ADR: Paths to Settlement
The Children’s Court Mediation program serves children and families involved with CYFD Child Protective Services due to allegations of abuse, abandonment, and/or neglect. A trained professional mediator meets with parents, attorneys, CYFD case workers and others to help everyone talk about disagreements related to the safety and well being of the children. Anyone involved with an abuse and neglect case may request mediation. Mediation is confidential and free.
Family Frequently Asked Questions
Do I need an attorney?
You have the right to have an attorney present at the mediation with you. If you already have an attorney or the court has appointed one for you, the attorney must be present. If your intention is to retain an attorney, the mediation will not convene unless your attorney is present.
If you attend the mediation without an attorney, neither the mediator nor the other attorneys present will be able to provide you with legal advice.
How can I best prepare?
For parents and guardians, remember that even though you may be required to go to mediation, it is not like court. It is more informal, and there are no rules of procedure or evidence. You and the other people attending the mediation will decide what you all want to talk about. The program has a brochure to help prepare families for mediation. For anyone attending mediation, here are a few tips that will help:
- Be prepared.
- Be willing to listen carefully to others.
- Try not to interrupt.
- Be willing to talk and participate.
- Be willing to consider new ideas.
- Come with an open mind.
How can mediation help my family and me?
Mediation will give you an opportunity to express yourself and to be heard by the other parties outside of the formal court setting. You know your children and family situation better than anyone else. Mediation allows you to share ideas and help make a plan for the care and protection of your child.
How long will the mediation last?
Most mediation sessions are scheduled for one to two hours, although cases that involve permanency issues may last longer and include multiple meetings.
Is mediation confidential?
In New Mexico, the issues and matters discussed during the mediation are confidential when conducted under a court order or with a signed Agreement to Mediate. You will be asked to sign an Agreement to Mediate if your mediation is not court ordered. An exception to this is that professionals involved in the mediation must report new instances of child abuse or neglect or threat of physical harm. Any discussion about previously reported abuse or neglect remains confidential.
What are other parents/guardians saying about their mediation experience?
These comments were taken from surveys filled out by parents/guardians after their mediation:
- I feel I have a better understanding of what is going on and what is expected of me.
- Everyone listened and put in their thoughts. No one was judgmental on the situation.
- Good decisions were made through peaceful means.
- We got an understanding of what everyone’s points of views are.
- I finally got someone to hear my cries for help. Thank you.
- I felt like I know a lot more information pertaining to my children and our case.
- I had a chance to speak openly about the situation concerning my child.
- I left with a better understanding of birth parents feeling and with where this might go.
- I got a sense that I was heard and acknowledged in mediation.
What do people talk about at mediation?
People talk about anything that can help them reach agreement about what is best for the children and family. For example, you might discuss legal issues, temporary and permanent placement options for the children, visitation by parents, siblings, and other relatives and arrangements for supervision and transportation, services for children and parents (counseling, medical, etc.) and compliance with treatment plans.
Mediation is not the place to dwell on who is to blame for family problems or to vent personal issues that do not serve to move the decision-making process forward.
What does the mediator do?
The mediator encourages good communication and an atmosphere of respect. They will not take sides, give advice or make decisions for others. The mediator makes sure everyone gets a chance to voice their concerns. This helps people explore and negotiate their own solutions. If the parties can agree on a solution, the mediators will assist all the parties to draft a written agreement.
What happens at mediation?
The mediator may meet with you and the other parties by phone or in person before the mediation to confirm the meeting and answer any questions you may have about mediation.
Once everyone has arrived at the mediation session, the mediator will ask everyone to introduce themselves. The mediator will then help the group identify the issues to be discussed during the mediation. After this, the mediator will help the parties to discuss the issues, identify options and explore possible solutions.
The mediator may meet with individual parties or with the group as a whole in discussing these issues.
If an agreement is reached, the mediator will review the terms with everyone and assist the parties with drafting a written agreement, if appropriate.
What happens if we don't reach an agreement?
The mediator will notify CYFD and the court if this is a legal case.
What happens when an agreement is reached?
If an agreement is reached during mediation, the mediator is responsible for assisting parties with drafting the written agreement for review by all parties. In legal cases, the CYFD Attorney is typically responsible for getting signatures and making sure the agreement is filed with the court and/or entered into the court record.
The Court will monitor the enforcement of any agreement between the parties and the CYFD. For pre-legal cases, the parties are responsible for enforcing the terms of any agreement.
What is Children's Court Mediation?
Children’s Court Mediation is a confidential meeting with a specially trained unbiased person who helps parents talk about issues related to the safety and well being of their children. The meeting is informal, but structured. Sometimes mediation is used instead of going to court. Other times it is used to help participants understand and resolve some of the issues ahead of time and save time in court.
What is the cost of mediation?
There is no cost to the participants.
When can mediation take place?
Mediation may occur at several different stages in a child abuse/neglect case. It depends on the court and on the case.
In many courts, mediation takes place before the Adjudicatory Hearing. (The hearing where the judge decides whether abuse or neglect actually occurred.) One purpose of mediation at this point in the case is to talk about why the child was removed. The other purpose is to develop a treatment plan for the child and parents that will help reunite your family, or do whatever is best for the child. That treatment plan is presented to the judge.
Mediation might also happen before the Permanency Hearing. (The hearing where the Judge decides whether or not the child will be returned home.) This mediation session focuses on the best interest of the child, whether the permanency goal recommended to the judge will be to return the child home or change the plan to some other permanency arrangement.
Mediation may also take place when the judge has decided that children should not be returned home and there is a new plan for adoption. A case may be referred to an Open Adoption mediation only if both the birth parents and the prospective adoptive parents are interested in discussing the possibility of an open adoption. The mediator meets with both families to discuss possible terms for contact after the adoption. If attorneys are involved, they will assist their clients in the mediation process and review any draft agreement. A final agreement, once accepted by the court, will become part of the adoption decree.
In most courts, mediation may occur before the case even goes to court. At this point, the purpose is to come up with a plan that keeps children safe and prevent them from having to be removed from home.
Where are mediations held?
Mediations typically take place at either the local judicial district courthouse or CYFD offices. Mediators may also schedule mediations at other locations with agreement by all parties.
Who are the mediators?
The Children’s Court mediators are experienced and have special training mediating child abuse and neglect cases. They are independent contractors with the New Mexico Administrative Office of the Courts. They do not work for the District Courts or CYFD.
Who will be there?
Parents and their attorneys, CYFD attorney, child’s attorney (Guardian ad Litem), youth attorney (for youth 14 years and older) and CYFD caseworkers are the main people that will attend the mediation. Sometimes, other parties such as relatives or support people may also attend. Other people may attend only if everyone agrees.
Children under 14 years or older may attend with approval of their attorney. All children 14 years or older should participate in the mediation with their attorney present, unless everyone has agreed that their participation is not appropriate.
Open Adoption Mediation
What is Open Adoption?
Open adoption is an adoption that allows for an ongoing relationship among the birth family, adoptive family, and adopted child. Open adoptions may include extended family members such as birth grandparents and siblings.
There are many degrees of openness ranging from a very limited exchange of information between birth and adopting parents, such as regular exchanges of letters and photos (either directly or through a third party) to actual contact between birth parents and adopted child.
In every adoption with any amount of openness, it is important that the birth family and adopting family have the same understanding of what “open” means and that they remain committed to meeting the needs of the child throughout the child’s life.
What is open adoption mediation?
Open adoption mediation refers to a process for mediating of a Post Adoption Contact Agreement (PACA). This is an agreement between the birth parents and prospective adoptive parents that allows for some type of contact between a child’s adoptive family and members of the child’s birth family after the adoption has been finalized. Consistent with New Mexico Statute 32A-5-35, a PACA is filed as part of the final Open Adoption Decree and is enforceable by the Court.
PACA mediation is a voluntary, confidential process facilitated by a specially trained and experienced mediator. The mediator helps parties explore and consider different types of contact that support the safety and best interests of the child. The mediator does not make decisions for the parties nor does the mediator give legal advice or psychological counseling.
Who is involved in open adoption mediation?
Usually, mediation involves the adopting parent, the birth parent and the mediator. In some cases, the children, other siblings or their families, grandparents, and/or other people important to the child may be a part of the mediation.
How does open adoption mediation work?
Open adoption mediations are conducted consistent with the New Mexico Court Improvement Project (CIP) CIP Best Practices for Open Adoption and Mediating Post Adoption which includes the CYFD Guidelines for Completing a Mediated Open Adoption.
Once there is a plan of adoption, an identified adoptive family and the birth family and prospective adoptive family have agreed to mediation, a referral is made to the regional coordinator.
Parents and their attorneys, CYFD, the GAL, Youth Attorney, CASA or the Court may request mediation. A stipulated court order is filed by the CYFD Attorney.
The regional coordinator assigns a mediator to the case. The mediator contacts all the interested parties to schedule an initial meeting and to answer questions about how mediation works.
What happens during open adoption mediation?
The mediator meets first with all interested parties and their attorneys to review the mediation process and to clarify issues, including who is responsible for writing the final PACA. All parties sign a Mediation Agreement.
The mediator then meets with birth and adoptive families only to discuss and identify contact terms and conditions. The mediator is responsible for distributing a Post-Adoption Contract Agreement to all parties and their attorneys for review. If parties are unable to reach an agreement, the mediator will distribute a No Agreement Letter.
The Adoption Attorney or other designated attorney drafts a final agreement, circulates it to all parties and their attorneys, and ensures that the agreement is signed by birth and adoptive parents and is filed with the Court as part of the final adoption decree. A copy is also placed in the CYFD case file.
Follow-up mediation sessions may be scheduled to resolve outstanding issues. The mediator may also reconvene all parties to finalize the PACA.
Who gets copies of the PACA?
In addition to the birth and prospective adoptive parents, a copy of the PACA will be placed in the CYFD case file, as per CYFD Guidelines. Consistent with New Mexico Statute 32A-5-35, all Post Adoption Contact Agreements are filed, as part of the final Open Adoption decree, and are enforceable by the Court.