All children 14 years old or older should participate in the mediation process with a Youth Attorney present, unless the parties have agreed that their participation is not appropriate. If the referral indicates concerns about the child’s ability to be included in the mediation process, the mediator will clarify these concerns with the Youth Attorney or GAL (if the child is under 14 years old). Typically, a child under 11 will not participate directly in the mediation process; however, they may participate in the process if the GAL thinks it is appropriate. The mediator works closely with all parties to reach consensus as to the appropriate level of participation by children in mediation.

Attorneys must attend mediation when under a court order. Participating attorneys are usually the CYFD attorney, respondent attorneys, Guardian ad Litem, and youth attorneys (for youth 14 years or older).

The parties are responsible for enforcing the terms of any agreement reached by parties during a pre-legal mediation (i.e., at Investigation stage). An agreement reached during a legal mediation (i.e., once the child is in custody) is monitored and enforced by the Court. Post Adoption Contact Agreements filed as part of the final Open Adoption Decree are enforceable by the Court.

The regional program coordinator maintains a list of qualified mediators, approved by the Implementation Team. The list is distributed to all members of the Implementation Team, Department attorneys, Respondent attorneys, etc. Mediators are considered in alphabetical order and appointed at the discretion of the regional program coordinator.

Mediation may help to avoid prolonged, contentious legal proceedings that can extend a child’s stay in foster care.

By improving communication among the various parties, mediation can minimize frustration, delay and conflict between parents and service providers.

Because families are given an active and respected voice in overcoming obstacles to permanency, child welfare mediation can reduce their feelings of alienation, confusion, distrust and apathy.

Parents who become more engaged in permanency planning for their children are better able to assist in moving these cases to a speedier and positive resolution.

Once the court has ordered mediation, canceling the scheduled mediation requires either the court’s approval or by agreement of all the parties.

A Motion and Order to Vacate the Mediation is filed directly with the court and a signed copy must be sent to the regional coordinator.

In the case of an emergency situation such as a serious illness or hospitalization, contact the regional coordinator or assigned mediator, as soon as possible.

Since mediation dates are generally calendared in court and parties have agreed to the date, the parties must agree to a change of date. The person requesting the change must first notify the regional local coordinator or the assigned mediator and then contact the other parties to coordinate a new date. The original mediation date stands until the parties have agreed to a new date and the requester contacts the regional local coordinator or assigned mediator with the new date. The mediator will send notice of the change to all interested parties.

When the attorney requesting the change wants to continue a court ordered mediation, a motion and order needs to be submitted directly to the court. The original date stands until the court has approved the motion.

All Children’s Court mediation sessions are conducted either by court order or with a signed Agreement to Mediate. As consistent with the New Mexico Mediation Procedures Act, 44-7B-1 et. seq. NMSA, Orders for Mediation and Agreements to Mediate include provisions that mediation proceedings shall be held in private and shall be confidential, with the exception that any new information, i.e. information that is not already known by the appropriate authorities, regarding injury or neglect to a child or an adult shall be reported. In addition, all communications, verbal or written, between the parties and the mediator are inadmissible in any court hearing. An Agreement to Mediate must be signed for any pre-legal case or a mediation conducted without a court order.

Mediators must have a minimum of 56 hours of mediation training, including 40 hours of basic mediation plus 16 hours of specialized training in mediating child abuse and neglect cases. Additional qualifications include family mediation training or experience, a minimum BA degree, experience with family and/or dependency mediation, observation/co-mediation requirement, and on-going continuing education.

If an agreement is reached during mediation, the mediator is responsible for assisting parties with drafting the written agreement for review by all parties. For pre-legal cases, the parties are responsible for enforcing the terms of any agreement.

In legal cases, the CCA is typically responsible for securing signatures and ensuring that 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 Post Adoption Contact Agreements (PACA), the mediator distributes the Post-Adoption Contact Agreement with contact terms to all parties for review. The Adoption Attorney, or other designated attorney, drafts the agreement, circulates it to all parties and attorneys, and ensures that the agreement is signed by birth and adoptive parents and filed with the Court. A copy of the PACA is also placed in the CYFD case file.

Examples of issues most often addressed in mediation are:

• Custody and parenting issues in pre-legal cases
• Family and/or professional conflict
• Family dynamics
• Abuse and neglect complaint dismissal
• Plea negotiation
• Treatment Plan development and compliance issues
• Services for children and parents
• Foster care
• Temporary and permanent placement of the children
• Visitation by parents, siblings, and other relatives
• Goals for children (e.g., reunification, adoption, independence).
• Change of plan
• Relinquishment/Termination of Parental Rights
• Guardianship
• Post adoption contact terms between birth parents and prospective adoptive parents.

Legal stage, type, history, or severity of the case is not predictive factors regarding whether mediation will be useful. Fact patterns are the easiest way to identify whether a case might lend itself to mediation. Mediation may be useful when:

• The parties believe that the alternative to mediation would be a contested hearing.
• Significant courtroom conflict occurs which tends to hamper the court process.
• Enhancing, improving, or re-establishing relations between the parties is essential to move the case forward.
• Discussions are at an impasse or communication has broken down.
• The parents will benefit from getting an early start on the treatment plan.
• Parents complain about, or will not comply with, the treatment plan.
• Conflict exists around placement or custody issues.
• A child’s permanent placement decision is on hold due to a conflict between the parties.
• Prior arrangements regarding the children have not been successful.

All child abuse and neglect cases may be referred to mediation, from investigations (i.e., pre-legal, prior to a legal filing) to reunification/termination of parental rights, including open adoption referrals until the adoption is finalized.

Most mediations are scheduled prior to the Adjudicatory Hearing in the place of the pre-adjudication meeting or before the Permanency Hearing, in place of the pre-permanency hearing.

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. Effective July 1, 2009, NMSA 32A-4-29 (Section D) requires that a motion be filed for mediation between the biological parent and the prospective adoptive parent to discuss a Post Adoption Contact Agreement (PACA) in conjunction with any TPR filing.

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.

Children’s Court mediators come from a variety of backgrounds including education, social work, counseling, facilitation, and the law. All of the mediators have special training mediating child abuse and neglect cases and are experienced with facilitating group decision-making. The mediators are independent contractors with the New Mexico Administrative Office of the Courts.

Mediation participants may include the Parents, Parents’ Attorneys, GAL, Youth Attorney, Permanency Planning Worker, CYFD Supervisor, CCA, CASA, Treatment providers, children when appropriate, extended family members, and others as identified by the mediator, and agreed upon by the parties, or as ordered by the Court. When mediating post adoption contact agreements, the primary participants are limited to the prospective adoptive parents, identified birth family members (parents, siblings, grandparents, etc.) and youths 14 years of age and older. Other participants are included only as agreed upon by all parties.

Any party involved in a child abuse and neglect case may request mediation, including parents, CYFD staff, Respondent Attorneys, GALs, Youth Attorneys, CASA or the Court. After a legal filing, any interested party, as defined by the New Mexico Abuse and Neglect Act (34A-4-1, 1978) may request mediation.

Feedback from professional participants reported in the 2009 Evaluation Report tells us that mediation:

• Is very helpful and allows for an opportunity to get all issues on the table for discussion.
• Reduces adversarial confrontations and creates a common goal for everyone.
• Preserves the dignity and involvement of family members.
• Helps with the development of and compliance with Treatment Plans.
• Allows all the participants to express their feelings and tell their story. Often, once a party tells their story, they feel like they’ve been heard and it breaks down the barriers to working out a resolution that is beneficial to all.
• Gives the parents a voice and, ideally models good relationships between the social workers and parents.
• Provides an invaluable service to our client families and our Child Protection Staff … keep up the good work!
• Benefits the children, and I believe it provides the non-adversarial solutions for the children.
• Reduces court time and the data supports the effectiveness of mediated cases.
• Gets issues put on the table clearly and concisely and decision are made much better than going through the jungle of court only. THANKS FOR YOU ALL DO.