dependency Court. Family and Conciliation Courts Review,

Thoennes, N. (1991). Mediation and the dependency court. Fm'ly andConciliation Courts Review, 29,259-269.

29,246-258.

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Thmnnes, N.. & Pearson, J. (1995a). Mediation infive California dependency courts: A cross-site comparison (Report to the CaIifornia State legislature). Denver, CO: Center for Policy Research.

. (199%). Mediation in the Santa Clara County dependency court (Report to the California State legislature). Denver. CO Center for Policy Research.

Steve Baron, a licensed marriage, family, and child counseloc is assistant director of family court services in Santa Clara County and supervises the juvenile court’s &pendency mediation program.