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Archive for the ‘Child Protection Mediation’ Category

Managing the Unknown: How RSI Court Programs Are Responding to COVID-19

Jennifer Shack, May 4th, 2020

This is the story of how RSI is working with courts to confront two crises: the COVID-19 pandemic and the economic downturn. Much of the story will be very familiar to anyone running court mediation programs: having to respond to rapidly changing circumstances and figuring out how to operate in remote processes. Some of it may be less familiar to those whose programs don’t deal with housing issues. I hope this story provides some nuggets of insight or at least a feeling of support for the efforts being taken to maintain programs throughout these crises. Although the story is split into three phases, the phases bleed into one another. So although I end the story in Phase III: Planning for the Future, aspects of Phase I: Dealing with the Unknown and Phase II: The Crisis New Normal (to steal a phrase from John Lande) still remain. 

Background

RSI runs three programs for two courts in Illinois. In Kane County, Program Manager Kevin Malone administers both the court’s foreclosure mediation and child protection mediation programs. In Lake County, Program Coordinator Olga Ivari is in charge of the court’s foreclosure mediation program. The other two staff involved in this story are RSI Executive Director Susan Yates and Associate Director Eric Slepak-Cherney. Together, I’ll be referring to them as “the team.”

The story will focus on the foreclosure mediation programs, for reasons that will become clear. These programs have a two-step process. The homeowners contact Kevin or Olga to enroll and learn about how the program can help them. In the first step in Kevin’s program, the homeowners can then opt to work with a housing counselor to learn about the options for avoiding foreclosure and to get help pulling together the documents they need to send to their lender with their request for a loan modification. In Olga’s program, homeowners are required to meet with a housing counselor as their first step. They then work with their housing counselor to submit the required documentation to request a loan modification. In both programs, the most time-consuming and difficult part of the process is facilitating the exchange of these documents between the homeowners and their lenders. The second step in both programs is mediation. 

Phase I: Dealing with the Unknown

During this first phase, the team was not only facing something they had never faced before, but were reacting to a constantly changing landscape. It seemed that every day brought new information and changes to how they needed to work. During this phase, flexibility, teamwork and, above all, communication were key. 

Susan’s main concern at this time was to keep Olga and Kevin safe, and to be sure they had the support they needed. For her, it was important that she and the rest of the team remain flexible in order to respond to the changing landscape. This required constant communication.  Eric saw his role as making sure that the programs could maintain continuity and to support Olga and Kevin in their efforts to do this. As the situation was rapidly evolving, this required daily calls among the three of them. The calls were meant to be sure that the team was thinking of everything that needed to be addressed as their programs were shifting to remote services. 

At the same time, Kevin, Olga and Eric needed to communicate with the courts. As the courts were issuing new orders changing how they provided services, the team was discussing how these orders would affect their programs and program timelines, and how to ensure these were addressed by the court. Eric noted, “Judges have the big picture of the programs. We have the day-to-day perspective.” So they worked with the judges to make sure that mediation was included in orders extending deadlines and that specific issues were considered in the order. For example, if the parties were given a 35-day continuance in the foreclosure mediation program, how does that change impact when and how the borrowers file paperwork with the lender? 

Based on the court’s new orders, the team began making decisions about whether to reschedule mediations or have the mediators conduct distance mediations. In Kane County, Kevin discussed the options with the judges and together they decided to postpone all child protection mediations, in which parents whose children have been taken into protective custody following a substantiated allegation of abuse and/or neglect can discuss issues with others involved in their children’s case. This was done due to a concern that the mediators wouldn’t have the same control over the process as they would if everyone was in the same room. This is especially problematic if one participant had coercive control over another. If the parties weren’t in the same room with the mediator, there was no way to know, for example, whether that participant was texting threats to the other one. 

For foreclosure mediation, the situation was different. There was no question of participant safety. Instead, the mediations were postponed so that the team could have the time to figure out the best way to conduct the mediations and to think of all the details that would need to be figured out before mediations took place. It also gave time to mediators, who much prefer in-person mediations, to think about how they would deal with remote mediations.

There was another reason to postpone mediations, as well. In response to the economic repercussions of COVID-19, banks began to offer three-month forbearances to homeowners who were in danger of foreclosure. In Lake County, the court has relatively short and strict deadlines, so Olga wanted to be sure that those homeowners who received a forbearance would be able to stay in the program once the forbearance ends in order to obtain a more permanent agreement, rather than having to withdraw because they had reached the court’s deadline for being in the program.  

The decision to postpone the mediations meant Olga and Kevin had to communicate with everyone involved in the programs and in the mediations that were already scheduled. They contacted mediators to let them know what was going on and emailed lawyers and parties about rescheduling mediations to mid- to late-May, after the courts were set to reopen. They also discussed new processes with the housing counselors who help homeowners in their programs and made sure that communications between them remained open. 

Phase II: The Crisis New Normal 

During Phase II, Kevin and Olga began to settle in to new processes put in place and to run their programs as the situation dictated. They also started thinking about how remote mediations might eventually be conducted. As the initial time of being completely off-balance came to an end, the team began to meet once a week, with ad hoc conversations as issues arose. 

The major task for both Kevin and Olga was to continue helping borrowers who had entered the program to continue to move through the beginning steps of the foreclosure mediation process. For Kevin, this means taking phone calls from borrowers who have questions, as well as emailing with them, the lenders and housing counselors as the borrowers provide the lenders with the documents needed in order for the lenders to assess whether borrowers are eligible for a loan modification. Housing counselors have stepped up during this time, taking on a larger role than they had before in facilitating the exchange of documents. 

Olga spends much of her time talking with borrowers, enrolling them in the program and scheduling their initial meetings with the housing counselors (now done remotely) and their mediations. For those homeowners with a forbearance, Olga has been trying to schedule housing counseling sessions and mediations as far out as possible so that they can remain in the program once the forbearance ends. 

Although both Olga and Kevin had postponed foreclosure mediations, they worked with Eric to decide on how they should be structured once they started. They decided to use Zoom, but only conduct the mediations by phone. This decision was based on their concern that borrowers wouldn’t have the technical ability to use videoconferencing. In addition, mediators would be required to learn all the ins and outs, as well as new best practices for videoconferencing. This latter consideration also led to the decision for Kevin and Olga to host the mediations, which means giving each individual permission to enter the teleconference and to send parties to “breakout rooms” when caucus is requested. 

Taking mediations online meant that confidentiality needed to be addressed differently than for in-person mediations. Prior to her first teleconference mediation, Olga and Eric modified the program’s confidentiality agreement to explicitly prohibit recording audio of the mediation. As Olga needed to monitor the mediation for any issues or caucus requests, she signed the confidentiality agreement along with the parties and the mediator. Because it was unusual to listen in on a mediation, she also decided to provide a greater sense of confidentiality to the parties by muting the conversation and responding to mediator requests for help over chat.

Another issue that arose was how to deal with sharing documents during mediation. These documents are generally brought to mediation, but due to the privacy and security issues that were being raised about Zoom, the team decided that the borrowers would submit their documents to Olga prior to mediation, who would then redact them and email them to the mediator. 

Phase III: Planning for the Future

Phase III is similar to Phase II, but with the addition of planning for the courts reopening and the expected new foreclosure crisis that will result from the pandemic. The team has also started taking stock of what will be needed if the courts must suspend operations again. Both are also using this time to update forms and revise their informational materials as they prepare for new enrollees. 

But planning for the future is what differentiates this phase from the last. As unemployment numbers soared and the banks used forbearances as never before, the team began to suspect that a new foreclosure crisis is looming on the horizon. They have begun speaking with the housing counselors they work with and with housing experts to get a clearer picture of what they might be facing.

The court in Lake County is also thinking ahead and judges have asked RSI to figure out what will be needed when the foreclosure crisis hits. The team is in a good position to do this. Because RSI tracked a lot of data during the height of the last foreclosure crisis, the team knows what percentage of cases will be mediated and thus how many mediators will be needed. They also know what supporting technologies, such as intake portals and case management systems, will be beneficial and what could be improved.

Because they have been through a foreclosure crisis before, collected data and made changes to improve their programs, and most of all have a process in place already, Kevin and Olga are much better positioned to confront the next foreclosure crisis than the last one. But there are still some unknowns. How are the federal and state governments going to respond? Will programs be put in place to help homeowners, as they were last time? And if so, what will those programs look like? Susan points to these questions as the new challenge for the team. 

The Next Phase

We’re all still working in a world in which we don’t know what the new normal will be or when it will even come. Indeed, Illinois just extended its stay-at-home order for another month, meaning the team will once again have to respond to changing circumstances. So in part, the team is still in Phase I, dealing with the unknown. This means that for the foreseeable future, they will still be facing the biggest challenge identified by Eric: trying to anticipate new issues and address them before they arise. 

AFCC Endorses Child Protection Mediation Model Mediator Competencies

Nicole Wilmet, September 26th, 2019

The Association of Family and Conciliation Courts’ (AFCC) Board of Directors recently endorsed the Child Protection Mediation (CPM) Model Mediator Competencies. Inspired by the AFCC’s Guidelines for Child Protection Mediation, the competencies were developed by a CPM Model Mediator Competencies Workgroup after the group reviewed a chapter in the Guidelines on “Mediator Recruitment and Training.” The workgroup was comprised of a variety of CPM practitioners including: Laura Bassein, JD; Kelly Browe Olson, JD; Gregory Firestone, PhD; Marilou Giovannucci, MS; and Susan Storcel, JD.

The competencies take a thorough look at CPM and identify the various knowledge, skills, and abilities that effective CPM mediators should have. Some of the subjects addressed include communication skills, ethics, diversity issues, self-determination and domestic violence issues. Court programs and mediators may utilize these competencies to further their understanding of what CPM programs should expect their mediators to know and may be used as a basis for training, personal development, mentoring, and evaluation.

Participants Are Highly Satisfied with Nevada’s Child Protection Mediation Program

Jennifer Shack, July 1st, 2019

Last month, I talked about a new evaluation of child protection mediation in Michigan. I’m following this up with a 2017 evaluation of child protection mediation in Nevada. Both evaluations were of several programs taking place throughout the respective states, but their focuses are quite different. Where the Michigan study primarily examined time to permanency, the Nevada study focused much more on participant experience in the mediation and process issues.

The Nevada study, “Process Evaluation of Nevada’s Statewide Dependency Mediation Program,” by Shamini Ganasarajah, et al, of the National Council of Juvenile and Family Court Judges, found high levels of satisfaction with mediation and agreement, as well as a possible impact on whether scheduled hearings after mediation were cancelled. The study also found that there was no difference in satisfaction rate based on the stage at which mediation occurred, but that satisfaction was higher when mediation resulted in agreement as compared to when it did not.

The study looked at mediation in seven counties. In these counties, mediation can be used at any point of the case. However, most cases used the mediation program at the termination of parental rights (TPR) stage, which is at the end of the case. (This finding regarding the timing of mediation is skewed somewhat by one county using mediation almost exclusively at the TPR stage.) Time in mediation averaged two hours.

Those who participated in mediation were asked to complete post-mediation surveys. For the purposes of this study, these people were divided into program participants (these are natural parents and foster parents) and system stakeholders (the attorneys and case workers involved in the case). During the study period (July 2016 through April 2017), participants completed 113 post-mediation surveys and stakeholders completed 267. In their responses, 84% of the participants and 98% of the stakeholders expressed satisfaction with the mediation program. Their satisfaction was statistically related to whether they reached agreement in the mediation.

The participants (family members) were highly positive about all aspects of the mediation. All of them thought the process was fair. Almost all said they were able to voice their opinions, were treated with respect and were able to be a part of finding answers to the problems discussed. Almost 90% said the others really listened to them. For all practical purposes, these responses did not vary based on whether they were foster parents, natural mothers or natural fathers.

The evaluators analyzed whether there was a relationship among the participants’ responses. One that stood out was that when participants believed others in the mediation had “really listened” to what they had to say, they were more likely to express satisfaction with the mediation regardless of whether an agreement was reached.

The stakeholders (attorneys and caseworkers) were also highly positive about the mediation, with all or almost all believing the process was fair, that they had an opportunity to express their opinion, were treated with respect, were listened to and were able to be a part of finding answers to the problems discussed.

Interestingly, both participants and stakeholders were most likely to mention communication as what was most helpful about the mediation. Both groups were also most likely to say that parties being unable or unwilling to compromise was the reason no agreement was reached.

Also interesting was that the mediators reported agreements in 84% of cases, while the stakeholders reported that agreement resulted from only 71% of their mediations. There is no explanation as to why. The study also found that hearings were cancelled after 51% of the mediations were held. The evaluators recommended further examination of the relationship between mediation and vacated hearings.

Other recommendations included expanding the use of mediation to all stages of the case, as most mediations occurred at the TPR stage; assessing implementation of domestic violence screening protocols; and enhancing mediator training to include additional strategies for effectively listening to participants and stakeholders and making them feel heard.

Facilitating Earlier Intervention in Child Protection Mediation

Eric Slepak-Cherney, June 27th, 2019

Since 2017, RSI has been mediating cases involving families in the child welfare system in Kane County, Illinois. In these mediation sessions we focus on the dynamics within the family, such as communication between family members and how their relationships with one another impact the children. Our roster of volunteer mediators also address issues involving family members and the professional stakeholders, such as the Department of Child and Family Services caseworkers, guardians ad litem, and attorneys; for instance, we assist parties in clarifying what services family members should be receiving and the logistics therein.

Many of these cases, unfortunately, linger in the child welfare system for a long time. There is robust evidence suggesting that children experience more adverse effects the longer they are in foster care, or without permanency (finding these children a stable, long-term home and support). Another unfortunate outcome of cases lingering in the system is that as cases languish without resolution, the parties often become disillusioned. When these sorts of cases are referred into mediation the neutrals often find themselves with a nearly insurmountable challenge: finding common ground between parties who have years of negative interactions between them.

One way our program is trying to combat this problem is by intervening at an earlier stage in the court case, in what will be called “facilitation” sessions. Modeled off similar sessions we observed in Cook County, Illinois, our goal for these facilitations is to help better orient the family to what they can expect from the court process as well as to build rapport between family members and professionals. The role of the mediators in these sessions is still to facilitate a conversation, but one that is centered less on exploring a potential agreement and more on the exchange of information and answering questions. This seemingly simple objective has the potential to prevent major conflict down the line by providing clarity about the Child Protection process and establishing positive relationships early on.

We are still finalizing details about what exactly these sessions will look like, but we expect them to take place very soon after the children have been removed from the home. One challenge this presents is helping family members navigate the shock and raw emotions of this experience, and presenting information in a way that can be absorbed in spite of the overwhelming circumstances they face. We’re also mindful after having evaluated the DC Child Protection Mediation program that conducting a mediation session too early can run the risk of duplicating the family team meeting, which is why we want to have a clear purpose for facilitation and distinguish it from the mediation sessions we conduct later in the process.

In spite of these potential pitfalls, we are hopeful that the facilitation session will be another powerful tool in navigating these fraught cases. We are operating in a context where, among all states, Illinois ranks last in time to permanency. Everything we can do to help bring the focus on the kids and their needs stands to help ameliorate this unacceptable status quo. We welcome the input of any and all of our colleagues for suggestions on how we can get the most out of these sessions.

Study of Child Protection Mediation in Michigan Finds High Rates of Satisfaction, Permanency Effects

Jennifer Shack, May 29th, 2019

The Michigan State Court Administrative Office recently released its report on child protection mediation (CPM) in the state. In Michigan, CPM is conducted by community mediation centers associated with the courts. The study looked at CPM at five of these centers, which collectively provide services for 24 counties. It focused on descriptive statistics, participant and stakeholder perspectives, and time to permanency. The report found that CPM participants have positive perspectives on the process, that stakeholders are largely supportive of it and that it reduces time to permanency.

Mediation in the five sites (Gaylord, Jackson, Marquette, Petoskey and Traverse City) is voluntary and primarily takes place early in the case, on average within 60 days of the filing of the petition. In the five sites, the number of mediated cases during the study period (January 2016 – October 15, 2018) ranged from six to 105.

Petoskey and Gaylor had participant experience data. In both, participants responded positively to each survey question asked. In Petoskey, participants said that they had the opportunity to express themselves, gained a better understanding of the issues, felt respected and felt the process was fair to them. In Gaylord, they had similarly high ratings for those topics, and also said they felt safe and believed the mediator was neutral.

The study included data from surveys statewide that asked those going through the traditional process and those going through CPM how satisfied they were with their experience. On three metrics, parties who went through CPM gave slightly higher ratings: case resolution, staff courtesy and courtesy of the judge.

The researchers interviewed ten stakeholders for the report. The stakeholders were asked about their perspectives on the effectiveness of CPM. The majority believed that CPM resulted in significant time and cost savings. They also felt that mediation was effective at improving family permanency and the parents’ relationships with child protection workers. On the other hand, they had some reservations about how often parents comply with mediation agreements.

The interviewees were also asked their perceptions of other parties’ willingness to participate in CPM. Their responses indicated that stakeholders were consistently likely, or very likely, to be willing to participate in CPM, with child protection workers relatively willing and guardians ad litem extremely willing to do so.

The researchers compared the average time to permanency in the CPM study sites to those in comparable sites that did not have CPM. They found variation in the time to permanency among the five sites, as well as the comparison sites, with Petoskey having a much longer time to permanency than any of the other sites. Overall, however, they found that time to permanency was 50 days shorter on average in CPM sites than in the comparison sites. The researchers also found that cases in the CPM sites were more likely to close within 2 years than those in the comparison sites. Again, there was significant variation among the sites.

It isn’t clear from the data provided that CPM was the cause of the shorter time to permanency or the higher closure rate. In Traverse City and Jackson, which had the shortest times to permanency, a very small percentage of cases was mediated (6 mediated cases, 145 cases closed for Traverse City and 9 cases mediated, 133 cases closed for Jackson), which calls into question how much of an effect CPM was on permanency at those sites.