Mediation in Child Protection Cases Dr. Cynthia Osborne...

Mediation in Child Protection CasesDr. Cynthia Osborne, Ph.D.

Child & Family Research Partnership, The University of Texas at Austin2016 Child Welfare Judicial Conference

November 14-16, Austin

Overview of Presentation

• Introduction to Child Protection Mediation• 2016 Mediation Judicial Survey Results• Case Study: Cost Analysis of Mediation in Travis County

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What Do We Know About Mediation in Child Protection Cases in Texas?

• Child protection mediation uses a neutral facilitator to help parties in a legal dispute reach an agreement, typically regarding a service plan or case resolution, without a formal trial.

• Child protection mediation began in Texas after the passage of the Texas Alternative Dispute Resolution Act in 1987.

• Mediation use expanded from 1997 to 2005, when the Texas Children’s Justice Act (CJA) funded 13 counties to provide mediation.

• During the CJA-funded pilot projects, parties reached full or partial agreement during mediation in 76 percent of cases.1

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1. Bryant, Cynthia. (2010) “Child Protection Mediation in Texas: Past, Present, and Future,” The University of Texas School of Law Mediation Clinic.

• Other reviews of child protection mediation demonstrate:

• Full agreement is reached in 60 to 80 percent of mediated cases.

• Partial agreement is reached in another 10 to 20 percent of mediated cases.

• Across several evaluation studies, cases that went to mediation achieved permanency quicker than cases that did not.2

• Other benefits of mediation can include more open adoptions and increased family engagement in the decision-making process.3

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2. Thoennes, N. (2009). What We Know: Findings From Dependency Mediation Research. Family Court Review. 47(21)3. Bryant, Cynthia. (2010) “Child Protection Mediation in Texas: Past, Present, and Future,” The University of Texas School of Law Mediation Clinic.

What Do We Know About Mediation in Child Protection Cases in Texas?

2016 Mediation Judicial Survey• The Texas Children’s Commission of the Supreme

Court surveyed Texas judges across many jurisdictions in May 2016

• 78 active judges responded, representing 75 courts

• 69 courts use child protection mediation

• Large jurisdictions represented include Travis, Tarrant, Harris, Bexar, and Dallas Counties

• 24 out of 25 Texas Child Protection Courts are represented

5

32%

9%59%

Court Types Represented, N=75

Child Protection Court, n=24County Court at Law, n=7District Court, n=44

Mediation is Widely Used Across Texas Courts

Notes: County Courts at Law not shown because of small sample size.

83%95%

0%

20%

40%

60%

80%

100%

Child Protection Courtn=24

District Court n=44

Mediation By Court Type

Yes

How many CPS mediations occur annually in your jurisdiction? N=61

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The Number of Mediations Conducted Annually Varies Across Jurisdictions

15

14

12

10

10

0 to 10

11 to 25

26 to 50

51 to 100

101+

0 2 4 6 8 10 12 14 16

Notes: Limited to 61 courts that responded to the survey question out of 69 courts that use mediation.

Under what circumstances does mediation occur in CPS cases in your jurisdiction? N=66

9%

29%

4%

58%

NeitherCourt-OrderedAgreement of PartiesBoth

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Most Jurisdictions Use a Combination of Court-Ordered Mediation and Mediation Based on Agreement of Parties


At what phase(s) of a CPS case does mediation occur in your jurisdiction? N=66

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Most Mediations Occur Late in the Case Process

Notes: Limited to 66 courts that responded to the survey question out of 69 courts that use mediation. Respondents selected multiple answers when applicable.

9%

11%

14%

41%

65%

Status Hearing

Adversary

First Permanency Hearing

Second Permanency

Within 30-60 days of Final Hearing

% Indicating Yes

Most Courts Use Mediation to Promote Case Resolution, and Many Also Use Mediation to Reach Agreement on the Service Plan

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Why is mediation in CPS cases used in your jurisdiction? N=66

8%

59%

33%Neither

To reach an agreement regardingservices or a service plan (0%)

To promote resolution of issues priorto Final Trial on the merits

Both


Most Courts Do Not Collect CPS Mediation Data

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Which of the following data does your jurisdiction collect regarding CPS mediations? N=10

16%

84%

Yes No

Does your jurisdiction collect data regarding CPS mediations? N=61


Notes: Limited to 10 courts that collect mediation data out of 69 courts that use mediation.

90%

80%

70%

50%

50%

10%

0% 20% 40% 60% 80% 100%

No agreement reached

Full agreement reached

Partial agreement reached

Who attended

Whether agreement was entered in court

Satisfaction of mediation participants

Yes No

Who mediates CPS cases in your jurisdiction? N=66

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Most CPS Mediators are Attorneys or From a Dispute Resolution Center


80%

35%

11%

5%

Attorney Mediators

Dispute Resolution Center

Non-Attorney Mediators

Retired Judges

Mediators Tend to Have Both Family Law and CPS Experience

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What type of experience do the CPS mediators have? N=66

5%3%

5%

87%

Neither Family Law nor CPSFamily LawCPSBoth Family Law and CPS


Training Practices for CPS Mediators Vary in Texas Courts

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What percentage of CPS mediators in your jurisdiction receive training regarding CPS mediations? N=58


21%

28%

9%

9%

34%

None

Between 0% and 25%

Between 25% and 50%

Between 50% and 75%

More than 75%

Mediator Compensation Varies Across Courts, and Courts Compensate Differently Across Cases

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How are mediators compensated? N=66


20%

32%

52%

No Compensation

Hourly Rate

Flat Fee

% Indicating Yes

If mediators are compensated, where does funding originate? N=66

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Most Mediation Funding Originates From County Budgets for Appointed Attorney Fees


2%

9%

61%

District or County Attorney's Office

DFPS

County Budget for Appointed Attorney's Fees

% Indicating Yes

Responding Judges Feel There is an Adequate Number of CPS Mediators in Their Jurisdiction

6%

28%

56%

10%

InadequateSomewhat AdequateAdequateMore Than Adequate

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How adequate is the number of CPS mediators in your jurisdiction? N=61


Judges Find Many Advantages to CPS Mediation

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What are the advantages of using mediation in CPS cases? N=69

1%

61%

72%

78%

80%

87%

I don't think there are advantages to mediation

Satisfaction of attendees

Parties have opportunity to be heard

Conserves trial resources

Saves time and money

Resolution of cases

Notes: Limited to 69 courts that use mediation.

Disadvantages to Mediation Include Ineffectiveness in Some Types of Cases, While Many Judges Report No Disadvantages

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What are the disadvantages of mediation in CPS cases? N=69

3%

4%

7%

22%

30%

38%

Lack of mediator training

Lack of mediator experience

Costs related to mediation

Agreement may not be in best interest of child

Ineffective in some types of cases

There are no disadvantages to mediation

Notes: Limited to 69 courts that use mediation.

Most Judges are Very Satisfied with Mediation and Find Mediator Quality Very Consistent

41%

25%

29%

5%

Consistency of Mediator Quality, N=61

Very Consistent

Consistent

Mostly Consistent

Somewhat Consistent

Not Consistent

48%

31%

8%13%

Satisfaction with CPS Mediation, N=61

Very Satisfied

Satisfied

Neither Dissatisfied norSatisfiedDissatisfied

Very Dissatisfied

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Most Judges Who Do Not Mediate are Interested in Mediation

• Of the nine respondents who say their jurisdiction does not use mediation, six judges responded that they are interested in mediation.

• The majority of judge respondents use mediation and as a result information on barriers to mediation from this survey is limited.

• Barriers cited by judges whose jurisdictions don’t use mediation include lack of trained mediators, lack of funding, and use of other methods to resolve issues.

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Travis County Cost Analysis: Research QuestionsCFRP was tasked with answering the following for the Texas Children’s Commission of the Supreme Court and Travis County Family Court:

To what extent is mediation a cost-effective strategy for resolving child protection cases?

Additionally,

• How do case characteristics differ between cases that resolve at mediation and cases that go to trial?

• How do case outcomes differ between cases that resolve at mediation and cases that go to trial?

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Child Protection Cases in Travis County• Travis County Family Court is one of twenty child abuse and neglect model

courts established by the National Council of Juvenile and Family Court Judges to implement innovative strategies, including mediation, to improve outcomes for children and families.

• Although mediation is not required, judges in Travis County Family Court strongly encourage parties to conduct mediation before going to trial.

• Mediation is used nearly universally in Travis County child protection cases that are otherwise heading to trial.

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Travis County Cost Analysis: MethodologyCFRP examined the difference in the average (or median) costs associated with cases that went to trial compared to those that were resolved after mediation and prior to trial.

Analytic sample includes:

• Data from cases filed in the Travis County Family Court database after September 1, 2007 and closed before February 2015

• Cases that involved removal of a child

• Only the Temporary Managing Conservatorship (TMC) period was considered

Data Sources:

• DFPS IMPACT data updated through May 2016 , the DFPS Research Database in the Qlikview data management system (Qlikview), the Petition Tracking System (PTS), and aiSmartBench (SmartBench)

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Findings• Travis County resolves 95% of child protection cases

involving removal without a trial.

• Travis County saved up to $2 million annually through mediation in county and state costs.

• Travis County cases that resolved at or after mediation settled 11 weeks sooner.

• Children in Travis County cases resolved at mediation spent 14 fewer weeks in TMC.

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Travis County resolves 95% of child protection cases involving removal without a trial

56%29%

10%5%

Resolved without mediation, n=1003Resolved at mediation, n=515Resolved after mediation, n=177Resolved at trial, n=83

Travis County Family Court Case Resolution September 2007 to January 2015, N=1,778

Source: DFPS Research Database in Qlikview for Travis County Family Court and IMPACT data provided by DFPS, updated through May 2016 .Notes: The median is used as the measure of central tendency for all cost calculations.

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Travis County Saves Between $14,000 and $15,000 Per Case Through The Use of Mediation in County Costs

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$9,549

$10,249

$24,305

$0 $5,000 $10,000 $15,000 $20,000 $25,000 $30,000

Resolved at Mediation

Resolved AfterMediation

Resolved atTrial

Median County Cost of Child Protection Cases by Resolution Type

$14,756 Cost Savings to the County Per Case

$14,056 Cost Savings to the County Per Case

Source: DFPS Research Database in Qlikview for Travis County Family Court and IMPACT data provided by DFPS, updated through May 2016.Notes: The median is used as the measure of central tendency for all cost calculations.

Travis County Saves Between $4,800 and $7,500 Per Case in State Costs Through the Use of Mediation

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$7,237

$9,922

$14,669

$0 $5,000 $10,000 $15,000 $20,000



Resolved atTrial

State Cost of Child Protection Cases by Resolution Type

$7,462 Cost Savings to the State Per Case

$4,747 Cost Savings to the State Per Case

Source: DFPS Research Database in Qlikview for Travis County Family Court and IMPACT data provided by DFPS, updated through May 2016.Notes: The median is used as the measure of central tendency for all cost calculations. State cost differences by group are driven by length of time spent inplacements, the type of placement, and level of care per placement.

$7,237

$9,922

$14,669

$9,549

$10,249

$24,305

$0 $5,000 $10,000 $15,000 $20,000 $25,000 $30,000 $35,000 $40,000 $45,000



Resolved atTrial

Median Cost of Child Protection Cases by Resolution Type

State Costs (Foster Care) County Costs

Median Cost= $38,974



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Source: DFPS Research Database in Qlikview for Travis County Family Court and IMPACT data provided by DFPS, updated through May 2016.Notes: The median is used as the measure of central tendency for all cost calculations.

Overall, Travis County Saves Between $16,000 and $20,000 Per Case Through the Use of Mediation

Cost Differences Are Driven By Foster Care and Attorney Fees

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Source: DFPS Research Database in Qlikview for Travis County Family Court. Includes TMC and PMC cases filed after October 2007 and closed before February 2015. Notes: The median is used as the measure of central tendency for all costs, because of skew in the distribution of costs within groups. Individual line costs differ from overall case cost because of skew in the distribution for certain costs.

Group 1: Resolved without

mediationN=1003

Group 2: Resolved at mediation

N=515

Group 3: Resolved after

mediationN=177

Group 4:Resolved at

trialN=83

Median County Costs Per Case $3,771 $9,549 $10,249 $24,305

Attorney Fees $3,771 $8,482 $9,182 $21,335Mediation $0 $1,067 $1,067 $1,050

Jury $0 $0 $0 $1,920Median State Costs

(Foster Care) Per Case $4,939 $7,237 $9,922 $14,669

Travis County Saved Up to $2 Million Annually Through Mediation in County and State Costs

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Source: DFPS Research Database in Qlikview for Travis County Family Court and IMPACT data provided by DFPS, updated through May 2016 . Includes TMC and PMC cases filed after October 2007 and closed before February 2015. Notes: The median is used as the measure of central tendency for all costs, because of skew in the distribution of costs within groups. Individual line costs differ from overall case cost because of skew in the distribution for certain costs.

County Costs Saved Per Case

State Costs Saved Per Case

Annual Numberof Cases

Annual County Cost Savings

Annual State Cost Savings Per

YearTotal Cost

Savings Per YearGroup 2:

Resolved at mediation

N=515$14,756 $7,462 74 $1,091,935 $549,956 $1,641,891

Group 3: Resolved after

mediationN=177

$14,056 $4,747 25 $351,394 $118,658 $470,053

Without Mediation, Up To 99 Additional Cases Might Proceed to Trial Annually in Travis County

Item Unit Cost Annual Cost in Travis CountyCounty CostsJudge $140,000 annual salary $140,000 Court Operations Officer $48,000 annual salary $48,000 Court Reporter $80,341 annual salary $80,341 Inmate Transport to Trial $2,060 for transport and 6 days of housing x 6 average

annual transports$12,360

State CostsCPS Caseworker $32,976 annual salary x 185 Conservatorship Workers in

Austin regionN/A

Purchased Client Services Varies- Includes counseling, Preparation for Adult Living (PAL) programming; relative caregiver support

N/A

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Source: Texas Tribune Government Salaries, DFPS 2014 Data Book, DFPS Self Evaluation to Sunset Commission, Sept 2013, Meanette Salgado (Court Reporter), Joan Peterson (ADA), Lieutenant John Bartlett (Travis County Sheriff’s Office), Amanda Michael (Lead Financial Analyst).Notes: Number of items is an approximate number based on past years.

Travis County Cases Resolved at Mediation Settled 11 Weeks Sooner

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Median Case Length in Weeks by Resolution Group

55

62 61

73

50

55

60

65

70

75

Resolved WithoutMediation

Resolved AtMediation


Resolved at Trial

Num

ber o

f Wee

ks

Source: DFPS Research Database in Qlikview for Travis County Family Court. Includes TMC and PMC cases filed in the Travis County Family Court after October 2007 and closed before February 2015.

Children in Travis County Cases Resolved at Mediation Spent 14 Fewer Weeks in TMC

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Median Number of Weeks in TMC by Resolution Group

Source: DFPS Research Database in Qlikview for Travis County Family Court. Includes TMC and PMC cases filed in the Travis County Family Court after October 2007 and closed before February 2015.

4652 52

66

0

10

20

30

40

50

60

70

Resolved Without Mediation Resolved At Mediation Resolved After Mediation Resolved At Trial

Num

ber o

f Wee

ks in

TM

C

Cases that Settle at Mediation Frequently Result in PMC to Family or Fictive Kin

35

65%

25%

32%

13%

14%

41%

31%

27%

9%

31%

35%

60%

1%10%

3%

3%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Resolved Without Mediation, n=1230

Resolved At Mediation, n=762

Resolved After Mediation, n=213

Resolved At Trial, n=94

Reunification PMC to Family or Fictive Kin Adoption State PMC Other

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Mediation in Child Protection Cases Dr. Cynthia Osborne...

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