It is preferable that all parties appear in person for mediation. Mediation works best when parties can benefit from face to face dialogue. Under exceptional circumstances, when telephonic participation is vital, the requesting party must contact the regional coordinator or the assigned mediator at least 48 hours prior to the scheduled mediation date to determine if telephonic participation is possible.

All children 14 years old or older should participate in the mediation process with a Youth Attorney present, unless the parties have agreed that their participation is not appropriate. If the referral indicates concerns about the child’s ability to be included in the mediation process, the mediator will clarify these concerns with the Youth Attorney or GAL (if the child is under 14 years old). Typically, a child under 11 will not participate directly in the mediation process; however, they may participate in the process if the GAL thinks it is appropriate. The mediator works closely with all parties to reach consensus as to the appropriate level of participation by children in mediation.

Attorneys must attend mediation when under a court order. Participating attorneys are usually the CYFD attorney, respondent attorneys, Guardian ad Litem, and youth attorneys (for youth 14 years or older).

The parties are responsible for enforcing the terms of any agreement reached by parties during a pre-legal mediation (i.e., at Investigation stage). An agreement reached during a legal mediation (i.e., once the child is in custody) is monitored and enforced by the Court. Post Adoption Contact Agreements filed as part of the final Open Adoption Decree are enforceable by the Court.

The regional program coordinator maintains a list of qualified mediators, approved by the Implementation Team. The list is distributed to all members of the Implementation Team, Department attorneys, Respondent attorneys, etc. Mediators are considered in alphabetical order and appointed at the discretion of the regional program coordinator.

Mediation may help to avoid prolonged, contentious legal proceedings that can extend a child’s stay in foster care.

By improving communication among the various parties, mediation can minimize frustration, delay and conflict between parents and service providers.

Because families are given an active and respected voice in overcoming obstacles to permanency, child welfare mediation can reduce their feelings of alienation, confusion, distrust and apathy.

Parents who become more engaged in permanency planning for their children are better able to assist in moving these cases to a speedier and positive resolution.

Once the court has ordered mediation, canceling the scheduled mediation requires either the court’s approval or by agreement of all the parties.

A Motion and Order to Vacate the Mediation is filed directly with the court and a signed copy must be sent to the regional coordinator.

In the case of an emergency situation such as a serious illness or hospitalization, contact the regional coordinator or assigned mediator, as soon as possible.

Since mediation dates are generally calendared in court and parties have agreed to the date, the parties must agree to a change of date. The person requesting the change must first notify the regional local coordinator or the assigned mediator and then contact the other parties to coordinate a new date. The original mediation date stands until the parties have agreed to a new date and the requester contacts the regional local coordinator or assigned mediator with the new date. The mediator will send notice of the change to all interested parties.

When the attorney requesting the change wants to continue a court ordered mediation, a motion and order needs to be submitted directly to the court. The original date stands until the court has approved the motion.

All Children’s Court mediation sessions are conducted either by court order or with a signed Agreement to Mediate. As consistent with the New Mexico Mediation Procedures Act, 44-7B-1 et. seq. NMSA, Orders for Mediation and Agreements to Mediate include provisions that mediation proceedings shall be held in private and shall be confidential, with the exception that any new information, i.e. information that is not already known by the appropriate authorities, regarding injury or neglect to a child or an adult shall be reported. In addition, all communications, verbal or written, between the parties and the mediator are inadmissible in any court hearing. An Agreement to Mediate must be signed for any pre-legal case or a mediation conducted without a court order.

Mediators must have a minimum of 56 hours of mediation training, including 40 hours of basic mediation plus 16 hours of specialized training in mediating child abuse and neglect cases. Additional qualifications include family mediation training or experience, a minimum BA degree, experience with family and/or dependency mediation, observation/co-mediation requirement, and on-going continuing education.

If an agreement is reached during mediation, the mediator is responsible for assisting parties with drafting the written agreement for review by all parties. For pre-legal cases, the parties are responsible for enforcing the terms of any agreement.

In legal cases, the CCA is typically responsible for securing signatures and ensuring that the agreement is filed with the court and/or entered into the court record. The Court will monitor the enforcement of any agreement between the parties and the CYFD.

For Post Adoption Contact Agreements (PACA), the mediator distributes the Post-Adoption Contact Agreement with contact terms to all parties for review. The Adoption Attorney, or other designated attorney, drafts the agreement, circulates it to all parties and attorneys, and ensures that the agreement is signed by birth and adoptive parents and filed with the Court. A copy of the PACA is also placed in the CYFD case file.

Examples of issues most often addressed in mediation are:

• Custody and parenting issues in pre-legal cases
• Family and/or professional conflict
• Family dynamics
• Abuse and neglect complaint dismissal
• Plea negotiation
• Treatment Plan development and compliance issues
• Services for children and parents
• Foster care
• Temporary and permanent placement of the children
• Visitation by parents, siblings, and other relatives
• Goals for children (e.g., reunification, adoption, independence).
• Change of plan
• Relinquishment/Termination of Parental Rights
• Guardianship
• Post adoption contact terms between birth parents and prospective adoptive parents.

Legal stage, type, history, or severity of the case is not predictive factors regarding whether mediation will be useful. Fact patterns are the easiest way to identify whether a case might lend itself to mediation. Mediation may be useful when:

• The parties believe that the alternative to mediation would be a contested hearing.
• Significant courtroom conflict occurs which tends to hamper the court process.
• Enhancing, improving, or re-establishing relations between the parties is essential to move the case forward.
• Discussions are at an impasse or communication has broken down.
• The parents will benefit from getting an early start on the treatment plan.
• Parents complain about, or will not comply with, the treatment plan.
• Conflict exists around placement or custody issues.
• A child’s permanent placement decision is on hold due to a conflict between the parties.
• Prior arrangements regarding the children have not been successful.

All child abuse and neglect cases may be referred to mediation, from investigations (i.e., pre-legal, prior to a legal filing) to reunification/termination of parental rights, including open adoption referrals until the adoption is finalized.

Most mediations are scheduled prior to the Adjudicatory Hearing in the place of the pre-adjudication meeting or before the Permanency Hearing, in place of the pre-permanency hearing.

Mediation may also take place when the judge has decided that children should not be returned home and there is a new plan for adoption. Effective July 1, 2009, NMSA 32A-4-29 (Section D) requires that a motion be filed for mediation between the biological parent and the prospective adoptive parent to discuss a Post Adoption Contact Agreement (PACA) in conjunction with any TPR filing.

Mediations typically take place at either the local judicial district courthouse or CYFD offices. Mediators may also schedule mediations at other locations with agreement by all parties.

Children’s Court mediators come from a variety of backgrounds including education, social work, counseling, facilitation, and the law. All of the mediators have special training mediating child abuse and neglect cases and are experienced with facilitating group decision-making. The mediators are independent contractors with the New Mexico Administrative Office of the Courts.

Mediation participants may include the Parents, Parents’ Attorneys, GAL, Youth Attorney, Permanency Planning Worker, CYFD Supervisor, CCA, CASA, Treatment providers, children when appropriate, extended family members, and others as identified by the mediator, and agreed upon by the parties, or as ordered by the Court. When mediating post adoption contact agreements, the primary participants are limited to the prospective adoptive parents, identified birth family members (parents, siblings, grandparents, etc.) and youths 14 years of age and older. Other participants are included only as agreed upon by all parties.

Any party involved in a child abuse and neglect case may request mediation, including parents, CYFD staff, Respondent Attorneys, GALs, Youth Attorneys, CASA or the Court. After a legal filing, any interested party, as defined by the New Mexico Abuse and Neglect Act (34A-4-1, 1978) may request mediation.

Feedback from professional participants reported in the 2009 Evaluation Report tells us that mediation:

• Is very helpful and allows for an opportunity to get all issues on the table for discussion.
• Reduces adversarial confrontations and creates a common goal for everyone.
• Preserves the dignity and involvement of family members.
• Helps with the development of and compliance with Treatment Plans.
• Allows all the participants to express their feelings and tell their story. Often, once a party tells their story, they feel like they’ve been heard and it breaks down the barriers to working out a resolution that is beneficial to all.
• Gives the parents a voice and, ideally models good relationships between the social workers and parents.
• Provides an invaluable service to our client families and our Child Protection Staff … keep up the good work!
• Benefits the children, and I believe it provides the non-adversarial solutions for the children.
• Reduces court time and the data supports the effectiveness of mediated cases.
• Gets issues put on the table clearly and concisely and decision are made much better than going through the jungle of court only. THANKS FOR YOU ALL DO.

You have the right to have an attorney present at the mediation with you. If you already have an attorney or the court has appointed one for you, the attorney must be present. If your intention is to retain an attorney, the mediation will not convene unless your attorney is present.

If you attend the mediation without an attorney, neither the mediator nor the other attorneys present will be able to provide you with legal advice.

For parents and guardians, remember that even though you may be required to go to mediation, it is not like court. It is more informal, and there are no rules of procedure or evidence. You and the other people attending the mediation will decide what you all want to talk about. The program has a brochure to help prepare families for mediation. For anyone attending mediation, here are a few tips that will help:

• Be prepared.
• Be willing to listen carefully to others.
• Try not to interrupt.
• Be willing to talk and participate.
• Be willing to consider new ideas.
• Come with an open mind.

Mediation will give you an opportunity to express yourself and to be heard by the other parties outside of the formal court setting. You know your children and family situation better than anyone else. Mediation allows you to share ideas and help make a plan for the care and protection of your child.

Most mediation sessions are scheduled for one to two hours, although cases that involve permanency issues may last longer and include multiple meetings.

In New Mexico, the issues and matters discussed during the mediation are confidential when conducted under a court order or with a signed Agreement to Mediate. You will be asked to sign an Agreement to Mediate if your mediation is not court ordered. An exception to this is that professionals involved in the mediation must report new instances of child abuse or neglect or threat of physical harm. Any discussion about previously reported abuse or neglect remains confidential.

These comments were taken from surveys filled out by parents/guardians after their mediation:

• I feel I have a better understanding of what is going on and what is expected of me.
• Everyone listened and put in their thoughts. No one was judgmental on the situation.
• Good decisions were made through peaceful means.
• We got an understanding of what everyone’s points of views are.
• I finally got someone to hear my cries for help. Thank you.
• I felt like I know a lot more information pertaining to my children and our case.
• I had a chance to speak openly about the situation concerning my child.
• I left with a better understanding of birth parents feeling and with where this might go.
• I got a sense that I was heard and acknowledged in mediation.

People talk about anything that can help them reach agreement about what is best for the children and family. For example, you might discuss legal issues, temporary and permanent placement options for the children, visitation by parents, siblings, and other relatives and arrangements for supervision and transportation, services for children and parents (counseling, medical, etc.) and compliance with treatment plans.

Mediation is not the place to dwell on who is to blame for family problems or to vent personal issues that do not serve to move the decision-making process forward.

The mediator encourages good communication and an atmosphere of respect. They will not take sides, give advice or make decisions for others. The mediator makes sure everyone gets a chance to voice their concerns. This helps people explore and negotiate their own solutions. If the parties can agree on a solution, the mediators will assist all the parties to draft a written agreement.

The mediator may meet with you and the other parties by phone or in person before the mediation to confirm the meeting and answer any questions you may have about mediation.

Once everyone has arrived at the mediation session, the mediator will ask everyone to introduce themselves. The mediator will then help the group identify the issues to be discussed during the mediation. After this, the mediator will help the parties to discuss the issues, identify options and explore possible solutions.

The mediator may meet with individual parties or with the group as a whole in discussing these issues.

If an agreement is reached, the mediator will review the terms with everyone and assist the parties with drafting a written agreement, if appropriate.

The mediator will notify CYFD and the court if this is a legal case.

If an agreement is reached during mediation, the mediator is responsible for assisting parties with drafting the written agreement for review by all parties. In legal cases, the CYFD Attorney is typically responsible for getting signatures and making sure the agreement is filed with the court and/or entered into the court record.

The Court will monitor the enforcement of any agreement between the parties and the CYFD. For pre-legal cases, the parties are responsible for enforcing the terms of any agreement.

Children’s Court Mediation is a confidential meeting with a specially trained unbiased person who helps parents talk about issues related to the safety and well being of their children. The meeting is informal, but structured. Sometimes mediation is used instead of going to court. Other times it is used to help participants understand and resolve some of the issues ahead of time and save time in court.

There is no cost to the participants.

Mediation may occur at several different stages in a child abuse/neglect case. It depends on the court and on the case.

In many courts, mediation takes place before the Adjudicatory Hearing. (The hearing where the judge decides whether abuse or neglect actually occurred.) One purpose of mediation at this point in the case is to talk about why the child was removed. The other purpose is to develop a treatment plan for the child and parents that will help reunite your family, or do whatever is best for the child. That treatment plan is presented to the judge.

Mediation might also happen before the Permanency Hearing. (The hearing where the Judge decides whether or not the child will be returned home.) This mediation session focuses on the best interest of the child, whether the permanency goal recommended to the judge will be to return the child home or change the plan to some other permanency arrangement.

Mediation may also take place when the judge has decided that children should not be returned home and there is a new plan for adoption. A case may be referred to an Open Adoption mediation only if both the birth parents and the prospective adoptive parents are interested in discussing the possibility of an open adoption. The mediator meets with both families to discuss possible terms for contact after the adoption. If attorneys are involved, they will assist their clients in the mediation process and review any draft agreement. A final agreement, once accepted by the court, will become part of the adoption decree.

In most courts, mediation may occur before the case even goes to court. At this point, the purpose is to come up with a plan that keeps children safe and prevent them from having to be removed from home.

Mediations typically take place at either the local judicial district courthouse or CYFD offices. Mediators may also schedule mediations at other locations with agreement by all parties.

The Children’s Court mediators are experienced and have special training mediating child abuse and neglect cases. They are independent contractors with the New Mexico Administrative Office of the Courts. They do not work for the District Courts or CYFD.

Parents and their attorneys, CYFD attorney, child’s attorney (Guardian ad Litem), youth attorney (for youth 14 years and older) and CYFD caseworkers are the main people that will attend the mediation. Sometimes, other parties such as relatives or support people may also attend. Other people may attend only if everyone agrees.

Children under 14 years or older may attend with approval of their attorney. All children 14 years or older should participate in the mediation with their attorney present, unless everyone has agreed that their participation is not appropriate.

Open adoption is an adoption that allows for an ongoing relationship among the birth family, adoptive family, and adopted child. Open adoptions may include extended family members such as birth grandparents and siblings.

There are many degrees of openness ranging from a very limited exchange of information between birth and adopting parents, such as regular exchanges of letters and photos (either directly or through a third party) to actual contact between birth parents and adopted child.

In every adoption with any amount of openness, it is important that the birth family and adopting family have the same understanding of what “open” means and that they remain committed to meeting the needs of the child throughout the child’s life.

Open adoption mediation refers to a process for mediating of a Post Adoption Contact Agreement (PACA). This is an agreement between the birth parents and prospective adoptive parents that allows for some type of contact between a child’s adoptive family and members of the child’s birth family after the adoption has been finalized. Consistent with New Mexico Statute 32A-5-35, a PACA is filed as part of the final Open Adoption Decree and is enforceable by the Court.

PACA mediation is a voluntary, confidential process facilitated by a specially trained and experienced mediator. The mediator helps parties explore and consider different types of contact that support the safety and best interests of the child. The mediator does not make decisions for the parties nor does the mediator give legal advice or psychological counseling.

Usually, mediation involves the adopting parent, the birth parent and the mediator. In some cases, the children, other siblings or their families, grandparents, and/or other people important to the child may be a part of the mediation.

Open adoption mediations are conducted consistent with the New Mexico Court Improvement Project (CIP) CIP Best Practices for Open Adoption and Mediating Post Adoption which includes the CYFD Guidelines for Completing a Mediated Open Adoption.

Once there is a plan of adoption, an identified adoptive family and the birth family and prospective adoptive family have agreed to mediation, a referral is made to the regional coordinator.

Parents and their attorneys, CYFD, the GAL, Youth Attorney, CASA or the Court may request mediation. A stipulated court order is filed by the CYFD Attorney.

The regional coordinator assigns a mediator to the case. The mediator contacts all the interested parties to schedule an initial meeting and to answer questions about how mediation works.

The mediator meets first with all interested parties and their attorneys to review the mediation process and to clarify issues, including who is responsible for writing the final PACA. All parties sign a Mediation Agreement.

The mediator then meets with birth and adoptive families only to discuss and identify contact terms and conditions. The mediator is responsible for distributing a Post-Adoption Contract Agreement to all parties and their attorneys for review. If parties are unable to reach an agreement, the mediator will distribute a No Agreement Letter.

The Adoption Attorney or other designated attorney drafts a final agreement, circulates it to all parties and their attorneys, and ensures that the agreement is signed by birth and adoptive parents and is filed with the Court as part of the final adoption decree. A copy is also placed in the CYFD case file.

Follow-up mediation sessions may be scheduled to resolve outstanding issues. The mediator may also reconvene all parties to finalize the PACA.

In addition to the birth and prospective adoptive parents, a copy of the PACA will be placed in the CYFD case file, as per CYFD Guidelines. Consistent with New Mexico Statute 32A-5-35, all Post Adoption Contact Agreements are filed, as part of the final Open Adoption decree, and are enforceable by the Court.