Child Protection Mediation & Advocacy

1. Child Protection Mediation & Advocacy NACC 2010

2. The Texas Study of CPM • Commission forChildren, 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) NACC 2010

3. 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 NACC 2010

4. 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 NACC 2010

5. 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 NACC 2010

6. 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 NACC 2010

7. CJA Funding Provided a Kick-Start to Mediation • Paid for mediation services • Funded CPM-focused mediation training NACC 2010

8. CJA Funding Ended 2005 No $  Creativity (home-grown practices + new funding sources) NACC 2010

9. 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 NACC 2010

10. Caveat NACC 2010

11. 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 NACC 2010

12. 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 NACC 2010

13. 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 NACC 2010

14. 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 NACC 2010

15. Effective Advocacy A mediation is not a trial. Then, whom are you trying to persuade? NACC 2010

16. 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 NACC 2010

17. 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 NACC 2010

18. 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 NACC 2010

19. Representing Children in Real-World Mediations NACC 2010

20. 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 NACC 2010

21. Contact information Judge John Specia Plunkett & Gibson speciaj@plunkett-gibson.com 201/734-7092 Cynthia Bryant University of Texas School of Law cbryant@law.utexas.edu 512/232-1574 Tiffany Roper Texas Supreme Court Commission forChildren, Youth & Families 512/463-3182 Leslie Strauch University of Texas School of Law lstrauch@law.utexas.edu 512/232-1290 NACC 2010