Finding a Third Option

The Experience of the London Child Protection Mediation Project

Alison Cunningham & Judy van Leeuwen (2005).
The results of a pilot project testing the feasibility of child protection mediation in London, Ontario, Canada. Funded by Legal Aid Ontario, the Department of Justice and the Ministry of Children and Youth Services.

Download the Report

Finding a Third Option (1.4 MB)

The London Child Protection Mediation Project

The London Child Protection Mediation Project offered our community the opportunity to explore how child protection mediation might help resolve disputes between a child-protection agency and its clients. Among disputed court applications at the Children's Aid Society of London and Middlesex, about 20% of cases get bogged down in the court process, delaying resolution, leaving children in limbo, elevating costs, and adding to the spiralling number of child welfare cases in the family courts. Parties in these cases did not consent to the measures proposed by the CAS -- their first option -- but neither were they enamoured of the court process -- the default option -- as a way of resolving the dispute. When presented with mediation as a third option, many were willing to try.

In this 210-page report, we conclude:

• child protection mediation is one of several alternative dispute resolution (ADT) techniques viable for use in the child protection system

• select cases carefully, for amenability to this ADR technique (as opposed to others) and likelihood of reaching an agreement

• "how" we do mediation is a more important question than "if" we do mediation

17 recommendations are offered and guidance is provided for communities contemplating the creation of a child protection mediation service:

Discussion Guide for Communities Implementing Child Protection Mediation: The Community Checklist from the London Child Protection Mediation Project (2005)

Table of Contents

1. Introduction and Overview

• Child Protection Mediation

• London Child Protection Mediation Project

• Overview of the Report

• Answers to Research Questions

• Conclusions

  • Mediation is a Viable "Third Option"

  • Select Cases Purposefully

  • "How" we do Mediation is Important

2. Child Protection Mediation

• Why Child Protection Mediation?

• Strengths and Concerns

• A Tale of Two Coasts

3. London Child Protection Mediation Project

• Project Funders

• Project Partners

• Advisory Committee

• Goals of the Project

• Outreach to the Community

• Rationale for Focus on Supervision Orders

• Generalizability of Findings

4. The Referral Process

• Eligibility Criteria

• Referral Sources

• Case Vetting

• Definition of a Party to the Mediation

• Securing Consent to Participate

• Declining Mediation

• Time Spent Processing Referrals

• Role of the Project Coordinator

• Supervision Orders

5. The 40 Cases

• Referrals

• Baseline Opinions

• Legal Representation

• Differences Between Comparison and Mediation Groups

6. The 20 Mediations

• Mediators

• Process of Mediation

• Settlement Rate

• Views of Child Protection Workers

• View of Family Parties

• Follow-up

7. Comparative Outcomes

• Case Processing Outcomes

• Relative Costs

• Views of Family Parties

• Follow-up of Cases

8. Stakeholder Feedback

• Stakeholder Survey of Advocacy Groups

• Survey of Ontario CASs

• Follow-up Opinion Survey of CAS Staff

• Reform Suggestions Offered by Family Parties

9. Overall Reflections

• Ten Observations

  • Mediation is not the panacea to cure court backlog

  • Funding must be addressed

  • Training for prospective mediators will be crucial

  • The vulnerabilities of some CAS clients should be safeguarded

  • Process is just as important as the outcome

  • We need to help people understand the legal process better

  • The finding of "need of protection" should be discussed beforehand

  • The power imbalance is not easily evened

  • We need to learn when mediation is the best approach

  • Conditions of implementation are important

• Community Checklist for Mediation Planning

Appendix A: Methodology

Appendix B: Factors Potentially Driving Increases in Contested Court Applications

Appendix C: Job Description for Mediators

Appendix D: Template for Mediation Contract

Appendix E: Draft Job Description for Mediation Coordinator

Appendix F: Post-mediation Survey for CAS Clients

Community Discussion Guide

Ultimately, after our experience in London, we cannot recommend one model of mediation appropriate for anywhere in Ontario or Canada. Instead, we have created a checklist as a tool for communities contemplating the adoption of mediation:

Discussion Guide for Communities Implementing Child Protection Mediation: The Community Checklist from the London Child Protection Mediation Project

Like any other intervention, mediation is not inherently good or bad, effective or harmful. What is important is HOW we do mediation. At a system level, experience in other jurisdictions has shown that child protection mediation can take off and be successful, or it can fizzle. What is the difference? Attention to the who, what, where, when and why of mediation - at the outset - may pay off in the long run with a mediation strategy that meets local needs. Taking the time to work through these issues will pay off. The checklist can facilitate a group discussion, or perhaps many discussion, on how child protection mediation can be used to greatest effect in your community.