A PROSPECTIVE CHILD PROTECTION MEDIATION PROGRAM FOR CHILD &

FAMILY SERVICES - PEI

A Project Report
Submitted in Partial Fulfillment of the Requirements of
Practicum for the Degree of Master of Social Work
University of Calgary

By
Miriah McIsaac
Charlottetown, Prince Edward Island
March 2019

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PREAMBLE

This report presents a summary of research conducted as part of a 500-hour MSW

practicum, from November 2018 - March 2019, exploring the potential role, suitability, and

efficacy of a Child Protection Mediation (CPM) Program within Child Protection Services in

Prince Edward Island. This project was overseen by the Director of Child Protection, Wendy

McCourt, and Legal and Policy Advisor for the division of Child & Family Services, Michael

Zimmerman. This report is in response to the 2016 Advisory Committee review of the Prince

Edward Island Child Protection Act, recommending a jurisdictional scan regarding utilization of

Alternative Dispute Resolution, including Family Case Planning Conferencing and child

protection mediation be conducted and policies and procedures be established (Recommendation

#25) (Advisory Committee, 2016).

To understand the potential design and implementation of a program, this report will

present a range of perspectives derived from a literature review, including best or promising

practices for CPM in the child welfare context, meetings with community stakeholders, and a

jurisdictional scan (Appendix A) of CPM programs across Canada. This information will serve

as a platform for developing a framework and may be used to inform program development and

guide future policies and procedures in the area of alternate dispute resolution, specifically CPM,

and satisfy, in part, recommendation #25 of the Child Protection Act Review Advisory

Committee.

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TABLE OF CONTENTS

PREAMBLE……………………………………………………………………………..….….…2

INTRODUCTION…………………………………………………………………………..….…5

LITERATURE REVIEW…………………………………………………………..………….….7

DEVELOPING A CHILD PROTECTION MEDIATION PROGRAM……………………….....8

Program Design………………………………………………………………………...…9

Program Funding……………………………………………………………………..….10

Referral Process……………………………………………………………………..…...11

Eligibility Criteria……………………………………………………...….…..…13

Program Oversight……………………………………………………………..………...14

Mediator Roster……………………………………………………………….….….......16

PROGRAM EVALUATION………………………………………………………..……...…... 18

Settlement Rates……………………………………………………….…….…………...19

Time and Cost Savings…………………………………………………………......……19

Participant Satisfaction…………………………………………………….…………… 20

BARRIERS TO SUCCESS…………………………………………………………………..….21

Utilization Rates……………………………………………………………...............….21

Promotion of CPM………………………………………………………………………23

Participant Buy-In………………………………………………………….....................23

INDIGENOUS LENS……………………………………………………………...……………24

BEST INTERESTS OF THE CHILD ………………………………………….…………….…25

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CONSIDERATIONS FROM STAKEHOLDERS…………………………………………..…. 27

Mediation Service Providers in PEI………………………………………..……………27

Mi’kmaq Confederacy of PEI……………………………………………..………….….30

Social Development New Brunswick ………………………………….…………….….32

Manager of Children’s Services, PEI……………………………………………………34

CONCLUSION AND RECOMMENDATIONS……………………………….……………….36

REFERENCES………………………………………………………………….……………….37

APPENDICES………………………………………………………………….……………….40

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INTRODUCTION

Service delivery and policy development within Child & Family Services is undergoing

significant transformational change, with the upcoming implementation of a Structured Decision

Making Model, focus on preventative and collaborative services with children and families,

including the Grandparents and Care Providers program, review of court processes and timelines

in partnership with Child & Family’s legal department, and commitment to building capacity and

relations with our indigenous communities through the development of new protocols and the

appointment of an Indigenous Child Protection Social Worker.

The implementation of a provincial Child Protection Mediation (CPM) Program will

provide an opportunity for greater collaboration between Child Protection Services and the

children and families of Prince Edward Island. CPM supports a shift from traditional punitive

and adversarial processes towards anti-oppressive, strengths-based, and family-centered

frameworks, which will inform interventions with families and serve the best interests of

children. The implementation is supported within current legislation, wherein Prince Edward

Island’s Child Protection Act includes specific provisions, including an alternate approach,

designed to encourage early resolutions of child protection disputes outside of court, including

family group conferencing and child protection mediation.

The Child Protection Act defines an “alternate approach "as a:

“method for developing a plan of care for a child through mediation, joint planning

conference, family group planning conference or such other method of dispute resolution

or joint planning as the Director considers appropriate”.

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Section 16 (1) of the Child Protection Act states:

“Subject to the regulations, where the Director has determined that a child is in need of

protection and no agreement has been made with the parent of the child respecting child

protection services, the Director may initiate an alternative approach to developing a

plan of care for the child.”

This paper will attempt to draw upon the unique experiences of CPM programs across

jurisdictions in Canada to guide the development of a CPM program in Prince Edward Island. A

brief literature review, stages of program development, potential limitations and challenges to

implementation, and consultations with community partners and stakeholders will be used as

evidence to answer the following questions, “to what extent is child protection mediation seen as

an effective strategy in resolving child protection disputes? And, what is best practice in

developing a CPM program in Prince Edward Island?

For the purpose of this paper, “Child Protection Mediation” is defined as:

“a voluntary process of resolving child protection disputes, in which child protection

workers, family and any other person work together with the aid of a trained and

impartial mediator to propose a plan for a child in hopes of developing a mutually

acceptable plan to address identified child protection concerns”.

Keywords: Child Protection Mediation, CPM, child welfare, child protection, program

development, best interest of the child

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LITERATURE REVIEW

CPM is currently utilized across child welfare jurisdictions in Canada, including

programs in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, and

Nova Scotia. Jurisdictions are using CPM to streamline court processes and encourage

alternatives to traditional court processes, with relative success. It is noted that the Canadian

experience with CPM has been mixed, differing considerably in design, impact, and

effectiveness from province to province (Crush, 2005; Cunnighan & Leeuwen, 2005).

The implementation of CPM in the child welfare context across Canada has been in

response to the growing push for a paradigm shift in child protection from adversarial to interest

and rights-based processes for child welfare disputes (Olson et al, 2012). Studies suggest that the

adversarial process of child protection courts can pit social workers, parents, and children against

one another (Milward, 2016). This encourages position-taking and becomes a barrier to

collaboration, communication, and furthers hostility between the participants (Milward, 2016).

Further, adversarial processes perpetuate society’s “go to court” culture, which sees too many

families in the court system and acts as a catalyst to furthering their marginalization within a

hierarchical structure, such as child protection services.

Research indicates that child protection mediation serves to enhance access to justice by

responding to issues related to cost, delay, and complexity associated with traditional dispute

resolutions process. CPM’s objectives also include increasing effectiveness of justice systems,

emphasizing communication and reducing antagonisms between parties, and accommodating

new values and ways of thinking about conflict management (Olson et al, 2012). CPM offers

several benefits over traditional litigation as a way to resolve disagreements about the care that

children need. For example, it promotes collaborative problem solving and consensus building

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among parents and child welfare workers, and recognizes their common interests in promoting

child safety and well-being (Knoke, 2009). It places greater emphasis on the integral role that

parents play in caring for their children and provides greater opportunity for them to have input

into decisions that are made about their children’s care (Knoke, 2009). Further, some evaluations

found that parental compliance with service plans was better among mediated cases than in cases

where expectations were imposed by a judge (Olson et al, 2012; Knoke, 2009).

In reviewing the existing literature, it appears that most relevant and comprehensive CPM

programs for comparison and analysis are those in Ontario, British Columbia, and New

Brunswick. These jurisdictions prioritize collaborative decision-making, wherein there is the

expectation that a collaborative process will be used in most cases with few exceptions. It is

evident that these processes are seen as the preferred option to court ordered decisions and are

used both in case planning and to resolve disputes throughout the various stages of a case (ADR-

Link, 2013).

DEVELOPING A CHILD PROTECTION MEDIATION PROGRAM

Drawing upon the experiences of established CPM programs, particular attention must be

paid to staffing models, screening criteria, timelines for mediation to occur, how the program

will be funded, and who will be tasked with evaluation when developing and implementing a

program within a jurisdiction. This section will use the successes and shortcomings of similar

programs to determine best practices in the above categories. However, it should be noted that

further consultation with key stakeholder groups may be necessary to construct concrete

practices in these highlighted areas.

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Program Design

Child protection mediation may begin as a fully instituted program or started as part of a

pilot project; however, the experiences of established mediation programs suggest that a pilot

program is considered best practice, as it provides an opportunity to test the effectiveness and

viability of CPM in a jurisdiction before a significant amount of time and money are expended or

when there is initial resistance and opposition to a full program (Olson et al, 2012). Pilot

programs may also ensure that design, protocol, and forms can be tested and modified as needed

before the full program in launched (Olson et al, 2012). The case for instituting a pilot project is

made in comparing program design in child protection mediation in the provinces of Nova

Scotia, British Columbia, and Ontario.

Nova Scotia was the first province to systemically promote CPM and appeared to get off

to a solid beginning with a comprehensive 13-day training program, a department approved

mediation roster and funding; however, the program struggled with low referral rates and

acceptance among staff leading to low utilization rates (Cunningham & Van Leeuwen, 2005). In

contrast, the Surrey Court Project in BC began with the creation of the Facilitated Planning

Meeting model, inviting child protection staff, judges and lawyers to work together throughout a

one year planning phase (Cunningham & Van Leeuwen, 2005; McHale, Robertson & Clarke,

2009). This included meetings with the bench, bar, and participating social workers served to

educate them about the theory and potential value of mediation and to elicit their input into the

design. Similar to the Surrey Court Project, the London Child Protection Mediation Project in

Ontario was able to secure sufficient time to adequately plan a comprehensive program, which

included high levels of buy-in by all stakeholder groups and developing referral criteria before

program implementation (Cunningham & Van Leeuwen, 2005).

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 As previously stated in this section, ensuring the right stakeholders are at the planning

table is essential for program success. This initial consultation process includes engaging

stakeholders to buy in to the program following an explanation of the potential benefits and

alleviating any concerns they may have (Milward, 2016). A solid planning group will form the

foundation for the program, including creating a sense of shared leadership, ownership, and

support for the program (Giovannucci & Largent, 2009). Child protection social workers and

counsel, public and private attorneys, First Nation Band representatives, mediators, and the

judiciary often make up stakeholder groups in similar programs and their support can profoundly

impact the extent to which the program is valued and utilized (Giovannucci & Largent, 2009).

Given the above, promoting a pilot project that is designed in collaboration with

stakeholders will likely result in a more effective program by virtue of their input and increase a

sense of ownership of the project across stakeholders. McHale, Robertson & Clarke (2009) state

that attention and input in the design phase, as well as meaningful participation in the

development of the pilot will ultimately translate into program acceptance and contribute to a

shift in understanding and openness towards mediation. Pilot programs promote an experience,

which ultimately changes people faster than ideas can.

Program Funding

Research suggests that the source of funding for CPM programs is critical to the long

term stability and success of the program. The survival of CPM depends upon it being

institutionalized into the basic framework of the child protection and/or court systems. It is the

responsibility of program staff to help the judiciary, lawyers, case workers and other

stakeholders understand that CPM offers the family and child protection stakeholders a positive,

10
empowering, constructive and confidential experience that is unavailable in most other forums.

Committed, invested stakeholders are strong and effective allies and their continuing support is

essential to program success. Further, CPM programs should not be expected to be self

sustaining through the collection of fees for service, due to the demographic of participants

utilizing the program (Olson et al, 2012).

Referral Process

Low referral rates for CPM is noted throughout the literature as a limitation to program

success, as involved parties often struggle to determine who is charged with making referrals and

when a referral is most appropriate. Findings from the London Child Protection Mediation

Project suggest jurisdictions using or establishing a CPM program consider who will screen

cases, when in the court process this will occur, and what criteria will be applied (Cunnigham &

Leeuwen, 2005).

Referral sources are often accepted from child protection social workers, lawyers, and

clients directly and may be accepted at any stage of the child protection process. Jurisdictions

may struggle to determine at which stage referrals for CPM may be most effective; however,

research suggests that it may be most effective in the early stages of the case as a preventative

measure to address how a child can remain in the care of a parent with specific services and

safety planning. A referral at this stage could be part of an effort to avoid a court petition all

together by resolving issues early. The timeliness of this intervention encourages family

engagement, collaborative decision-making, and an inclusive approach to handling child

protection cases. Despite advocacy for mediation as a preventative measure and applicability at

11
each stage of the process, research suggests that it is being most often used after the child welfare

agency has removed the child from the home (Jordan, 2009).

Referral to the program may also come from the judiciary. Participation in CPM is

generally voluntary; however, in some jurisdictions, judges have the option of ordering the

parties involved in a case to try mediation before they have their case heard in court (Knoke,

2009). In discussion with Marilyn Bruce, Director of Child and Family Services with the

Mi’kmaq Confederacy of Prince Edward Island and Designated Band Representative (as outlined

in the Child Protection Act), an example of recent judiciary support for ADR during a court

processes was provided. Marilyn shared that she had successfully advocated in court for an

Indigenous family to participate in a Family Group Conference (FGC), as an alternate method.

The parents were not initially in agreement; however, the court agreed that a FGC would be in

the best interest of the child, and was so ordered. Similarly, standards for CPM in New

Brunswick indicates that parties to mediation must be voluntary; however, the Department of

Social Development is currently revising practice standards, in which there would not have to be

consent from both parents for mediation to occur, should it be found to be in the best interest of

the child. The practice of referring to CPM during the court processes is supported in the Child

Protection Act, noting the Director may make a referral for CPM following an initial application

to the court, as another means of resolving the issue:

Section 17 (1) of the Child Protection Act states:

(2) Notwithstanding sections 36 and 37, where the Director has made an application
pursuant to section 29 and the Director considers that an alternative approach may be
successful, the Director may request an adjournment or withdraw the application

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Eligibility Criteria

According to Toronto’s Centre for Child and Family Mediation, the development of a

CPM program requires specific definition and consistent application of inclusionary and

exclusionary criteria (Olson et al, 2012). In determining if a parent(s) meets the criteria for CPM,

the following considerations are made and have been well-documented throughout the literature,

including: no immediate risk to the child, no concurrent criminal proceedings about the safety of

any family member, all parties must have the capacity to participate in the process, no current

court ordered assessment underway, there is an issue under dispute by at least one party, all

parties agree voluntarily to participate, and there is no ongoing or current spousal violence

(Cunnighan & Leeuwen, 2005). The presence of domestic violence requires increased diligence

when determining eligibility criteria to ensure the process used is safe and appropriate for the

family’s circumstances. Mediation is not appropriate when a party to mediation is unable to

safely advocate for his or her needs and interests of anybody’s safety may be endangered as a

result of mediation (Justice Canada, n.d).

McHale & Clarke (2011) make note that between 2009 -2010, the most commonly

mediated issues in British Columbia, in order, were: access to child by mother, service and/or

resources the parents and family will have access to, access to child by father, supervised access

of child, and communication between family and the Child Protection Authority.

Common exclusionary criteria often includes: severe psychiatric impairment, severe

behavioural challenges, or a developmental delay. A developmental delay would include an IQ

under 70, or a delay which would compromise a person’s ability to participate as an equal party

in the process. This would also include a severe mental disorder involving active and unmediated

psychosis or high suicidality with clinical depression (Cunnighan & Leeuwen, 2005).

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Exclusionary criteria may also include active and serious addiction (Cunnighan & Leeuwen,

2005). It is important to note that accommodations and supports may be put in place to support

full participation whenever necessary.

Program Oversight

Staffing models differ between programs, with those responsible to oversee and educate

staff on the referral process holding various roles and responsibilities. Despite the difference in

models, the need for a position dedicated to program oversight, including receipt of referrals,

applying inclusionary and exclusionary criteria, and coordinating with parties to mediation is

essential for the program to be effective and to ensure efficacy.

According to the Association of Family and Conciliation Court (AFCC), CPM programs

require a clear organizational structure and a program manager who will oversee the day-to-day

operation, quality control, ongoing program development, and public relations (Olson, et al,

2012). Members of the AFCC suggest that a program manager should be a trained mediator, who

mediates as needed, but is allotted sufficient time to perform program management duties,

including liaising between the judiciary and other stakeholders (Olson, et al, 2012). The

professional background of the program manager varies between jurisdictions in Canada, with

members of diverse professional backgrounds, including social workers, mediators, lawyers, etc.

holding similar positions. It is noted; however, that this position requires some background or

knowledge in Child Welfare, as to successfully apply program criteria (McHale & Clarke, 2011).

In Ontario, the project coordinator oversees operational and administrative aspects of the

mediation program. This position includes vetting referrals, assessment of case eligibility, and

approaching clients to explain mediation. Liaising with CAS and mediators was an important

14
aspect of this position, as well as processing expenditures and overseeing the budget (Cunnighan

& Leeuwen, 2005). Information derived from the London Pilot Project calculated that the

average timeframe for screening and processing cases accepted for mediation required an

average of 11 hours, for file review, telephone calls, interviews with workers, home visits, etc

(Cunnigham & Van Leeuwen, 2005).

In New Brunswick, the role of the CPM Supervisor is found in the province’s practice

standards. The standards state that the CPM Supervisor provides leadership in the use of

collaborative practice, including the mandate to consider the use of CPM, ensure the parties

agree to mediation, administer the budget and approve expenditures for child protection

mediators, oversee statistic analysis for the program, maintain and administer the mediator

roster, recruit mediators, and receive complaints regarding the conduct or competency of the

Child Protection Mediator (Department of Social Development, 2015). The Child Protection

Mediation Supervisor’s position is overseen by the provincial Program Delivery Manager.

The Surrey Court Project in British Columbia saw mediation supported by a senior,

experienced social worker, known as a Court Work Supervisor (CWS). The CWS actively

reviewed and referred cases to mediation, supported social workers during the mediation process,

and attended all planning meetings with the authority to agree to a settlement (McHale & Clarke,

2011). Currently, there are a variety of different staffing models used in communities across the

province to provide ground level support and administrative coordination (McHale & Clarke,

2011).

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Mediator Roster

Mediator rosters are utilized within CPM programs across jurisdictions, wherein child

welfare agencies may be charged with the responsibility of monitoring the roster, or in most

cases will delegate this task to an outside mediation agency to ensure parents do not perceive a

conflict of interest between the child welfare agency and the mediators providing the service.

Due to the sensitive nature of the issues involved in child protection cases, accompanied by

complex family dynamics, it is critical to have highly specialized mediators to fill the roster.

Qualifications for child protection mediators vary; however, there appears to be some

consistency in the qualifications applied. Mediators are typically professionals, such as lawyers

or social workers, who have additional specialized training in mediation practice (Knoke, 2009).

They may also have training in, or knowledge of, child welfare, so that they understand the

options available to families (Knoke, 2009).

According to the AFCC, child protection mediators should be governed by ethical

principles and standards of professional conduct (Olson et al, 2012). In Canada, mediators may

be required to hold membership with professional bodies such as, Family Mediation Canada, and

subscribe to the Code of Ethics and Code of Conduct for Meditation. Giovannucci & Largent

(2009) draw attention to the need for mediators to complete a minimum of 40 hours in CPM

training and commit to continuing education, including periodic updates on changes to laws,

court rules, and child welfare agencies and practices.

In Ontario, the following criteria are applied and must be met for mediators to be eligible

to be accepted into the Ontario Child Protection Mediation Roster. This includes a professional

degree in the social services, 60 hours of training in family mediation (to include 20 hours of

skill training), and at least 10 family law cases mediated to the point of agreement or

16
Certification by Family Mediation Canada. The roster will also accept mediators whom are

accredited by the Ontario Association for Family Mediation (Cunnigham & Van Leeuwen,

2005). It is also worth noting that child protection mediators in Ontario are independent

professionals, who do not work for the Children’s Aid Society (CAS) (London Family Court

Clinic, n.d). Further, the mediator is not paid by the CAS and the mediator assigned to the case is

not selected by the CAS (London Family Court Clinic, n.d).

In BC, the mediator roster is administered for the government by the British Columbia

Mediator Roster Society (McHale et al, 2009). Rostered mediators are from the private sector

and are chosen and hired by the Ministry of Justice, which puts them at arm’s length from the

Ministry of Children and Family Development, allowing them to be perceived as neutral

managers of the mediation process (Tennant, 2015; McHale et al, 2009). Mediators assigned to

the roster are required to participate in initial orientation training and all mediators on the roster

must engage in ongoing professional development, most of which is provided through CPM

related education opportunities and practice consultation (McHale et al, 2009).

New Brunswick and Nova Scotia both following similar practices to BC and Ontario, in

which mediators are selected from a provincial roster contracted to an outside agency. In New

Brunswick, once a file is determined to meet criteria for mediation the file is sent to the

mediation agency to begin the process. The Department of Social Development in New

Brunswick is responsible to cover the costs associated with mediator training and standards. In

NB, child protection mediators must complete training through the ADR Institute of Canada

(ADRIC). The cost of ADRIC accredited courses range from approximately $900.00 to $1200.00

(London Family Court Clinic, n.d).

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PROGRAM EVALUATION

Ongoing program evaluation is an essential component to a successful mediation

program. A detailed evaluation can be used to address complex questions about the process,

including strengths and areas needing improvement, compliance of agreements, how agreements

reached through the program differ from non-mediated agreements, or if there were certain types

of cases, where there was a lower percentage of agreements reached (Olson et al, 2012). To

answer these questions, a comparison group will be needed to examine the results of mediated

and non-mediated cases (Olson et al, 2012). This comparative analysis may require review of

court or agency documents or conducting qualitative research, including interviews with

participants, months or years after the mediation (Olson et al, 2012). It may also be helpful to

have a data collection mechanism in place before the program is launched and to have had

preliminary conversations regarding the type of information that will be gathered for routine

program monitoring, and, if relevant, the information needed for a full evaluation (Olson et al,

2012).

Program evaluation is a key step in the design and ongoing implementation of a CPM

program and requires ongoing attention throughout the life of the program. Although it may take

time to acquire the information needed for successful evaluation of a newly implemented

program in PEI, the literature draws attention to the measures of success found in established

mediation programs. These measures of success can be categorized by theme including:

settlement rates, time and cost savings, and participant satisfaction. It is also worth noting that

current program evaluations fail to include research on the impacts on children, especially

children in care. This seems illogical given that programs developed to serve the best interests of

the child do not use child satisfaction or compliance as a measure for success (Knoke, 2009).

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Settlement Rates

CPM has been found to produce a high level of settlements, with moderate to high

settlement rates being reported across jurisdictions. A study conducted by Crush (2005) found

that 60-80 percent of mediated cases reached full agreement and 10-20 percent reached partial

agreements. The Surrey Court Project (2001-2003) also showed high settlement rates within the

pilot project. Within this pilot, 34 cases were mediated, wherein 83% of all cases had issues

resolved, 12% had some issues resolved, and only 5% had no issues resolved (McHale & Clarke,

2011). It may also be important to note that cases with the highest settlement rates were for

issues concerning services and resources and the lowest resolution rate concerned behaviour and

parenting issues (McHale & Clarke, 2011). This is consistent with Knoke (2009), who concluded

that participants are more likely to reach consensus about the service or resources that families

needed to provide better care for the child than they were about the changes they needed to make

in their behaviours.

Time and Cost Saving

Alternative dispute resolutions, including CPM, have been utilized as means of

combating the large volume of cases waiting to be heard in court. Prince Edward Island is not the

exception to long wait times for child protection matters, with this issue having been identified as

a priority for further review within the Department of Family and Human Services child

protection and legal services streams. CPM has been shown to resolve child welfare issues more

quickly than the courts for some situations. Examples include decisions about permanent living

arrangements for children living in foster care, decisions on whether families required

supervision by child welfare workers, and decisions about the course or action required to meet

19
the child’s needs (Knoke, 2009). Situations such as these have taken about 25% to about 50%

less time to resolve through the use of mediation (Knoke, 2009). CPM in the early stages,

wherein a plan is made to support the child remaining in the home, or following an emergency

removal, where a plan can be mediated more quickly to support the return of the child to the

family home, is very cost effective when compared to the costs associated with having children

in care of the Director. Data was provided by Child & Family Services in PEI, which found that

the cost of raising one child in care is approximately $24, 248 annually.

The Toronto Demonstration Project found mediated cases were typically resolved in 8-10

weeks and the cost associated with mediation averaged $1,361.00, minus work time. Further, an

uncontested child welfare matter in Ontario could cost approximately $1500.00 in legal fees to

the child welfare agency and contested matters could cost between $1500.00 – $8,000.00 (Bryan

et al). An evaluation of the CPM program in BC by McHale et al (2009) found that of the 34

cases referred to mediation over a six-month period saved 82 scheduled trial days.

Participant Satisfaction

CPM is highly rated by all participants, due in part to the process being perceived as fair

and empowering by families and professionals (McHale & Clarke, 2011). Many participants

state that mediation gave them the opportunity to openly express their opinions and issues of

particular importance to them (McHale & Clark, 2011). The perceived neutrality helps to engage

parents, with 70-80 percent of professionals working with families reporting that parents were

more involved in case planning when mediation was used (Olson et al, 2012). This positive

experience also appears to increase subjective impressions of program effectiveness.

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 In 2005, the Experience of the London Child Protection Mediation Project, reported

findings from their study regarding perceived strengths of mediation. The most common

perceived benefits were that mediation would be less intimidating and more satisfying for

families than the court process (92% of respondents held that opinion) and that mediation could

improve worker/client communication (85%).

BARRIERS TO SUCCESS

CPM programs experience barriers to implementation consistent with findings in other

mediation practice areas. Research and experience in the field suggests that there are a number of

issues that must be addressed for CPM to become a viable dispute resolution option including

low referral and utilization rates, need for continual promotion of CPM, and lack of staff and

participant buy-in (McHale & Clarke, 2011).

Utilization Rates

A well-known barrier has been low referral rates across jurisdictions. This finding is not

surprising as voluntary programs have low-uptake rates, despite the fact that people are highly

satisfied with the service. This disconnect may be due in part to people not having access to

enough information to make an informed choice, fear of the unknown, a culture of traditional

litigation when disputes arise, lawyers not referring parents to mediation, and the discourse that

participating in mediation is a sign of weakness (McHale & Clarke, 2011).

In 2013, Bay Consulting Group completed an eight-month project to evaluate Ontario’s

service delivery system for ADR processes, including CPM. At that time, individuals from the

provincial mediation roster reported being utilized infrequently, with only 56% of child

21
protection mediators indicating they were providing CPM often (Bay Consulting Group, 2013).

The report suggested that many rostered service providers could have difficulty in developing

and maintaining proficiency in CPM at these low levels of utilization (Bay Consulting Group,

2013).

George R. Savoury of Savoury Consulting Ltd recently submitted a report titled, “Review

of the Effectiveness of New Brunswick’s Child Protection System” to the Department of Social

Development, New Brunswick, on November 29, 2018. The mandate of this review was to

assess the effectiveness of the department’s child protection system, identify factors that

positively or negatively influence the effectiveness of the services system, and make

recommendations which may lead to system improvements (Savoury, 2018). This review

included an analysis of CPM.

During the Savoury review, staff were surveyed to better understand efficacy and

utilization of child protection mediation across the province. Findings suggest that the majority

of surveyed staff indicated they had never participated in CPM and felt that the low utilization

rate likely indicated that it was not a collaborative approach that was working or needed in New

Brunswick. Comparatively, staff who had participated in mediation were positive about it and

felt that it should be available as an approach to resolving disputes and planning for the best

interests of children (Savoury, 2018).

Taking into account staff feedback, two recommendations were made regarding

mediation in New Brunswick. First, the Department should conduct a review of its CPM

program to assess the reasons for its low utilization rate and the steps that can be taken to

increase utilization. Second, a meeting is recommended between Central Office staff, some staff

from the regions and the child protection mediators to discuss any issues and possible solutions

22
to increase usage of CPM (Savoury, 2018). Surveyed staff also provided input into potential

recommendations including clarity on when a referral to CPM would be beneficial or appropriate

and a marketing initiative to ensure that families, social workers, lawyers, and judges are aware

of the service itself and referral process.

Promotion of CPM

High staff turnover within Child Protection Services is noted as another barrier to

program success, as this high turnover requires a constant flow of information and education

about the mediation program (McHale & Clarke, 2011). Further, mediation needs to be promoted

to be successful and word of mouth is a persuader to try something new and once people try

mediation they tend to like the process (McHale & Clarke, 2011). Promotion of the program

from trial judges, lawyers, and service users has also been noted as a barrier. Nova Scotia’s CPM

Program continues to operate with low referral and utilization rates. In response, the Minister’s

Advisory Committee on the Children and Family Services Act (CFSA) made the following

recommendations regarding CPM in the province. First, that the CFSA be amended to provide

the trial judge with the jurisdiction to direct the parties to mediation and, second, that the CFSA

require agency workers to notify parents at the earliest stage of any protection proceeding, even

when no court action is contemplated, of the option for mediation outlined in section 21

(Advisory Committee, 2008).

Participant Buy-In

The most frequently reported barrier to using mediation to resolve child welfare issues

was the reluctance of professionals to refer. In some jurisdictions, the volume of referrals to

23
mediation improved as the program became more established, but in others, it remained low,

largely due to lack of judicial support (Knoke, 2009). In the child protection context, social

workers may feel uncomfortable or skeptical of the mediation process. Social workers employ

negotiation skills every day in their work with children and families and may view mediation as

redundant. There may also be a feeling social workers are losing control of a case when a

mediator becomes involved (McHale & Clarke, 2011). Comparatively, families may be

suspicious of a program offered by the government, due in part to the history of conflict between

families and the Director of Child Protection (McHale & Clarke, 2011). Families are also

particularly vulnerable to a lack of information and may rely entirely on legal counsel to

recommend mediation (McHale & Clarke, 2011).

INDIGENOUS LENS

Child welfare as a system has been criticized for imposing dominant values and practices

on marginalized communities, while simultaneously failing to take into account the damaging

effects of inequality on the children and families it serves. This becomes evident in the continued

overrepresentation of Indigenous children in care in Canada (Statistics Canada, 2016).

Understandably, this failure has resulted in a system that has the potential to reinforce, if not

deepen, the inequalities already experienced by many parents and children (Wong & Yee, 2010).

To begin to address the overrepresentation and further marginalization of Indigenous

communities, child welfare organizations must shift away from traditional bureaucratic and risk

adverse systems towards anti-oppressive, inclusive, and culturally competent practices.

Knoke (2009) notes that for Indigenous peoples, mediation can assist in preserving and

strengthening families, and can reduce some of the inequities experienced by Indigenous people

24
in northern areas, including lack of legal representation, difficulty in understanding child welfare

court processes, and lack of translation of legal and child welfare concepts into Aboriginal

languages. Although CPM is available to Indigenous families across jurisdictions with an

established program, it appears that child protection services across Canada are moving towards

strengthening Indigenous approaches to ADR implementation. This is seen in the standards for

ADR in both British Columbia and Ontario, wherein “Indigenous Approaches” are listed as a

third option for ADR (Tennant, 2015; Leach, 2015).The potential role and suitability of child

protection mediation with the Indigenous community of Prince Edward Island will be discussed

further in the consultations with key stakeholders section.

BEST INTERESTS OF THE CHILD

The primary purpose of the Child Protection Act is to protect children from harm due to

abuse and neglect, within the context of section 9 (factors describing when a child is in need of

protection) and the best interests of the child.

Section 2(2) of the Child Protection Act defines the best interests of the child as:

“Interests that appear, to the Director, or to a court, to be best for the child under the

circumstances, having regard to all relevant considerations”

One way the child welfare system may empower children and serve their best interests is

to provide them with information and participation in decisions that profoundly impact their

lives. It is widely accepted throughout family justice literature that litigation is stressful for

children and that the adversarial system does not serve them well, with children often having to

25
choose sides (Jordan, 2009). CPM presents an opportunity to involve children in decisions that

affect their lives. If child protection cases are to be resolved in the best interests of the child, it

makes sense to involve the child, at least at some point in the chosen process (Jordan, 2009).

Research indicates that there are two leading reasons supporting the involvement of children in

CPM – children are the most appropriate sources of defining what these best interests may be, by

telling what happened and their feelings about it, and, involving children in mediation can foster

or improve the child-parent relationship (Giovannucci & Largent, 2009).

Participation in mediation enhances a child’s self-esteem, increases decision making

ability, shortens the length and intensity of family disputes, and in its best form can reunify the

family (Jordan, 2009). Although there is need for greater research in the area of child

participation, the current literature suggests that children have information that no one else has,

and that information would be lost without their participation. Research has also indicated that

child participation in mediation contributes to the empowerment of family members by helping

them to develop a wider range of creative options and provides everyone with an equal

opportunity to participate in the process which in turn reduces further conflict between the

parties (Jordan, 2009). In addition to the benefits derived from including children in mediation,

there are clear consequences associated with their exclusion including perpetuating feelings of

isolation, loneliness, anxiety, fear, confusion, and anger (Jordan, 2009).

The child’s voice in mediation has been noted as essential for decision-making and is

typically missing from many CPM programs. This may be due in part by questions stemming

from doubt of children’s abilities to correctly recall events and children being perceived as

unable to communicate effectively (Giovannucci & Largent, 2009). However, research suggests

that children, even young children, are developed and have enough capacity to be helpful in

26
cases (Hehr, 2005). How to involve children must be determined in the program design process.

Should a decision be made that it is not suitable for a child to attend mediation, it is important

that their views are represented, for example, by an advocate for the child (Jordan, 2009). The

importance of the child’s voice has been included in the standards for CPM in Ontario, wherein

the Youth and Family Services Act, as amended by Bill 210, states that the Children’s Lawyer

may provide legal representation for a child where a prescribed method of ADR is proposed

(Ministry of Children, Community, and Social Services, 2006).

CONSIDERATIONS FROM STAKEHOLDERS

Consultation is a fundamental step in the design of a successful CPM program.

Stakeholder groups often include child protection agency administrators, legal counsel of all

parties, the Child Advocate and/or Children’s lawyer, Indigenous Representatives, mediators and

mediation experts, and the judiciary (Cunnigham & Leeuwen, 2005). Due to the timeframe of

this project, not all stakeholder groups were able to be included in the initial request for

information and input; however, it is noted that reaching out to the above noted stakeholder

groups will correlate to program success moving forward.

Consultation with Mediation Service Providers in PEI

Information in this section was gathered through consultation with Darrell Gallant, Family Law
Centre Mediator, on January 18, 2019.

Darrell Gallant holds the position of Family Law Mediator with the Province of Prince

Edward Island’s Family Law Centre. Darrell is also a member of Mediation PEI Inc. Darrell

provides “Child-Focused Family Mediation” services to parents to help settle child custody,

27
access, and child support issues. Darrell advised that there has been interest within the Family

Court Counsellor’s Office to provide child protection mediation in the past, as this has been

identified as a gap in service delivery.

Currently, parents are referred to Darrell through Family Court, who may also be

involved with Child Protection Services. Once an application for mediation is made, cases are

screened by Darrell to determine their suitability for mediation. Screening criteria includes

whether a mediation process can be (reasonably) fair for the involved parties, safe for the parties

and the children, and if the parties can participate competently. If not all criteria are met, the next

question will be, can reasonable accommodation be made to make the process fairer, safer, and

help parties participate more fully? During the intake and screening process, Darrell may gather

information from outside agencies, including Child Protection Services.

Darrell has received direct referrals from Child Protection Services and has also had

parents say they were directed to contact Darrell by a Child Protection Social Worker. Although

Darrell does not practice child protection mediation, he noted that he may be able to mediate an

agreement between parties which would act as a preventative measure to mitigating conflict and

eliminating the presence of child protection concerns. Statistics are not available regarding

referrals from Child Protection Services at this time.

Information in this section was gathered through consultation with Mediation PEI Inc. on
February 7, 2019, and supporting documents provided by Mediation PEI Inc. (Appendix B).

Mediation PEI Inc. is a not for profit corporation specializing in civil, family, and elder

mediation. Mediation PEI Inc is comprised of 12-15 members across Prince Edward Island, from

diverse backgrounds, including legal, social work, education, and community based interests. To

28
date, this group has been functioning as the primary agent for the advancement of mediation in

the province. Mediation PEI Inc. has been a strong proponent and advocate for the development

of a CPM program in PEI, noting the current disconnect between Child Protection legislation and

program delivery. The group notes the advantages of mediation, including cost effectiveness of

mediation versus traditional litigation, time savings in court, improvement of social worker and

client relationships, and most importantly, less emotional wear on children and families.

Members of the group delivered presentations on the effectiveness of CPM and

supplementary documents on the current successes in other Canadian jurisdictions, at both the

2008 and 2016 PEI Child Protection Act Advisory Committee Review consultations. A brief

overview of their proposal is listed below.

In 2008, Mediation PEI Inc. provided their commitment to offering CPM through a pilot

project, stating that in one jurisdiction it had taken one year for the planning phase of the pilot;

however, they believed that this may be accomplished in a shorter period of time in PEI. The

group also recommended that an Implementation Committee be established to include various

stakeholders over approximately 2 years - the estimated time to accomplish implementation

through a pilot program.

In 2016, Mediation PEI Inc. provided a brief to the Child Protection Act Advisory

Committee again stating their disappointment that mediation has not been inaugurated despite

the provision of mediation in the Child Protection Act. Mediation PEI Inc. again spoke of their

commitment to providing a mediation service for the child protection system, including being

available to consult regarding a proposal for CPM. The group also noted that the CPM model is

offered in several regions across Canada and Family Mediation Canada, of which Mediation PEI

Inc is an affiliate, has a specialty in this field.

29
Cultural Considerations for Child Protection Mediation in PEI

Information provided in consultation with Marilyn Bruce, Director of Child and Family Services,
with the Mi’kmaq Confederacy of Prince Edward Island.

Marilyn Bruce is the Director of Child and Family Services with the Mi’kmaq

Confederacy of PEI, a position she has held for the past 12 years. Marilyn agreed to discuss

current ADR practices within the Indigenous community in PEI and the vision for future

program development and implementation. The consultation with Marilyn allowed for a better

understanding of the applicability of a CPM program with Indigenous children, families, and

communities in PEI, including cultural considerations necessary for program success.

Marilyn advised that the current delivery of ADR through MCPEI has been in the form of

Family Group Conferencing (FGC). FGC shares common values with the confederacy, including

community and family engagement, safety, shared responsibility and decision-making, and the

importance of building networks of support. FGC is offered to all on-reserve members of the

Abegweit and Lennox Island First Nations and can be used in various contexts including: child

protection, justice, family conflict, and developing plans of support for children and adults. The

program has unique characteristics including its flexibility, as it is able to be offered without

strict guidelines or criteria. The program can adapt to the needs of the individual or family needs.

The program can also receive a referral from any agency or person directly.

Though focusing primarily on providing FGC services, facilitators through MCPEI have

additional training in conflict resolution and mediation. MCPEI has also used mediation services

on reserve through the Family Law Center, which had a positive outcome for the individuals

involved. Marilyn advised that in one particular scenario, the shorter preparation time of

mediation compared to a FGC allowed for early intervention and a plan to be made before this

30
situation became a child protection issue. This model was also successful, as the family was not

receptive to a home assessment being conducted; therefore, opted for mediation. Marilyn is also

aware that some clients have used an external mediator for custody disputes. It is also important

to note that a representative from MCPEI was involved and present for the mediation.

Marilyn believes that it is important for PEI to be flexible and provide both FGC and

CPM, as both can be used to build networks and safety supports for children. CPM also has some

advantages, specifically the ability for a timely intervention. However, the model of FGC is used

most often and would appear to be more culturally appropriate for Indigenous communities.

Marilyn spoke of the need for child protection service staff to become more aware of

ADR services that may be utilized with clients. It is also important to have experienced workers

that know the case and are able to make decisions. This allows for transparency and clarity for all

parties to ensure the goals for the parents are clear. Marilyn advised that referrals to FGC should

be part of everyday practice for child protection workers working with indigenous families;

however, currently MCPEI is advocating for this service to Child & Family Services staff.

Marilyn noted the need for a systemic push to offer services like mediation and family group

conferencing and expand the scope of practice, even if parents are initially refusing, as this is in

the child’s best interest and allows for other important people in children’s lives to come

forward. Marilyn would like to see ADR present in child protection case plans.

The costs associated with providing FGC can vary from one case to another, as many

factors such as travel to meet with participants or bringing participants to the conference, the

number of participants, etc. Marilyn advising that costs could range from $1000 - $5000 per

conference and that she is provided a budget line annually for this service. Currently, there is

only one person trained to facilitate FGCs, wherein this position is an addition to their current

31
job description. Marilyn is hoping to receive federal funding to expand the scope of the program

and to hire and train more facilitators in the future.

Consultation with Mark LaForge, Social Development New Brunswick

Information in this section was provided through consultation with Mark LaForge, Program

Delivery Manager, for Social Development New Brunswick (February 2019).

Mark LaForge, Program Delivery Manager, provided greater context into the successes

and challenges of CPM in New Brunswick, as well as the existing program structure, including:

referral rates, billing guidelines, criteria and screening, and mediator requirements. Mark also

provided clarity regarding the appropriateness of CPM versus other forms of ADR within the

child protection process. Guiding questions from this consultation can be found in Appendix C.

CPM has been offered in the province of New Brunswick for several years. The program

was delivered through the Department of Justice, beginning in 2008. In 2015, the program was

transferred to Social Development, due to the presence of CPM in the Family Services Act. This

change in the management of the program created a disconnect and is noted to have been a

contributing factor for underutilization. Mark noted that CPM has only been a part of the

Department for the past four years; wherein, FCG began in the Department and; therefore,

workers may be more comfortable with this avenue. There was also a negative discourse

associated with the program while overseen by the Department of Justice, which appears to have

carried into the current program.

The program is overseen by the Program Manager and facilitated by three supervisors

across the province. These positions are responsible to ensure the referrals meet criteria for

32
mediation and are forwarded to the contracted mediation agency. These three positions are

responsible for supervising all ADR programs, including CPM, FGC, and IRC (Immediate

Response Conference). The referring social worker consults with their direct supervisor then a

decision is made to submit a referral to the central email for ADR supervisors to ensure criteria

and appropriate response.

Criteria for CPM appears to be a challenge for front line social workers in New

Brunswick, as they note struggling to determine whether a referral is or when a referral is

appropriate for mediation. Mark states that the overall use and purpose of mediation is to mediate

challenges and conflict between the department and parents. Mediation is not to be used to

mediate issues between parents. An example of an appropriate use of mediation would be,

parents not fulfilling the objectives of their case plan and; therefore, planning for the child is not

moving forward or the department and the parent not agreeing on a visitation plan for a child in

care; therefore, not allowing for the plan to move forward. Mediation is used when there is

ongoing child protection or family enhancement work with a family and child protection

concerns have been substantiated.

CPM is offered by mediators on a provincial roster, which is not overseen or managed by

the Department. Once a referral is approved by the program supervisor, the file is handed to the

mediation agency to begin the process. Social Development New Brunswick is responsible for

payment of mediation services and training of rostered mediators. Mark noted that the annual

budget for CPM is between $90,000 - 100,000, which has never been exceeded. At the

conclusion of the mediation process, the mediation agency will send all files back to the

department.

33
 The Program Manager is responsible for program evaluation. Mark prepares statistics and

must complete evaluation forms, as required for departmental programs. Mark advised that

through evaluation, he has received positive feedback from social workers and families regarding

the mediation process. Mark states that CPM is being promoted within the agency; however,

more work needs to be done regarding promotion.

Year Number of Referrals

2018 5

2017 16

2016 13

2015 5

New Brunswick Child Protection Mediation Referral Rates (2015 - 2018)

A Social Worker’s Perspective on CPM

Information in this section was provided through consultation with Kelly Peck, Provincial
Manager of Children’s Services, in Prince Edward Island.

Kelly has worked in the field of child protection for over 15 years, both in frontline and

management positions in British Columbia. Kelly is currently employed as the Provincial

Manager of Children’s Services, for Child Protection Services, in Prince Edward Island. Kelly

agreed to share her firsthand experiences utilizing the CPM Program in BC and perspectives on

the program’s effectiveness. The consultation with Kelly also allowed for a better understanding

of the direct impacts of alternative approaches on the delivery of child protection services.

34
 Kelly was very familiar with CPM, as she had utilized this service often during her child

protection career. Kelly advised that the judiciary often made referrals to CPM, wherein both

parties would be expected to participate in CPM prior to an order being heard or granted. This

may occur when applying for Supervision, Temporary Care, or Continuing Care Orders. Once a

judge referred parties to mediation, it would be the social worker’s responsibility to contact a

CPM coordinator in the province to make arrangements for mediation. If an agreement was made

through CPM, this agreement would be filed with the court and neither party would need to

return to court, granted the terms of the agreement were being followed. Kelly referred to the

process from referral to agreement as being quite streamlined due to the way in which CPM was

situated in the basic framework of the child protection and court systems.

Kelly spoke of the ability of the program to meet both the needs of the Ministry of

Children and Family Development as well as the needs of parents involved with child protection

services. Kelly believed that CPM was very effective in preventing children from coming into

the care of the Director and re-engaging families with services. The CPM also valued the voice

of the child, in which children could write letters or have an advocate speak on their behalf. In

Kelly’s opinion, staff buy-in and utilization was high due to success rates and departmental

expectations and standards that an alternative approach be used with families to resolve conflict.

Kelly also commented that having competent and specialized mediators increased confidence in

the process by both parties, and aided in the resolution of conflict in most circumstances.

British Columbia also employs other forms of Alternative Dispute Resolution, including

CPM, Family Case Planning Conferences (FCPC) and Family Group Conferencing (FGC), and

“Other”, with noted advantages and limitations for each. Kelly advised that FGCs may be more

time consuming, wherein CPM allows for an agreement to be reached in a shorter amount of

35
time due to having less parties involved. Kelly also noted that CPM is more formal than FGC

and that there is often a legal undertone with CPM, as lawyers are involved and mediation is

usually ordered by the court. Further, for Indigenous families, FGC seem to be the preferred

means of resolving conflict prior to court intervention.

CONCLUSION AND RECOMMENDATIONS

At the conclusion of this review, taking into account the experiences of child welfare

jurisdictions in Canada, it appears that CPM can be a viable alternative option to traditional

litigation. It is evident that the degree of success varies between programs, from a fully

implemented and utilized program to programs characterized by significant under-utilization.

These results highlight the importance of close attention to answering who, what, when, where,

and why at the outset of program development, as this will significantly impact the direction and

success of the program (Cunningham & Van Leeuwen, 2005).

The literature provided a foundation or basis for designing and implementing a CPM

Program, from stakeholder identification and buy-in, to funding, processes, and barriers. Overall,

researchers and advocates state that CPM must be thread into the basic framework of the child

protection and/or court system to ensure success. It is also noted that an implementation strategy

needs to address the underlying child welfare culture and values, if we wish to shift from

traditional adversarial approaches to those of collaboration and shared decision-making. This

shift requires and depends on having people adopt a new way of thinking about conflict. McHale

et al (2009) noted that the successful implementation of such a program is as much about

managing culture change as it is about sound program and process design, and how such a

program is implemented may be even more important than what is implemented.

36
 This project comes at an opportune time, as Child & Family Services is currently

undergoing significant transformation at the systems level. Implementing CPM within the

organization presents a platform for shifting from oppressive and punitive interventions towards

supporting a new kind of engagement with children and families. This paradigm shift is in line

with the mission and mandate of Child Protection Services in Prince Edward Island and will also

serve to uphold the values and principles of the Social Work Code of Ethics, particularly values

of social justice and service to humanity.

Based on the findings of this project, the following recommendations are made to ensure

best practice in the development and implementation of CPM in the province:

1. Together with key stakeholders (i.e. members of the judiciary, social workers, Child
& Family administrators, mediators, representatives from the Mi’kmaq Confederacy
of PEI), a pilot project be conducted to test program design, protocols, processes, and
efficacy prior to full program roll out
2. A Mediator Roster be developed and contracted to an outside agency to provide
oversight and maintenance of the roster to ensure a neutral and transparent mediation
process for all parties
3. Child & Family Services educate and support child protection social workers and
legal counsel in the appropriate use of CPM
4. Child & Family Services actively promote the use and benefits of CPM to increase
awareness amongst staff, legal representatives, community partners and services, and
clients of child protection services
5. The voices of children, whenever possible, are present in the mediation process,
through active participation or through the use of the children’s lawyer or advocate to
ensure their views are included.

37
REFERENCES

Advisory Committee. (2016). Child Protection Act Review. https://www.princeedwardisland.ca

/sites/default/files/publications/2016_child_protection_act_review_advisory_committee_
report_.pdf

Bryan et al. (2011). Making the Case for Evaluation Partnerships in Child Protection Mediation
Programs: Insights from a Case Study. Juvenile and Family Court Journal, 62(2).

Crush, L. (2005). The State of Child Protection Mediation in Canada. Canadian Family Law
Quarterly, vol. 24 (2), 191.

Cunningham, A. & Van Leeuwen, J. (2005). Finding a Third Option: The Experience of the
London Child Protection Mediation Project. Centre for Children & Families in the
Justice System, London Family Court Clinic.

Government of Prince Edward Island. (2008). Child Protection Act.

https://www.princeedwardisland.ca/sites/default/files/legislation/C-05-1-
Child%20Protection%20Act.pdf

Giovannacci, M. & Largent, K. (2009). A Guide to Effective Child Protection Mediation:

Lessons from 25 Years of Practice. Family Court Review, vol. 47 (1), 38-52.

Hehr, A. (2007). A Child Shall Lead Them: Developing and Utilizing Child Protection
Mediation to Better Serve the Interests of the Child. Ohio State Journal on Dispute
Resolution, 22(2).

Jordan, K. (2009). Need to Be Heard: Increasing Child Participation in Protection Mediation

Through Implementation of Model Standards. Family Court Review, vol. 47 (4) 715-736.

38
Justice Canada. (n.d). Making the Links in Family Violence Cases: Collaboration among the
Family, Child Protection and Criminal Justice Systems. http://www.justice.gc.ca/eng/rp-
Pr/cj-jp/fv-vf/mlfvc-elcvf/p10.html

Knoke, D. (2009). Mediation in child welfare. Centres for Excellence for Children’s Well-Being.

Leach, C. (2015). Alternative Dispute Resolution in Child Protection Cases. Office of the
Children’s Lawyer.

McHale, M. & Clarke, A. (2011). Child Protection Mediation in British Columbia.

Family Justice Services Division.

McHale, M., Robertson, I. & Clarke, A. (2009). Building a Child Protection Mediation Program
In British Columbia. Family Court Review, vol. 47 (1), 86-97.

Milward, D. (2016). Children Need Families, Not Courtrooms: Alternatives to Adversarial

Litigation in Child Welfare. Office of the Children’s Advocate Manitoba.

Statistics Canada. (2016). Aboriginal Peoples: Fact Sheet For Canada.

https://www150.statcan.gc.ca/n1/pub/89-656-x/89-656-x2015001-eng.htm

Tennant, K. (2015). Understanding Child Protection Mediation for Aboriginal Families.

Legal Services Society British Columbia.

Olson et al. (2012). Guidelines for Child Protection Mediation. Association of Family and
Conciliation Courts. https://www.afccnet.org/Portals/0/Guidelines%20for%20Child
%20Protection%20Mediation.pdf

Yee, J., Hackbusch, C. & Wong, H. (2015). An Anti-Oppression (AO) Framework for Child. The
Welfare in Ontario, Canada: Possibilities for Systemic Change British Journal of Social
Work, vol. 45(2).

39
Appendix A

40
Province/ Legislation Provision in the
Territory Legislation
PEI Child S. 16 (1) “Subject to the
Protection regulations, where the
Act Director has determined
that a child is in need of
protection and no
agreement has been made
with the parent of the child
respecting child protection
services, the Director may
initiate an alternative
approach to developing a
plan of care for the child.”
NB Family 31.1(2) The Minister shall
Services Act consider using the
collaborative approach of
mediation or a family group
conference in establishing,
replacing or amending a
plan referred to in
subsection (1).
Alternative Dispute Resolution
Definition: 1. (c) “alternative approach” means a method for
developing a plan of care for a child through mediation, joint
planning conference, family group planning conference or such
other method of dispute resolution or joint planning as the
Director considers appropriate;
Alternative Approaches in Legislation: Child Protection
Mediation, Family Group Conferencing
No Current Program
Alternative Approaches in Legislation: Immediate Response
Conference, Family Group Conference, Child Protection
Mediation
How and When is ADR Utilized?
31.1(1) Where the Minister has determined, after completing
an investigation, that the security or development of a child is
in danger, the Minister shall ensure that a plan for the care of
the child is established to ensure that his or her security and
development are adequately protected, and may subsequently
replace or amend the plan at any time as circumstances require.
31.1(1.1) The Minister shall ensure a concurrent plan is
established at the same time as the plan referred to in
subsection (1).
31.1(3) If the Minister and the parent of the child agree, they
may establish, replace or amend a plan referred to in subsection
(1) by means of mediation or a family group conference.
31.1(4) Any issue with respect to a plan for the care of a child
may be dealt with during a mediation or family group
conference, except the determination of the Minister that the
security or development of the child is in danger and the
factors that led the Minister to that determination
Referral Process: Child Protection Social Workers, lawyers,
clients, or members of the judiciary may make a referral to
CPM. Eligibility is decided by a ADR Program supervisor.
Confidentiality:
31.1(5) Except as provided under section 30 and subsection
(6), all information obtained and discussions that occur during
a mediation or family group conference held pursuant to this
section are confidential and shall not be disclosed.
31.1(6) Information that is contained in a signed written
agreement between the Minister and any other party to a
mediation or family group conference may be disclosed in
41

NS Children and 21 (1) An agency and a
Family parent or guardian of a
Services Act child may, at any time,
agree to the appointment of
a mediator to attempt to
resolve matters relating to
the child who is or may
become a child in need of
protective services.
NFLD Child, Youth
and Family 13 (1) A manager or social
Services Act worker may use a family
group conference,
accordance with this Act or any other applicable law
31.1(7) Except as provided under section 30, no person may be
compelled to give evidence in any court in any proceeding of a
judicial nature or in any investigative process concerning any
information that comes to the knowledge of the person as a
participant in a mediation or family group conference for
establishing, replacing or amending a plan for the care of a
child pursuant to this section.
Alternative Approaches in Legislation: Risk Management
Conference, Child Protection Mediation, Family Group
Conference
Referral:
In a Risk Management Conference, the CPS worker and the
supervisor decide what cases should be referred to mediation
(based on 11 criteria).
When both parties agree to mediation, approval must be
obtained from the Executive Director of the CPS agency.
CP Case à Negotiation à Referral à Case Selection à
Approval Process à Mediator Selection à Meditation
How and When is ADR Utilized?
Protection hearing
40 (1) Where an application is made to the court to determine
whether a child is in need of protective services, the court shall,
not later than ninety days after the date of the application
(b) refer the parties to conferencing, which may proceed as a
family group conference, if
(i) the child is the subject of a supervision order pursuant to
clause (b) of subsection (4) of Section 39, and
(ii) the court determines it to be in the child’s best interests
Disposition hearing
41 (1) Where the court finds the child is in need of protective
services, the court shall, not later than ninety days after so
finding,
(b) refer the parties to conferencing, which may proceed as a
family group conference, if (i) the child is the subject of an
order pursuant to clause (b) of subsection (4) of Section 39,
and (ii) the court determines it to be in the child’s best
interests.
Alternative Approaches in Legislation: Family Group
Conferencing, Mediation, or another form of Alternate Dispute
Resolution.
42
 mediation or another form
of alternate dispute
resolution to establish,
replace or amend the plan
referred to in section 12 .
QC Youth No provision in the Act
Protection
Act
ON Child, Youth s.20.2 - "If at any time
and Family during the provision of child
Services Act protection services, it
appears that a child is or
may be in need of protection
under the CFSA a CAS shall
consider whether a
prescribed method of
Alternative Dispute
Resolution (ADR) could
assist in resolving any issue
related to the child or a plan
for the child’s care."
Definition(s): (a) "alternate dispute resolution" means a
process for resolving disputes, other than litigation, that is
approved by the provincial director;
(g) "family group conference" means a formal planning and
decision making meeting, facilitated by an independent co-
coordinator, which brings together the parent, family or other
person significant to the child, social workers and other service
providers to develop a plan for a child's safety, permanency
and well-being;
(k) "mediation" means a voluntary process in which a
mediator assists the parent, family, other person significant to
the child, social workers, lawyers and other service providers
to discuss and resolve the referred issues;
No Current Program
Criteria:
(3) An issue with respect to a plan referred to in
section 12 may be included in a family group conference,
mediation or another form of alternate dispute resolution, other
than the determination by a manager or social worker that the
child is in need of protective intervention and the factors that
led to that determination.
No Current Program
Alternative Approaches in Legislation: Child Protection
Mediation, FGC, Aboriginal Approaches, and Other
Referral:
Children’s Aid Societies make direct referrals to rostered
mediators or coordinators. In other areas, referrals are made to
an agency, who will then arrange for the assignment of a
mediator or coordinator (i.e. Toronto Mediation Centre).
Referrals can also be made by a parent’s lawyer who feels
ADR would be helpful in resolving a case. They can make the
request to the CAS. If CAS does not seem inclined to make a
referral, counsel may contact ADR service provider in the
community to express interest. Alternatively, counsel may raise
the option with the court.
Criteria (As Outlined by Policy Directive CW 005-06):
1. A method of alternative dispute resolution that satisfies the
following criteria is a prescribed method of alternative dispute
resolution:
a. ADR must be undertaken with consent of all participants
b. ADR must be one that can be terminated at any time by any
participants to it
c. ADR must be conducted by an impartial facilitator who has
43

MB The Child
and Family
Services Act
SK Child and s. 15(1) If an officer has
Family concluded that a child is in
Services Act need of protection, the
officer may offer dispute
resolution to the parent for
the purpose of obtaining
assistance in concluding an
agreement with the parent
for the provision of family
services
. (2) The officer mentioned in subsection (1) shall, as soon as is
AB Child, Youth 3.1(1) Subject to the
and Family regulations, a child, the
Enhancement guardian of a child or a
Act person who in the opinion of
a director has a significant
connection to a child may,
with the agreement of the
director, enter into
alternative dispute
resolution, as defined in the
regulations, with the
director with respect to any
decision made by the
director with respect to the
child.
BC Child, S 22. “If a director and any
Family, and person are unable to resolve
Community an issue relating to the child
Service Act or a plan of care, the
director and the person may
no decision-making power
d. ADR must satisfy section 2 with respect to confidentiality of
and access to records and information.
e. ADR must not be an arbitration
Alternative Approaches in Legislation: Not indicated
Foster Parent Appeals Regulation, Subsection 4(1) :
Agency is required to offer alternative dispute resolution
(ADR) in writing within seven days of receiving a request from
a foster parent to review a decision to remove a child. Agencies
are required to have written ADR policies and procedures
developed in consultation with their mandating authorities. The
regulation supports agencies and mandating authorities to
employ culturally appropriate approaches to ADR.
Alternative Approaches in Legislation: Mediation, Joint
Planning Conference, Family Group Conference, Talking
Circles
Criteria/Application:
Dispute resolution services 15(1) If an officer has concluded
that a child is in need of protection, the officer may offer
dispute resolution to the parent for the purpose of obtaining
assistance in concluding an agreement with the parent for the
provision of family services.
reasonably practicable, apply to the court for a protection
hearing if: (a) the parent and the director do not enter into an
agreement pursuant to subsection (1); and (b) the officer
believes that the child is in need of protection. (3) An
application pursuant to subsection (2) may be made by
telephone in accordance with the regulations.
Alternative Approaches in Legislation: Child Protection
Mediation
Definition: (3) For the purposes of the Act, “alternative
dispute resolution” means mediation
Criteria:
Mediation 5(1) A person who conducts alternative dispute
resolution by mediation under section 3.1 of the Act must (a)
have qualifications or experience, or a combination of both,
satisfactory to a director, and (b) be agreed to by all parties to
the mediation. (2) A person who conducts alternative dispute
resolution by mediation must use a process that facilitates the
parties to the mediation to make their own decisions to resolve
the dispute.
Alternative Approaches in Legislation:
Family Conference, Child Protection Mediation, “Other”
Referrals:
44
agree to mediation or other
alternative dispute
resolution mechanisms as a
means of resolving the
issue.”
Court Work Supervisor reviews and refers cases to mediation.
Mediation or other alternative dispute resolution
mechanisms
22 If a director and any person are unable to resolve an issue
relating to the child or a plan of care, the director and the
person may agree to mediation or other alternative dispute
resolution mechanisms as a means of resolving the issue.
Effect of family conference, mediation or other alternative
dispute resolution mechanisms on court proceeding
23 (1)On application the court may adjourn a proceeding
under this Part one or more times, for a total period of up to
3 months, so that a family conference, mediation or other
alternative dispute resolution mechanism can proceed.
(2)If the proceeding is adjourned, any time limit applicable to
the proceeding is suspended.
(3)If, as a result of a family conference, mediation or other
alternative dispute resolution mechanism, a written agreement
is made after a proceeding is commenced to determine if the
child needs protection, the director may file the agreement with
the court.
Confidentiality of information
24 (1)A person must not disclose, or be compelled to disclose,
information obtained in a family conference, mediation or
other alternative dispute resolution mechanism, except
(a)with the consent of everyone who participated in the family
conference or mediation,
(b)to the extent necessary to make or implement an agreement
about the child, (c)if the information is disclosed in an
agreement filed under section 23, or (d) if the disclosure is
necessary for a child's safety or for the safety of a person other
than a child, or is required under section 14.
(2)This section applies despite section 79 of this Act and
despite any provision, other than section 44 (1) (b), (2), (2.1)
and (3), of the Freedom of Information and Protection of
Privacy Act. (3)Subsection (2) does not apply to personal
information, as defined in the Freedom of Information and
Protection of Privacy Act that has been in existence for at least
100 years or to other information that has been in existence for
at least 50 years
Family Group Conference
Division 2 – 20 (2) if a director concludes after (a) an
assessment under 16 (2)(b.1) that it is necessary to provide
services, or (b) an investigation under section 16 (2) (c) that the
child needs protection,the director may offer to refer the parent
or, if the parent is unavailable, another family member to a
45

YK Children’s 8. If a director and a person
Act are unable to resolve an
issue relating to a child in
respect of a process or
service under the Act, they
may agree to mediation or
to another alternative
dispute resolution
mechanism as a means of
resolving the issue. S.Y.
2008, c.1, s.8
NWT/ Child and No provision in the Act
Nunavut Family
Services Act
family conference coordinator (applies whether or not the child
has been removed)
If the offer is accepted, the family conference coordinator may,
after talking to the parent or other family member, convene a
family conference.
Alternative Approaches in Legislation: Family Conference,
Co-Operative Planning Process
Definition: “cooperative planning” is a collaborative, inclusive
process, such as family conferencing, by which the parents, the
child (if able to understand the process), extended family, First
Nations (if the child is a member of one), and other persons
(whether professionals or nonprofessionals), who are involved
with the child collectively plan for the child;
How and When is ADR utilized?
6. (2) A director shall offer the use of a family conference or
other co-operative planning process (a) as set out in subsection
44(1), when developing a case plan for a child who the director
believes is in need of protective intervention; and (b) as set out
in subsection 18(2), when developing a case plan for a child
leaving the custody of the director.
(3) The director may offer the use of a family conference or
other co-operative planning process in any other situation when
developing a case plan for the safety or care of a child or
support services to be provided to a family. S.Y. 2008, c.1, s.6
44(1) A director shall offer the use of a family conference or
other co-operative planning process referred to in section 6 if
the director believes that a child is in need of protective
intervention and the director (a) has commenced or intends to
commence an application to a judge under (i) section 35, (ii)
subsection 38(7), (iii) subsection 39(4), or (iv) subsection
60(1); or (b) is considering entering into a voluntary care
agreement.
(2) The purpose of the family conference or other co-operative
planning process is to develop (a) an interim case plan for the
short term safety and care of the child, where applicable; and
(b) a case plan for the long term safety and care of the child.
(3) The director shall offer the use of the family conference or
other co-operative planning process (a) before the presentation
hearing, with respect to an application for a supervision order
under section 35 or for an order that the child is in need of
protective intervention under subsections 38(7) or 39(4); and
(b) before the hearing with respect to an application for a
subsequent order under subsection 60(1). S.Y. 2008, c.1, s.44
No Current Program
46
Appendix B

47
48
49
50
51
52
Appendix C

Referrals

What is the current referral process for child protection mediation in your jurisdiction, including
how and by whom referrals are received for mediation and screening criteria/tools used to
determine whether referred cases move forward with mediation? Who is ultimately responsible
for deciding which cases are sent for mediation?

Program Model/Evaluation

Of referred cases determined to meet criteria for child protection mediation, what percentage of
cases are successfully mediated annually?

Whose responsibility is it to ensure program evaluation and monitoring?

At what time is child protection mediation typically utilized in your jurisdiction – i.e. prior to
court action/preliminary court hearings/permanency planning, etc?

Financials

What is the overall program budget for child protection mediation, including annual budget,
additional revenue from stakeholders/grants, and average cost of mediation per referral? And,
who is responsible to cover mediation costs?

53