Mediation in Neglect/Abuse - Time and Cost Savings?

By Valerie Lafferty

Legal news contributor

Editor's note, Val Lafferty, Valerie Lafferty PLLC, is an attorney and mediator practicing in the Greater Lansing area. She specializes in Elder Law, Property and Mediation - and has represented parents in neglect/abuse court appointments

Linda Glover, Executive Director of the Resolution Service Center (RSC) in Lansing, spoke recently to Ingham County Bar Association's Child Welfare Section about the use of mediation in neglect/abuse (N/A) proceedings. Linda has prior experience as a foster care worker, foster care supervisor and as a mediation administrator for the Supreme Court Administrator's Office, among other relevant experience, before heading the RSC. Linda's comments along with earlier thoughts shared via Children's Law listserve demonstrate the success of mediation in Michigan counties where it is used.

In 2005, the seven pilot projects then using mediation in Michigan N/A cases were evaluated by the Michigan State University School of Social Work. The evaluators concluded that agreements were reached in more than 80% of mediated cases between 2000 and 2003, and that children involved in the mediated cases achieved a permanent placement an average of 8 months sooner than children in unmediated cases. The evaluators also found that mediation resulted in substantial savings of funds that would otherwise have been spent on court hearings or out-of-home placement costs.

In Charlevoix County every N/A case reported is sent to mediation at the adjudication stage. Sanilac County uses mediation at several junctures during the 1-3 year or more process. The parties can agree to mediate at the preliminary hearing or the judge might order it somewhere along the line - especially where a neutral third party could bring perspective for extremely adversarial hearings. Prosecutor Eric Scott of Sanilac noted that while mediation is used at all stages of the process he believes pre-trial is the best place to achieve resolution.

Probate Judge Kenneth Tacoma in Wexford County uses Permanency Planning Mediation (PPM) versus Permanency Planning Conferences (PPC). PPCs came about as a result of a lawsuit settlement with the state. PPCs are aimed at case management and differ from mediation in several important ways:

* mediation is under the auspices of the Court,

* all parties are present at a PPM,

* parties are represented by counsel in mediation and

* the process is facilitated by a neutral mediator (PPCs are facilitated by DHS employee).

Where termination of parental rights is being sought, Wexford County estimated 75% are settled in a PPM. Judge Tacoma believes the big difference is that mediation makes parents feel they are being listened to (versus ganged up on) and therefore the PPM process presents more opportunities for parents to develop what truly is best for the child.

Mediator/Attorney/Trainer Susan Butterwick from Ann Arbor clarifies that PPCs used to be called TDMs and originated as a requirement of an Anne E. Casey grant, even before the law suit. A PPM can be used at any stage in the case, not just the Permanency Planning Hearing stage, adds Susan, which was why "we changed the name of our program from PPM to Child Protection Mediation because stakeholders thought it was a process that was to be used only at the PPH stage."

In Marquette County, Probate Judge Michael Anderegg reiterates the value of PPM over PPCs: unlike PPC all parties must be present. Plus, if agreement is reached, it is incorporated into the court order. Marquette was one of the SCAO program's pilot sites. Since SCAO's funding for mediation was terminated, Marquette funds the operation of their PPM program from local sources.

In Wayne Co. mediation is being used in the 3rd circuit court at most points along the N/A continuum from post-adjudication through (contested) adoptions. Susan Butterwick reports the program has been in place, through the Wayne Mediation Center, for about 3 years. "One of the Wayne Co. DHS district offices is also using mediation as part of a pilot on unsubstantiated CPS cases as a way to resolve the underlying dispute that causes repeated unsubstantiatiable reports, " offers Susan. She further clarifies that the entire pilot program through SCAO from 1998-2003 showed children reached permanency approximately 12.5 months sooner when mediated versus non-mediated.

Also, while this is not an exhaustive list, there are other models to draw upon. Mediation is used in every abuse/neglect case in Washington DC Family Court and in San Jose, CA. Cook Co. (Chicago) uses mediation on every case after the first shelter hearing if the child is placed out of home (which is most cases).

One of the virtues of mediation compared to litigation is the increased prospect of maintaining relationships after the process - certainly ideal for the family related issues in family and probate court. But by far the larger potential benefit is cost savings - not by cutting services but by utilizing more effective procedures to resolution.

Given Governor Snyder's mantra of value for services, perhaps an opportunity to revisit the benefits of mediation is at hand. It would seem logical to pursue a more systematic use of mediation in abuse and neglect cases through the state.

Published: Mon, Apr 18, 2011