1. Child Protection Mediation & Advocacy NACC 20101

2. The Texas Study of CPM Commission for Children, 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 20102

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 20103

4. 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. 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. 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 20107

8. CJA Funding Ended 2005 No $  Creativity (home-grown practices + new funding sources) NACC 20108

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 20109

10. Caveat NACC 201010

11. 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. 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. 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 201014

15. Effective Advocacy A mediation is not a trial. Then, whom are you trying to persuade? NACC 201015

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 201016

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 201017

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 201018

19. Representing Children in Real-World Mediations NACC 201019

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 201020

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 for Children, Youth & Families 512/463-3182 Leslie Strauch University of Texas School of Law lstrauch@law.utexas.edu 512/232-1290 NACC 201021