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MEDIATION IN DFPS CASES: ETHICS IN REPRESENTATION OF PARENTS/CHILDREN IN MEDIATION

This article explores the ethical considerations for attorneys representing parents and children in mediation cases, including pre-mediation preparation, effective communication, and post-mediation follow-up. Topics covered include scheduling, client communication, discovery, and realistic expectations.

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MEDIATION IN DFPS CASES: ETHICS IN REPRESENTATION OF PARENTS/CHILDREN IN MEDIATION

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  1. MEDIATION IN DFPS CASES: ETHICS IN REPRESENTATION OF PARENTS/CHILDREN IN MEDIATION BY AMY LACY

  2. MEDIATION • DEFINITION – A private process in which an impartial person, a mediator, encourages and facilitates communication between parties to a conflict and strives to promote reconciliation, settlement, or understanding. A mediator shall not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties.

  3. SOME BASICS • -Mediation is a private process • -Mediation is informal (no court reporters, no recordings, no service) • -Mediation is confidential to the extent provided by law (See e.g. Sections 154.053 and 154.073 Texas Civil Practice and Remedies Code.)

  4. REPRESENTING YOUR CLIENT - STAGES • WHAT TO DO BEFORE MEDIATION • WHAT TO DO DURING MEDIATION • WHAT TO DO AFTER MEDIATION

  5. ATTY FOR PARENTS –BEFORE MEDIATION • BE FLEXIBLE W/ SCHEDULING • TALK TO YOUR CLIENT BEFORE MEDIATION TFC 107.0131(G) -Explain process, who/what/where/when/why -what is mediation? who is the mediator? -What is an Mediated Settlement Agreement (MSA) - CLIENT IN JAIL – GO SEE THEM, WRITE TO THEM

  6. ATTY FOR PARENTS – BEFORE MEDIATION • GIVE YOUR CLIENT NOTICE – THEY NEED TO BE PRESENT – IF THEY ARE OUT OF STATE, PARTICIPATE BY PHONE / Facetime – YOUR RESPONSIBILITY TO GIVE PARENTS NOTICE

  7. ATTY FOR PARENTS – BEFORE MEDIATION • BE PREPARED -TALK TO THE AD LITEM –WHAT IS HIS/HER POSITION? HAS IT CHANGED? -TALK TO THE CASEWORKER/CHILD ADVOCATES – HAVE THEY TALKED TO YOUR CLIENT? ANY UPDATES RE SERVICES?

  8. ATTY FOR PARENTS – BEFORE MEDIATION • REQUEST AN INTERPRETER – WEEKS BEFORE THE MEDIATION. • BE PREPARED -Be involved. -Give suggestions to Mediator -PLAN A, B, C, STAIRSTEP TIMELINE

  9. ATTY FOR PARENTS – BEFORE MEDIAITON • IF CLIENT WILL BE A NO SHOW, TELL EVERYONE AHEAD OF TIME • PLACEMENT INFORMATION • -GET INFORMATION OF POSSIBLE RELATIVE / FICTIVE KIN (DOB, DL, SSN, DOB OF ALL ADULTS) AND GIVE IT TO CPS SO THEY CAN DO BACKGROUND CHECK PRIOR TO MEDIATION • INDIAN CHILD WELFARE ACT – ATTORNEYS FOR PARENTS, ASK YOUR CLIENT IF THEY HAVE INDIAN BLOOD, MEMBER OF A TRIBE?

  10. ATTY FOR PARENTS – BEFORE MEDIATION • DISCOVERY – • SERVE DISCOVERY • READ DISCOVERY RESPONSES - WHAT DOES IT SAY ABOUT YOUR CLIENT? • CHECK YOUR / CPS’ LIVE PLEADINGS • CHECK FOR PARENT’S DRUG RESULTS • ARE THERE NO-SHOWS? • ARE THE LEVELS DECLINING?

  11. ATTY FOR PARENTS – BEFORE MEDIATION MEDIATE IN GOOD FAITH -REALISTIC EXPECTATIONS -TERMINATION, C IS RETURNED HOME, PMC AGENCY CLIENT CONTROL - EXPLAIN WHAT IS APPROPRIATE BEHAVIOR (No cussing /No violence/No shouting)

  12. ATTY FOR PARENTS – BEFORE MEDIATION DO NOT INVITE A BUNCH OF NON-PARTIES TO MEDIATION – IT’S NOT A PARTY! -PARAMOURS/FAMILY MEMBERS/LIFE COACH/AA SPONSORS

  13. ATTY FOR PARENTS – DURING MEDIATION • BE ON TIME, LET SOMEONE KNOW YOUR ETA • MAKE SURE YOUR CLIENT KNOWS THE LOCATION OF THE MEDIATION -No it’s not at Murworth! -No it’s not at NRG Stadium! • BE THERE WITH YOUR CLIENT THE WHOLE TIME. -TRY NOT TO SCHEDULE ANOTHER MEDIATION AT SAME TIME -TRY NOT TO GO CHECK ON A CASE. “I’LL BE RIGHT BACK”

  14. ATTY FOR PARENTS – DURING MEDIATION • DON’T PHONE IT IN. • -IF YOUR CLIENT CAN MAKE IT YOU SHOULD MAKE IT. • HAS YOUR CLIENT EVEN MET YOU? • IT’S NOT THE MEDIATOR’S / ANOTHER ATTORNEY’S JOB TO EXPLAIN THINGS TO YOUR CLIENT • BE PRESENT FOR MEDIATION –DON’T CANCEL – GET A SUBSTITUTE ??

  15. ATTY FOR PARENTS – DURING MEDIATION • INFORM YOUR CLIENTS OF ALL OFFERS -EVEN THE ONES YOU THINK THEY SHOULD REJECT -REMEMBER ITS THEIR CASE • EXPLAIN THE DIFFERENCE BETWEEN JOINT SESSION AND CAUCUS • MAKE SURE YOUR CLIENT DOES NOT SAY STUFF IN JOINT SESSION THAT IS CONFIDENTIAL -IT’S NOT A THERAPY SESSION!

  16. ATTY FOR PARENTS – DURING MEDIATION RELINQUISHMENTS BY PARENTS – -AT MEDIATION / TRIAL? -HAVE FORM READY, LINE UP WITNESSES, NOTARY LIST OF WHAT YOU WANT IN MSA -EX. NOTICE OF DRUG TESTING - TO CLIENT AND ATTY -IF THERE IS AN INTERPRETER, ASK THAT LANGUAGE RE USE OF INTERPRETER BE PUT IN MSA

  17. ATTY FOR PARENTS – AFTER MEDIATION • GET THEM A COPY OF THE MSA • DO THEY NEED TO BE PRESENT FOR THE PROVE UP OF THE MSA? • WAS THERE A FOLLOW-UP THAT THE MSA REQUIRED? • -CPS WAS GOING TO DO SOMETHING • -PARENT WAS GOING TO PROVIDE SOMETHING – INSURANCE CARD FOR C, COPY OF LEASE ETC.

  18. AD LITEM FOR CHILD – BEFORE MEDIATION • BE FLEXIBLE W/ SCHEDULING • GO SEE YOUR CLIENT TFC 107.004(d) -What Does Your Client Want? -Is There A Conflict? • CHECK PLEADINGS OF CASE • CPS?, AD LITEM? PARENTS?

  19. AD LITEM FOR CHILD – BEFORE MEDIATION • TALK TO THERAPISTS BEFORE MEDIATION • REVIEW CPS’ DISCOVERY RESPONSES – -THERAPY NOTES - DRUG TESTS(GET ALL OF THEM, ESPECIALLY LATEST ONES)

  20. AD LITEM FOR CHILD – BEFORE MEDIATION • GO SEE PARENT’S HOME, IF APPROPRIATE • TELL CPS YOUR POSITION • ARE YOU ALIGNED? • REQUEST ANOTHER MEDIATION IF APPROPRIATE

  21. AD LITEM FOR CHILD – DURING MEDIATION • SHOW UP AT MEDIATION – DON’T PHONE IT IN • BE RESPECTFUL TO PARENTS • MEDIATE IN GOOD FAITH

  22. AD LITEM FOR CHILD – AFTER MEDIATION • WAS THERE ANYTHING YOU PROMISED TO DO IN THE MSA? • VISIT PARENT’S HOME • VISIT RELATIVE’S HOME

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