child protection mediation & advocacy nacc 20101
TRANSCRIPT
NACC 2010 1
Child Protection Mediation & Advocacy
NACC 2010 2
The Texas Study of CPM
• Commission for Children, Youth & Families– Mediation effective, yet underutilized– Promote practices that are data-driven, evidence-based,
outcome-focused• UTLaw Mediation Clinic– Collaboration with UTLaw Children’s Rights Clinic &
Commission– CJA projects: 1997-2005– 2008-2009 surveys– Report to Commission April 2010 (on website)
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Texas Context
• One-lawsuit approach– Removal and services provided under temporary
court orders– Statutory time limit for legal resolution
• Significant local autonomy for judicial administration
• No statewide governmental mediation services
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The Past: CJA
• 1997-2005
• 50 counties (out of 254), rural & urban
• Training developed and delivered
• Independent evaluation
• The Bottom Line: CPM effective and efficient process for resolving child protection litigation
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Key CJA Results
• Variety of disputes, including termination
• Most resulted in agreements– Full or partial agreements in 76% of cases
• Used at all stages in case lifecycle– Trend toward later mediation during CJA period– 2003-2005: 86% of mediations occurring later than 90
days after litigation began
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Key CJA Results
• Process seen as fair and effective very satisfied participants– Preferred mediation to adjudication– Opportunity to be heard
• Anecdotal reports of savings but data inconsistent
• Participants considered CPM more effective than resolution through court hearing
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CJA Funding Provided a Kick-Start to Mediation
• Paid for mediation services• Funded CPM-focused mediation training
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CJA Funding Ended 2005
No $ Creativity (home-grown practices + new funding sources)
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The Texas Experience: Present• We wondered what was actually going on
• No consistent, comparable statewide quantitative data
• 2008-2009 surveys– Judges– Mediators– CASAs– DFPS staff– Lawyers in child protection cases
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Caveat
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What We Learned
• Judges strongly believe that CPM serves the best interest of children– 88% satisfied or very satisfied– NO judge dissatisfied or very dissatisfied
• Reports indicate mediation is widely used
• No consistent criteria for referring cases to mediation
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What We Learned
• Courts refer at all stages– Most mediations occur later in case lifecycle• Focus on settlement of litigated case
– A minority occur early• Focus on temporary custody, placement, services• Coordination with FGDM?
• Most mediations result in settlement
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Concerns of Judges
• Mediation confidentiality limits access of judges to facts related to best interests of children
• Quality of participation– Parties (other than AALs & GALs) not focused on best
interests– Impact of multiple representatives of DFPS
Even so, judges overwhelmingly see mediation as serving best interests of children
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Children & Mediation
• Children’s representatives participate usually– AALs– GALs– CASAs
• Children rarely participate– 29% mediators reported children rarely attended– 64% mediators reported children NEVER attended– Some mediators imposed age limits on attendance
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Effective Advocacy
A mediation is not a trial.
Then, whom are you trying to persuade?
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Representing Children in Mediation
• Prepare– meet with child-client BEFORE the mediation– Pre-mediation submittal/brief– Plan strategies and options– Know the other participants
• “Be a zealous advocate, not a foolish advocate”– Strengths & weaknesses – theirs and YOURS– Don’t miss your own boat– Know your judge and jurisdiction– Know and use your mediator
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Representing Children in Mediation
• Does the child-client attend?– Do they want to?– Why attend?– Ethical considerations– Multiple clients in same case– Compare and contrast roles of others who speak
for the child• Unique role of child’s attorney
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Representing Children in Mediation
• Understand mediation confidentiality and its limits
• You don’t have to agree• Post-mediation actions– Legal: disposing of the case– Client follow-up
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Representing Children in Real-World Mediations
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Future: National Guidelines
• Think Tanks annually since 2007• Workgroup of experts drafting guidelines for
CPM– Key sponsors: AHA, AFCC, NCJFCJ– NACC participating
• Hope to have draft guidelines at AFCC meeting in Orlando in June 2011
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Contact informationJudge John SpeciaPlunkett & [email protected]/734-7092
Cynthia BryantUniversity of Texas School of [email protected]/232-1574
Tiffany RoperTexas Supreme Court Commission for Children, Youth & Families512/463-3182
Leslie StrauchUniversity of Texas School of [email protected]/232-1290