Child Protection Mediation: An Opportunity for Youth Involvement

Judge EdwardsJudge Leonard Edwards (ret.), Judge-in-Residence, Center for Families, Children and the Courts, California Administrative Office of the Courts

Summary: Judge Edwards explains the importance of child protection mediation and of involving youth in the decisions affecting their dependency court case.

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Child protection mediation is a court-based service that brings together all of the parties in a juvenile dependency proceeding in a confidential setting with a trained mediator to resolve difficult issues that might have to be litigated in the juvenile court. Child protection proceedings are complex, involving numerous parties and attorneys, multiple hearings and unique legal issues. The parties include the parents, the child and the social worker. Each of these parties may be represented by an attorney; the child will have a guardian ad litem, and possibly an attorney as well. Other interested people may participate in the proceedings, including relatives, foster parents or caretakers, legal guardians, step-parents, boyfriends or girlfriends, de facto (psychological) parents, the child’s court appointed special advocate (CASA) volunteer, service providers, and representatives from any Indian tribes that may be involved.

With all of these interested persons, there may not be sufficient time in court to hear from everyone. Moreover, if there is a trial on any of the issues, the adversarial process, court procedures, and evidentiary rules will further limit the ability of interested persons to give their views.

These are some of the reasons why many juvenile courts have turned to mediation and other forms of alternative dispute resolution as an effective process to resolve the sensitive issues that arise in child protection proceedings. Unlike a contested hearing in court, the mediation process offers all parties the opportunity to say what is on their minds, air their complaints, and grieve the losses that they have been experiencing. Mediation gives the family and the attorneys a confidential forum in which they can work together to identify and solve problems without pressure from the court process or the difficulties presented by evidentiary rules. Mediation offers a context in which to work out the details of a child-safety plan and thereby tailor an effective resolution addressing the family’s unique needs. It enables everyone to complete the process with a sense of accomplishment—a feeling that their combined efforts have produced something of value for the child and family as well as a stake in the outcome that they had a hand in creating.

Mediation also offers significant opportunities for the verbal child to be heard. Unlike formal court proceedings that can intimidate family members—particularly the child—mediation offers an opportunity to be heard in a comfortable, confidential setting. The mediator is ideally situated to create an environment—speaking to the child with others or to the child alone—to draw out the child and facilitate discussion around the issues that matter most to him or her.

There are several reasons for mediation’s growing popularity, but the principal one is that it works. Mediation produces agreements that are acceptable to all parties, do not sacrifice child safety, and are more detailed and long-lasting than court orders after contested hearings.[1]

Mediation’s success is partly due to an acknowledgment that the legal process is frequently ill-suited to address the family problems that are the essence of child protection cases. The Anglo-American legal system was founded on the adversarial process, a process that seeks truth from the presentation to the judge of opposing positions by contesting parties. The adversarial process provides an opportunity for each party to present his or her position and to attack the opposing party’s position. Using cross-examination, attorneys ask witnesses questions to demonstrate the weaknesses in their testimony. Cross-examination can be a brutal and terrifying experience, especially for someone inexperienced in the law. When the ultimate issues that the court will decide are whether allegations of abuse or neglect are true, whether parents have been performing well in their efforts to reunify with their child, and whether parental rights to a child should be terminated, the court process and cross examination, in particular, can be a nightmare for family members.

It is true that some judges and attorneys have resisted mediation, believing that they can resolve all issues using the court process. However, those jurisdictions that have implemented mediation confirm that it provides a superior process for the resolution of child protection issues.[2] Mediation results are impressive. In Santa Clara County, California over the past 20 years, 80% of cases referred to mediation result in a resolution, 12% result in a partial resolution, and 8% result in no resolution. Mediation has also changed the court culture. It is no exaggeration that where mediation is a part of the local culture, attorneys frequently come to court and request mediation rather than a trial.

Conclusion

Dramatic changes in child protection laws have taken place in the past 35 years. America’s juvenile and family courts now oversee and monitor child protection cases from beginning to end. There are more court hearings and more legal issues to be resolved. These changes have led to the growth of large and complex child protection court systems with more judges, staff, attorneys and guardians ad litem. Child protection and social service agencies have had to adjust to their increased involvement in the court system.

It has been clear since the passage of the initial federal law in 1980 (The Adoption Assistance and Child Welfare Act) that traditional court processes are not ideal for the resolution of family problems. The adversarial process does not provide an environment conducive to truth finding or to the effective resolution of cases. Moreover, the process is often perceived as hostile and uncaring by the parties and leads them to believe that they are not being heard or understood by decision makers. Children, in particular, can be ignored in the process and often are intimidated by crowded courtrooms filled with adults.

Child protection mediation and other forms of alternative dispute resolution can provide families, children and professionals an opportunity to discuss difficult, emotion-laden issues in a protected setting with professional assistance. In mediation, family members can express their concerns in a manner unavailable in the court process. They can then join with the professionals to craft an agreement that will reflect the input of all parties. 


[1] Edwards, L., “Mediation in Child Protection Cases,”Journal of the Center for Families, Children & the Courts, Vol. 5, 2004, pp. 57-70. 

[2] Edwards, L., “Mediation in Juvenile Dependency Court: Multiple Perspectives,” Juvenile and Family Court Journal, Vol. 53, No. 4, Fall, 2002, at pp 49-66.   For a free informational dvd concerning the implementation of child protection mediation and the resistance that some attorneys and judges had, contact the author.

Author biography:

Judge Leonard Edwards (ret.) is a judge-in-residence with the California Administrative Office of the Courts. In that capacity he provides technical assistance to the courts of California, particularly in areas involving children and families. Judge Edwards served for 26 years as a Superior Court Judge in Santa Clara County, CA. He sat as a domestic relations judge and as a juvenile court judge.

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