Wednesday, December 17, 2014

Chapter 2, Part 8: Mediation

It seems that I have neglected to discuss the mediation process that was added to OAC rule 5101:2-49-05(H).  Mea Culpa.  The Mediation process is limited to disagreements over negotiating the amount of adoption assistance.  Mediation is not available to settle eligibility disputes and other issues.

If the adoptive parents and county agency cannot agree on an amount of adoption assistance after 30 days from the, the initial meeting, the parents may request a “state mediation conference.”  Parents seeking mediation request or download form  JFS 01470 "Adoption Assistance State Mediation Conference Request" (rev.1/2014). The form can be found on the Ohio Job and Family Services Web site.  Click on M under Index of Services.  Click on emanuals.  Click on Family Children and Adult Services Manual.  Click on Forms.  Fill out the forms and send it to Ohio Department of Job and Family Services, Bureau of State Hearings. I would send it to Elizabeth Foster at Elizabeth.Foster@jfs.ohio.gov.  If you need to call her for instructions, you can reach her at 614-728-8416.

The mediation conference is supposed to take place within 30 days.  The conference is limited to the state mediator, the adoptive parents and county agency representatives(s).  Apparently, advocates and attorneys are not permitted to attend.  You should ask the state to confirm that.  If parents may not bring a representative, then I would recommend that they clearly indicate to the state that the agency should not have any attorneys within its delegation, either.  Further, since agencies have the quaint habit of loading up the team bus and bringing a gang to the meeting, parents should press for an agency delegation of no larger than 2.  Being outnumbered by a posse of agency representatives is intimidating and inefficient.  Everyone feels the need to throw in their opinion and an already difficult discussion wanders all over the place.

According to the rule, if an adoption assistance agreement for a particular payment rate is reached, it may not be amended unless there is a change in the child’s needs or family circumstances.  This provision is not really restrictive because parents' reasons for seeking an increase in adoption assistance are  almost always based upon increases in the child’s care needs and/or changes in family circumstances.

I do not know very much about the nature and effectiveness of the current version of mediation conferences.  Dan Shook told we that at least some had gone well.  I didn't press him for details.  

Adoptive parents might consider mediation in cases where the agency is refusing to discuss the child’s overall needs and family circumstances as the parents define them.  In one recent case, the agency limited discussion with the parents to 15 minutes.  Some agencies also reject negotiation in favor of an approval process in which its representatives take a restrictive view of needs, contrary to federal and state policy and/or ignore the adoptive parents’ concerns about family circumstances.  Faced with such intransigence and failure to failure to comply with current law, parents might consider mediation.

In sum, adoptive parents might turn to mediation in an attempt to get negotiations, unstuck.  Requesting mediation might put some pressure on an agency that is already under some pressure to finalize the adoption.  The only thing to lose is time and time might be an family’s ally, particularly if they receiving foster care payments.

In preparation for mediation, parents should be ready to show how the agency has failed to comply with negotiation requirements in the federal Child Welfare Policy Manual and OAC rule 5101:2-49-05.  See previous blog posts in Chapter 2.  They might point that the provisions referring to mediation in OAC 5101:2-49-05 actually refer to the failure on an “initial negotiation meeting” which indicates that the state anticipates a substantive discussion will take place and that the parents will be equal and active participants. 

Parents should also bring documentation supporting the child’s needs and family circumstances that are of concern to them and shape their views of why adoption adoption is needed and how much is sufficient.