Wednesday, August 12, 2015

The Mediation Process, Initial Impressions. First in a Series

I attended my first mediation session last week as the authorized representative of the adoptive family.  Note: Contrary to the language in OAC rule 5101:2-49-05, which limits participation to county agencies and parents only, parents may chose an attorney or other authorized representative to participate with them

It is difficult, of course, to generalize on the basis of one mediation session, but I came away hopeful about the potential of mediation process to enable many adoptive families negotiate an adequate amount of federal Title IV-E adoption assistance for their special needs children.  In the next several posts, I will offer some observations and suggestions based on my recent experience and conversation with Dan Shook, newly appointed Deputy Director at ODJFS and policy chief over adoption assistance. 

As readers of previous posts may recall, I was quite skeptical of mediation as an effective tool to solve disputes over the amount of adoption assistance.  The skepticism was based on previous experience, before mediation became a recognized option for parents in the amendments to OAC rule 5101:2-49-05, which went into effect on July 1, 2014.

In my conversation with Dan Shook prior to the mediation session, he assured me that the mediators had undergone training and although the process was just underway, he was encouraged by some of successful outcomes in which the parents and county agency had come to an agreement over the children’s adoption assistance.  He urges adoptive families to request mediation when negotiations break down.  He is hopeful that the mediation process will serve to educate the mediators on the radical adjustments and sacrifices that are characteristic of so many special needs adoptions.  Discussions between parents and state officials should promote a better understanding of the crucial importance of adoption assistance to those adults who feel a strong calling to provide permanent, nurturing families for abused and neglected children. 

Dan Shook and I have agreed to share monthly phone calls.  I am convinced that he is fully committed to improving the support for families through adoption assistance.  He will be my source on any internal trends and problems at the state and I will inform him about any potential problems I see about the conduct of mediation from the adoptive families' perspective.   I invite any readers to share their experiences with me, so I can pass them along.  The following are some impressions gained from my recent involvement in a mediation case.  They, of course, are subject to change as the mediation process evolves. 

     1.   Mediators meet with both parties together, and then privately with the parents and the agency.  Adoptive parents know better than anyone, the amount of adoption assistance they need.  Mediation is inherently a negotiation process that aims at compromise.  Suppose the county has proposed $450 a month per child in adoption assistance payments.  The parents bottom line minimum is $650 per child and they have presented information that supports such an amount.  If the parents can afford to propose a higher amount, say $800 or $850, and show a willingness to lower their offer, the mediators will probably try to get the county to agree to an amount around $650. 
      2. Part of the training Dan Shook referred to involved acceptance of the federal Child Welfare Policy Manual as the most authoritative source on the interpretation of federal adoption assistance law.  By implication, Ohio rule 5101:2-49-05, which addresses the negotiation of adoption assistance payments, must be consistent with Section 8.2D.4 of the federal Child Welfare Policy Manual.  We will discuss the significance of this policy position in upcoming post.  Suffice it to say for now, that it provides adoptive parents the opportunity to present their real concerns about the children's needs and their family circumstances as the reasons for seeking a certain amount of adoption assistance.

        3.  It appears that the mediation process will end up discussing monthly family budgets, including loss of income when a parent cannot work outside the home because the children’s extensive care needs or the expense of specialized child care.  At first glance, this looks like a means test, which is not permitted by adoption assistance law.  A future post will discuss how adoptive families can turn monthly family budgets to their advantage, by including all expenses and loss of resources.  Submitting family budgets, which include estimated or actual expenses associated with the adoptive children's needs, along with costs that include the entire family will most likely be a routine part of the mediation process.  It is consistent with a provision in the Child Welfare Policy Manual that states the objection of the negotiation of adoption assistance is to help enable the integration of special needs adopted children into a permanent household. 
        4.  My impression is that personal statements capturing the time, energy and costs  involved in the day to day care of special needs children will also be helpful to humanize discussions of budgets and amounts of support.  Personal descriptions of daily challenges also sheds light on the children’s levels of care.  If there is a wide gap between the amount of foster care payments chosen by the county agency and the amount of adoption assistance proposed for the same children by the same agency, a personal account of daily care responsibilities along with budget information can raise important questions about the potential impact of significant loss in monthly support facing an adoptive family. This topic will also be addressed in a future post. 
        5.   Dan Shook recommended that parents submit information such as that described above, along with statements, arguments and appropriate documents to the mediator(s).  It is best to submit relevant information at least a few days before the scheduled mediation date, so the mediator(s) will have the opportunity to familiarize themselves with the parents’ concerns and policies which support them.
        6.   Three persons from the Bureau of State Hearings participated in the mediation I attended.   My impression is that the use of multiple mediators is a common practice and that it is helpful to the parents. 

        The next several posts will address each of the above points in an effort to help parents prepare for mediation.