If you are involved in a child welfare case brought by the New Jersey Department of Children and Families, you understand first-hand how difficult and stressful the entire process can be. When the New Jersey Child Protection and Permanency (DCPP) agency gets involved in the lives of you and your family, it may feel as though you are losing control of your life, your children, and your reputation. Court proceedings can drag on for months and subject you and your family to seemingly non-stop stress. And lurking over all of that is the question of whether you might also have to face criminal charges for any claimed acts of abuse or neglect.
Especially in situations where you and your spouse, former spouse, guardian, or relative are in the middle of a dispute relating to the welfare of your children, mediation of that dispute can help you all resolve the situation more quickly, with less stress, and with the potential of a better outcome for your children than if a court issues a ruling after a long, painful child welfare proceeding where allegations and other evidence is placed on the record in court. This is why in many cases, it makes sense to consider mediating your child welfare dispute instead of having a judge resolve matters for you.
When Mediation Can and Can't Be Used
Mediation can be used to help resolve child welfare cases that relate to guardianship, kinship legal guardianship, child placement review, or abuse and neglect allegations.
In guardianship and kinship legal guardianship cases, someone other than the parent (a friend or a relative, for example) is seeking to have the legal right to care for the parent's child or children. Child placement review proceedings take place when a child or children may be placed in foster care, whether voluntarily by the parent or involuntarily, as the result of a DCPP investigation. And abuse and neglect situations arise when a parent has been accused of abusing or neglecting a child or children, particularly where the allegation is made by the parent's ex-spouse or partner.
Mediation may not be used in any case in which there is an active domestic violence court order or where one of the parties has an active temporary or final restraining order against the other party. In cases where there is a history of domestic violence but no active domestic violence order, the mediator may ask the judge overseeing the case to decide whether the case should be mediated or not.
Why Consider Mediation
There are a number of significant benefits to mediating a DCPP matter rather than allowing the usual court process to take place.
Mediations Are Confidential
Mediation proceedings take place in private, not in court, and the parties must sign a confidentiality agreement before the mediation goes forward. This helps tremendously in reducing the concerns that most of us would have about discussing what are normally very private matters in the presence of strangers. Where the discussion during the mediation is about allegations of abuse or neglect that have been previously made, the confidentiality agreement protects against further disclosure of those allegations.
This is not to say that mediation can shield someone who commits criminal acts from being held responsible for those actions. Any new allegations of abuse or neglect that are made during the mediation must be reported to DCPP, and information about serious threats of harm to anybody can be referred to the appropriate authorities. But where one party is repeating baseless allegations against another party in a child welfare case, mediation can help keep those baseless allegations out of the public record.
Mediators Are Trained to Help Parties Resolve Disputes
Where judges are required to rule on the law based on facts presented to them, mediators are trained to help disputing parties arrive at an agreement. All child welfare mediators must be trained in basic mediation as well as family mediation, and they follow this up with regular meetings of the New Jersey court administrator Family Practice Division. Mediators are trained to conduct the mediation in a way that is most likely to lead to a productive result. This means trying to get opposing sides to a child welfare dispute to come to an agreement on a resolution that all parties can live with and that the judge will sign off on. And where the central issue is the welfare of children, mediators will also help make sure that any agreement focuses on that and complies with the legal requirements that must be considered where children and families are involved.
Mediated Solutions Tend to Work Better
Another benefit of mediation is that agreements that are the result of the mediation process tend to work out better for all involved than if a judge imposes his or her ruling on both sides. A mediated resolution allows the parties to work together, with the guidance of the mediator, to set aside personal differences and focus on what's best for the children caught up in the dispute. A skilled mediator can help both sides understand this and work through their personal grievances to try to reach a solution that will benefit the children – even if neither party gets everything it wants. When parties understand this, even if they don't get everything that they were asking for, it helps preserve the agreement and makes it less likely that one party or another will breach it in the future.
Mediation Can Resolve Things More Quickly
A third benefit to the mediation process is speed; you can often resolve disputes much more quickly through mediation than you can through the court process. Most mediations take about half a work day at the most (they allocate 3 hours for the mediation itself), and in some cases, if things aren't completely resolved after one mediation session but some progress has been made, the parties can ask the court to continue the mediation on another date in hopes of coming to a final agreement. When the welfare of your children is at stake, being able to come to an agreement on how they will be cared for is something that makes sense to do as quickly as possible.
Mediators for Child Welfare Matters Don't Charge for their Services
Many mediators, such as those in commercial contract disputes, will charge substantial fees for their services. This is not the case for court-appointed mediators in New Jersey child welfare cases. Just as the judge and court personnel don't charge the parties for their services, the court-appointed mediators don't charge either.
How a DCPP Mediation Works
Mediations can be court-ordered, or requested by one of the parties. The benefit of a court-ordered mediation is that it can sometimes be the push that one side needs to sit down and discuss the child welfare dispute in a productive way.
If a court directs the parties to participate in a DCPP mediation, the judge will specify in the order the date, time, and location of the mediation. In most cases, the court will confer with both sides and their attorneys in an effort to set a date, time, and place that works with everybody's schedule. The order will also list the persons who are required to attend.
After this, court staff or the mediator (depending on the New Jersey county) will prepare a Child Welfare Mediation Referral Form. This will list every required participant and their contact information so that everyone who is required to attend can receive advance notice of the mediation. The parents and others ordered to attend the mediation will receive a copy of the New Jersey Child Welfare Mediation Brochure, so everyone has some idea of how the mediation will operate.
Every one who is required to participate will also receive a Child Welfare Mediation Notice, with the date, time, and place of the mediation listed. The court staff will provide the mediator with copies of key court documents at least a week before the mediation session so that the mediator is up to speed on what the parties' major issues are when the mediation occurs.
Sometimes one of the parties – or in some cases, all parties – will ask the judge to allow them to mediate their dispute. Sometimes the mediation request will come from the Child Placement Review Board if they are involved in the matter. In this situation, the judge will decide whether the requested mediation should go forward. If the judge agrees, the court will issue a mediation order, and preparations will proceed very much as they do with a court-directed mediation.
In some cases, if you are the party suggesting that the parties mediate the dispute rather than continuing with court proceedings, it can send a signal to the judge that you are serious about the welfare of your children and show the other side that you are willing to discuss outstanding child welfare issues in a less-confrontational setting that may result in a better and faster outcome. Even if the mediation is not successful, the fact that you made the request shows a certain amount of good faith on your part. Similarly, agreeing to the other side's request for mediation shows the judge that you are more interested in resolving the child welfare issues than you are in taking the other side to court.
Security at the Mediation
If one of the parties to the mediation is in jail, the mediation may still happen. The mediator may be able to secure the temporary supervised release of the individual, with a sheriff or other security officer present, so that the mediation can still take place.
The Mediation Is Just as Important as a Court Appearance
Court rules require judges to treat mediation sessions the same way they treat other court-ordered appearances, such as motions or trials. This means that an attorney who is participating in a mediation that has been ordered by the court is not allowed to leave the mediation to attend other court appearances, and judges from other courts aren't allowed to call the lawyers to their courtrooms during the course of the mediation. This allows all participants in the mediation to focus on the mediation, which increases the chances that the disputes will be resolved.
Because all DCPP mediations are court-ordered, if a party fails to attend the mediation without a good excuse, it can be considered a breach of the court's order, which is never a good situation to find yourself in. So if your child welfare case is scheduled for mediation, treat the mediation date as one that is just as important as any court date.
DCPP at the Mediation
Because the DCPP plays such a central role in child welfare cases, someone from the DCPP with decision-making authority must be present at each child welfare mediation. This means that if there is a case worker assigned to the case who does not have that authority, they must attend along with a supervisor who does have the authority.
Children at the Mediation
Whether children are present at the mediation is ultimately up to the judge or the mediator. Parties can ask that children be allowed to be present (or that they not be allowed), and the court will consider the request and decide accordingly. This depends heavily on the situation and the parties; if there are concerns that discussions during the course of the mediation could become intense, the court may refuse to order that the children attend. In decisions such as these, the court will ultimately rule based on what's in the best interests of the children involved in the case.
What Happens During the Mediation
The mediator has a lot of discretion when it comes to deciding how the mediation is going to take place. While different kinds of situations may call for different types of strategies, it's not unusual for mediators to take the following steps during a mediation:
- Hold an initial meeting with all parties. This may be used to introduce the mediator and to explain what the process will be like, including any ground rules. If the confidentiality agreement has not been signed already, the parties will do so before any substantive discussions happen. In addition, the mediator may state what his or her understanding of the dispute is or may ask the parties to state what they believe the main issues are. This will help everyone involved make sure that they have a common understanding of what the focus of the dispute is.
- Allow each party to present its side of the dispute. The mediator may choose to let each party speak its piece or may interrupt from time to time to ask clarifying questions. The mediator may then ask the other side for its position on the points raised and may take this opportunity to explore how flexible each side is with its opposing positions.
- Work to identify areas of agreement. Many mediated solutions start with the parties realizing that they don't disagree on everything. The mediator may work with the parties to try to find areas where they are not in dispute.
- Separate the parties (also called “caucusing”). It's very common for the mediator to break the parties up, sending them into separate rooms, particularly if the mediator believes it will help matters if the mediator can speak frankly with each party without the other party being present. The mediator will then move back and forth between the rooms, working with each party without the other one present in an effort to help them come to a common solution.
- Put any agreement in writing. If the parties are able to arrive at an agreement on how to resolve the child welfare case, the mediator will put that in writing and make sure both sides agree to what's written down. This is called a Mediated Consent Order, and the form of the order is what the judge will ultimately sign. In most cases, the parties and the mediator will then immediately appear before the judge so the judge can review the order, ask the parties any questions about it, and sign it. When the judge signs the Mediated Consent Order, it then becomes a formal, enforceable court order. Sometimes, however, the parties aren't able to agree on resolving the dispute. In that case, they'll simply agree that the mediation is at an end, and the parties won't appear before the judge.
- Continue the mediation. If some progress has been made and the mediator and parties believe that another mediation session would help, they may agree to ask the judge to order another mediation session. This can happen in situations where the issues are complicated, and the parties or attorneys have other commitments that prevent them from extending the mediation beyond the allotted time.
Why Mediation Works Best When You Have an Attorney Working With You
DCPP disputes and child welfare cases can be extremely difficult to resolve because the parties often care so deeply for the children involved that they take positions that might actually be inconsistent with the best interests of the children. These kinds of disputes are also complicated, and the law and procedures for resolving them can be confusing so someone who hasn't been involved in them before.
When you add mediation to the process, it can be hard for a party that is embroiled in litigation to understand they should all of a sudden sit down with the other side and try to come to an agreement. A skilled attorney can help explain the mediation process, the laws that relate to the child welfare issues that are in dispute, and what the likelihood is of achieving a quick and satisfactory resolution of those issues if the parties continue with the court proceedings.
The attorney can also help parties evaluate suggestions that the mediator makes about resolving the matter and can offer settlement ideas to the mediator that are likely to be accepted by the judge. In short, working with a skilled and experienced attorney during a child welfare mediation can make all the difference when it comes to arriving at an outcome that benefits those most impacted by DCPP disputes: your children.
How Joseph D. Lento Can Help
Joseph D. Lento has years of experience helping parents in New Jersey deal with child welfare, child custody, and DCPP issues. Where child welfare allegations lead to criminal charges, he and the Lento Law Firm Team know how to fight for their client's rights. Joseph D. Lento and the Lento Law Firm Team understand the laws, procedures, and court system in New Jersey. They also know how very important this is to you and to your child or children that matters are resolved in a way that is in their best interest.
In addition to his experience with in-court disputes, Joseph D. Lento has been involved in many mediations and has seen first-hand how a well-conducted mediation can often result in the successful resolution of a dispute. He and the Lento Law Firm Family Law Team have the experience to be constructive participants when their client's issues are mediated, leading to faster and better results.
If you are involved in a DCPP child welfare dispute, call Joseph D. Lento today at 888.535.3686, or schedule a confidential consultation with the Lento Law Firm Family Law Team by using our online form. We are here to listen and help.