Any case can be referred to mediation at any stage of the proceedings from the initial hearing up to and including the establishment of a permanent plan including termination of parental rights. No cases are excluded in principle from the mediation process. Mediation is based on a very simple premise: a confidential discussion among the parties may lead to positive results.
“It can’t do any harm to talk about the case, and it may produce some positive results.”
In practice, however, the social workers, professionals or courts do not refer all cases to mediation—only those where difficult issues have been identified and the case may end up in trial.
We practices confidential mediation. Except for the reporting of new allegations of child abuse or neglect, all communications in the mediation session are confidential and inadmissible in any subsequent court proceedings. Mediators conduct each mediation. The mediators explain to all parties the mediation process and its goal, which is to come up with a plan that all the parties, attorneys, social worker, agree on ensuring the child is safe. In this sense, the mediation process is goal oriented and not a process seeking agreement for its own sake.
If the child can make an informed choice, he or she has the right to participate in the mediation process. Otherwise, the attorney–guardian ad litem appears on the child’s behalf. The mediation process is also safe and fair for all participants. Several years ago, We met with leaders from the domestic violence advocacy community to discuss protocols and procedures that would enable victims of domestic violence or intimidation to participate in mediation safely. Local protocols were developed and have now been used for more than 10 years. Child welfare mediation operates in a manner consistent with the legislation and guidelines.
The mediation process consists of four stages: (1) orientation to the process, (2) issue development, (3) problem solving, and (4) agreement/disagreement and closure. Although the mediators expect to hear out each participant fully, when solutions and agreements are being addressed, they consistently ask each party whether the agreement will serve the best interest of the children involved.
There are several different models of mediation across the country. The key elements that distinguish these models are the participants in the process, the types of cases that qualify for mediation, the aspects of the mediation process that may be disclosed to non-participants, the ability of mediators to make recommendations to the juvenile court, the number of participating mediators, and the mediators’ degree of neutrality, including their ability to set goals for the participants. Other factors affecting the quality of a particular mediation program include the mediators’ training and experience, the length of each mediation session, the number of sessions before the case returns to court, local practice protocols that ensure a fair and safe mediation process (particularly for participants involved in domestic violence), the required participants, and the time parties must wait before participating in mediation.