From left: Julia A.B. Pearson and Hon. David G. Sacks (ret.)
What is permanency mediation?
Permanency mediation is a process available for children in the state foster care system to resolve their cases without trials. Permanency mediation is a specialized dispute resolution approach that addresses the unique issues involved in care and protection trials and averts the need for lengthy and adversarial termination of parental rights trials. This model uses an independent third party to mediate a child-centered, family-focused approach to permanency planning. By giving parents an opportunity to assist in the development of cooperative plans for their child’s future, permanency mediation empowers families, preserves a child’s significant relationships and helps children achieve permanency sooner.
Alternative or appropriate?
“ADR” is often thought of as
alternative dispute resolution, but ideally it is
appropriate dispute resolution, and the use of permanency mediation is indeed an
appropriate form of dispute resolution. The use of this particular process for families in the child welfare system is an excellent example of
“Let the forum fit the fuss,” as observed by the late Harvard Professor Frank E.A. Sander.
How is permanency mediation funded in the commonwealth, and how is it provided?
Over the past several years, there has been strong legislative support for these services, resulting in a fiscal year 2019 appropriation of $250,000 to a present appropriation of $500,000. This funding has allowed the Trial Court to contract with Plummer Youth Promise based in Salem. Services are currently available in the Berkshire, Franklin, Hampden and Hampshire divisions of both the Juvenile and Probate and Family courts; and in the Essex, Middlesex, Norfolk, Suffolk and Worcester divisions of the Juvenile Court, with future expansions contingent on increased funding. The successful funding efforts have been greatly aided by the Massachusetts Coalition for Permanency for Children and the Trial Court’s Standing Committee on Dispute Resolution. The availability of these services benefits from strong support from the Trial Court, the Department of Children and Families (DCF) and the Committee for Public Counsel Services (CPCS).
The average cost of an individual permanency mediation case is approximately $4,000. In 2017, co-author Judge Sacks, when he chaired the Standing Committee on Dispute Resolution, conservatively estimated to the General Court that a contested trial in the Juvenile Court would cost the commonwealth at least $21,000. That estimate included the use of permanency mediation in 66 hypothetical, three-day trial cases involving two siblings. This could result in saving the commonwealth $1,368,692, taking into consideration the cost for attorneys and expert witnesses and the 24/7 cost for foster care. Clearly, both the families and the commonwealth reap benefits from the use of permanency mediation, including that an average mediated case takes three to six months, which is a sooner resolution than a trial and possible appeal.
How does permanency mediation work?
This form of mediation focuses on the unique issues involved in child welfare cases. The model utilizes an independent third party to facilitate a child-centered, family-focused approach to permanency planning. Two permanency mediation approaches are used in Massachusetts: the family consultation team and cooperative permanency planning. Each of these approaches is child-centered, family-focused and collaborative, and works to build sustainable relationships between the significant people in a child’s life.
Why is there a need for permanency mediation?
Simply put, the children and their families in child welfare cases deserve the soonest possible resolution to their cases as a matter of simple humanity. One example of the need for these services is care and protection cases in the Juvenile Court increased between fiscal year 2012 and fiscal year 2019 by 22.5% percent. The impact of COVID-19 has only added to the challenges of processing cases. For children and families, litigation delays, despite valiant efforts by the court system, mean that many children are losing their childhood as they are in foster placements awaiting permanency. Children need and deserve a safe, stable, permanent place to grow up. Children should not have to worry about with whom they will be growing up.
The longer children remain in temporary foster care, the greater the trauma for children and the higher the cost for the commonwealth in the form of greater costs for courts, DCF and CPCS. Also to be weighed are the future financial and other costs for services for today’s children in the foster care system. When they reach adulthood, sadly, they may enter the criminal justice and/or mental health systems at least in part due to their lengthy foster care experiences.
How does permanency mediation help?
Permanency mediation is a proven, evidence-informed, non-adversarial, alternative means to use a child-focused process that brings together DCF, parents, children, family members, attorneys and foster parents to develop a permanency plan for children with the goal of reunification, adoption or guardianship.
The children and families in the foster care system and involved with DCF are the most vulnerable. When children are removed from their parents, even when necessary to ensure their safety, that separation is harmful to the entire family.
The traumatic effects of this loss often manifest in children as hopelessness and behavioral challenges, which increase the children’s need for clinical interventions, as well as in families as repeated cycles of difficulty. Further research shows maintaining and establishing safe critical bonds is a matter of healthy brain development. Timely resolution of a child’s experience not growing up in a permanent home mitigates the trauma that can persist for generations.
How has permanency mediation worked in actual cases?
The use of permanency mediation is a nationally recognized process that has historically shown an average success rate of 60% percent. This form of dispute resolution saves money and resources and has the promise of often achieving timely permanence for children in foster care.
Turning to our actual experience in Massachusetts, the Plummer program has recorded 226 cases involving 377 children, and of those, 166 cases have actually engaged in mediation involving 276 children.
Here are two case examples that were mediated to successful resolution:
In the first case, a child was in foster care for several years. Through mediation, a trial was not necessary, the child was reunited with his mother and siblings, and the parents improved their relationship.
In the second case, two sisters maintained in-person and video visits with their mother who had mental health and substance misuse issues. The children were able to be adopted by their foster mother who had cared for them for several years. The mediation process took five months and was completed before trial.
Who are the permanency mediators? There are currently 39 trained mediators. Each of these providers has previously been fully trained in basic mediation. They participated in an additional 36-hour permanency mediation training and completed a mentoring case. Another training will be offered in spring 2023.
Concluding thoughts
Permanency mediation is indeed an
appropriate form of dispute resolution for cases involving children mired in foster care. The efforts of the past several years have reaped benefits including developing a trained and skilled pool of specially qualified permanency mediators to quickly be assigned cases; establishing advisory boards with representatives from all stakeholders (courts, DCF, CPCS) to collaboratively oversee and ensure quality services; and developing a program database to provide data-driven management reports to the Trial Court while tracking and building evidence of success. Permanency mediation has adapted to COVID-19 by having special Zoom training for mediators so that sessions can take place virtually.
Where can more information be found?
If you have an interest in becoming a permanency mediator or have further questions about permanency mediation, please contact Julia Pearson at
PermMediation@plummeryouthpromise.org. Additional information can be found at
https://plummeryouthpromise.org/our-programs/permanency-mediation-services.
Julia A.B. Pearson is the program director at Plummer Youth Promise/Permanency Mediation Services. She manages the Court-Connected Permanency Mediation Program for the courts in the Commonwealth of Massachusetts and provides training and supervision of permanency mediation.
Hon. David G. Sacks (ret.), a member of the Massachusetts Bar Association’s Dispute Resolution Section Council, sat in the Hampden Probate and Family Court from 1986-2020, and was the chair of the Trial Court’s Standing Committee on Dispute Resolution from 2016-2020. He is a Continuing Access to Justice Fellow working with Senior Partners for Justice, including providing pro bono conciliations, and is a private dispute
resolution provider. He can be reached at davidsacksadr@outlook.com.