Child Protection Mediation as part of ADR services
Child Protection Mediation is one of three prescribed methods of ADR. Alternative Dispute Resolution, most often referred by its acronym of ‘ADR’, came into being in 2006, when the Child and Family Services Act (as it was then called) was amended to stipulate that children’s aid societies must consider ADR for children who are or who may be in need of protection.
All of the ADR processes encourage alternatives to court, in order to provide a participant-focused process, while streamlining cases in the court system. Child Protection Mediation focusses on a strengths-based, inclusive, and collaborative approach to resolving child protection disputes. The process encourages the involvement and support of the family, extended family and the community in planning and decision-making for children and their families when they are involved with the child welfare system.
There are three main prescribed methods of ADR: Child Protection Mediation; Family Group Conferencing; and Indigenous Approaches to ADR.
There is a Ministry Directive, CW-005-06 which outlines the three prescribed methods of ADR. The directive outlines the qualifications and criteria for ADR facilitators, including criteria for neutrality, use of a written agreement including confidentiality provisions and the conditions under which the CAS must provide notice to the Office of the Children’s Lawyer.
Referring workers from children’s aid societies, band representatives or FNIM communities can request ADR services for families either prior to court involvement or during court involvement. A judge may also request that the involved parties consider participating in a prescribed method of ADR.
All ADR services in Ontario are completely voluntary and participants can elect to not participate in an ADR service or process.
ADR Services are funded by the Ministry of Children, Community and Social Services (MCCSS) and are housed at agencies across the province. For more information specific to your area please consult with your local ADR agency (link to list of ADR agencies).
Overview of Child Protection Mediation:
The Ontario Child Protection Mediation Roster is managed by the Ontario Association for Family Mediation, commonly referred to as OAFM. OAFM ensures all rostered Child Protection Mediators meet the minimum requirements set out by the Ministry, such as carrying liability insurance, having a Vulnerable Sector Check completed every three years and provides specialized training in Child Protection Meditation. All Child Protection Mediators names and contact information can be found on our website.
There can be many participants in a Child Protection Mediation. Firstly, and most importantly, the main caregivers of the children, whether that be the parents, extended family members, kin caregivers, or foster parents voluntarily consent to participate in the mediation process. In some cases, the Office of the Children’s Lawyer assigns legal counsel for the child. Most often, child’s counsel will attend the mediation on behalf of the child to bring the child’s views and preferences into the discussion. If the mediation is regarding a youth, then the youth often participates in the mediation directly, accompanied by their OCL. The staff and legal counsel of the children’s aid society also participate in the mediation; there may be several CAS staff depending on the issues to be discussed- CAS staff are there to support families and hear first-hand of the plan for the child/children. Afterwards, their job is to support the implementation of the plan, so it is important that they understand the plan and reasons behind it. The parties’ legal counsel often participates in the mediation; typically, if one lawyer attends, all parties’ lawyers attend. And lastly, but a very important role, is the service provider for any adults who require extra support during the mediation to help ensure that the adult understands the proceedings. For example, this may be an Adult Developmental Support Worker, a translator, or a Canadian Mental Health Worker.
A Child Protection Mediator will meet with all parties individually, including the referring worker and manager from the children’s aid society and the child’s counsel, before bringing everyone together for the mediation. The mediator will explain the mediation process, ensure that the participant understands the voluntary nature of their participation and the confidentiality provisions in place for the mediation. If the participant agrees to participate in the mediation, the participant has an opportunity to provide background information to the mediator relevant to the mediation as well identity their hopes for the mediated agreement. The mediator will screen for imbalance and design a process to allow all participants to partake in the mediation in a safe and healthy manner.
The mediation itself can be either held in person or virtual, depending on the needs of the participants. The participants may choose to have their legal counsel present. If OCL has assigned legal counsel to the child, then they are almost always present at the mediation. The mediator often starts the meeting by reviewing the Agreement to Mediate and helping the group set the agenda. You can expect that the mediator will facilitate a discussion amongst the participants by paying careful attention to ensuring that all voices are heard and respected.
The mediation is typically a 2–3-hour meeting. If full or partial agreement is reached, then the mediator will write up a Mediator’s Report and send this to all participants and their legal counsel. The report itself is not legally binding, and all parties are advised to seek independent legal advice on the mediated agreement, and how to make the terms of the agreement binding, if desired. Families and children’s aid societies sometimes return to mediation to ensure that the plan they developed stays on track. But this is something each family decides in conjunction with the children’s aid society and mediator.
Why use Child Protection Mediation?
Child Protection Mediation is part of a larger array of alternative services offered to families. Some of these services that are offered are conducted by someone who works for a children’s aid society, such as Signs of Safety meeting and sometimes they are conducted by someone who does not work for children’s aid society, such as Child Protection Mediation. Using both internal and external facilitators can be very helpful in moving the work with families forward. It encourages empowerment of families and respects families’ ability to be their own decision-makers and supports families in their knowing of what is best for their child or children.
Child Protection Mediation can often be used in conjunction with other services offered to families. For example, at a Signs of Safety meeting, it may be decided that a Child Protection Mediation is required to negotiate the terms of an Openness Agreement, so then a referral for ADR is made and the mediator conducts a Child Protection Mediation. Similarly, the initial plan may be created for a youth in a Family Group Conference process and then the children’s aid society continues to monitor the plan by using Child Protection Mediation.
Child Protection Mediation is a common alternative for courts to allow families to have agency over their lives in creating plans for their children. Child Protection Mediations are often used to discuss Openness arrangements for children so they can continue to know their birth families to some degree when they are being adopted. Child Protection Mediations are also often used to create parenting plans or review existing parenting plans when there is a lot of conflict between the parents post separation or divorce. Another way in which Child Protection Mediations are used is in the development of a plan to return children to the care of the parents and monitoring of that plan over time by meeting every few months to modify the plan to ensure that it continues to meet the needs of the family.
There are many reasons why using Child Protection Mediation makes good sense for families and good sense for the referring agency. Child Protection Mediation nurtures creative resolutions that work for families. Empowered families are more capable of working with professionals to identify the issues and collaborate to come up with creative solutions through comprehensive information sharing. The Child Protection Mediator uses a variety of techniques to help the participants communicate with each other, tell their stories, identify the issues and concerns, and eventually craft agreements that are viable. A mediated agreement needs to be able to stand the test of time and continue to work for families long after the children’s aid society has concluded their involvement.
Role of Referring Worker in Child Protection Mediation
The referring worker will share initial information with the mediator, with permission of the individual or family. Understanding the families’ relevant involvement with the children’s aid society and understanding the issues that need to be mediated are critical in designing a Child Protection Mediation process that will be successful.
The referring worker may be called upon if the Child Protection Mediator is having difficulty getting in touch with the participant; phone numbers or emails have been updated and having the most current contact information is vital.
At the mediation itself, the referring worker attends, most often with their manager or supervisor. The referring worker will express the views of the children’s aid society in a transparent manner, so all participants are aware of the position of the children’s aid society. This is usually a short statement, but the referring worker should be prepared to speak.
During the mediation, the children’s aid society staff do not take notes. It is the mediator’s notes that form the basis of the Mediator’s report. The OCL and legal counsel will often take notes, as their notes are privileged.