Professional Documents
Culture Documents
CPM Paper Final
CPM Paper Final
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
1
PREAMBLE
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
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.
2
TABLE OF CONTENTS
PREAMBLE……………………………………………………………………………..….….…2
INTRODUCTION…………………………………………………………………………..….…5
LITERATURE REVIEW…………………………………………………………..………….….7
Program Design………………………………………………………………………...…9
Program Funding……………………………………………………………………..….10
Referral Process……………………………………………………………………..…...11
Eligibility Criteria……………………………………………………...….…..…13
Program Oversight……………………………………………………………..………...14
Mediator Roster……………………………………………………………….….….......16
PROGRAM EVALUATION………………………………………………………..……...…... 18
Settlement Rates……………………………………………………….…….…………...19
Participant Satisfaction…………………………………………………….…………… 20
BARRIERS TO SUCCESS…………………………………………………………………..….21
Utilization Rates……………………………………………………………...............….21
Promotion of CPM………………………………………………………………………23
Participant Buy-In………………………………………………………….....................23
INDIGENOUS LENS……………………………………………………………...……………24
3
CONSIDERATIONS FROM STAKEHOLDERS…………………………………………..…. 27
REFERENCES………………………………………………………………….……………….37
APPENDICES………………………………………………………………….……………….40
4
INTRODUCTION
Service delivery and policy development within Child & Family Services is undergoing
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
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
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
“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
5
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
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
For the purpose of this paper, “Child Protection Mediation” is defined as:
workers, family and any other person work together with the aid of a trained and
Keywords: Child Protection Mediation, CPM, child welfare, child protection, program
6
LITERATURE REVIEW
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
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,
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
7
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
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).
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
8
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
Nova Scotia was the first province to systemically promote CPM and appeared to get off
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
9
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,
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
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
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
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
(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
12
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
safely advocate for his or her needs and interests of anybody’s safety may be endangered as a
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.
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).
13
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
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
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
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
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).
15
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
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,
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
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
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
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
17
PROGRAM EVALUATION
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
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
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).
18
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.
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
20
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
BARRIERS TO SUCCESS
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
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
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
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
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
and a marketing initiative to ensure that families, social workers, lawyers, and judges are aware
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
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
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
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).
communities, child welfare organizations must shift away from traditional bureaucratic and risk
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
Information in this section was provided through consultation with Mark LaForge, Program
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
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
Criteria for CPM appears to be a challenge for front line social workers in New
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
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,
2018 5
2017 16
2016 13
2015 5
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
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
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
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
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
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
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
Based on the findings of this project, the following recommendations are made to ensure
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
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.
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).
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., Robertson, I. & Clarke, A. (2009). Building a Child Protection Mediation Program
In British Columbia. Family Court Review, vol. 47 (1), 86-97.
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 Alternative Dispute Resolution
Territory Legislation
PEI Child S. 16 (1) “Subject to the Definition: 1. (c) “alternative approach” means a method for
Protection regulations, where the developing a plan of care for a child through mediation, joint
Act Director has determined planning conference, family group planning conference or such
that a child is in need of other method of dispute resolution or joint planning as the
protection and no Director considers appropriate;
agreement has been made
with the parent of the child Alternative Approaches in Legislation: Child Protection
respecting child protection Mediation, Family Group Conferencing
services, the Director may
initiate an alternative No Current Program
approach to developing a
plan of care for the child.”
NB Family 31.1(2) The Minister shall Alternative Approaches in Legislation: Immediate Response
Services Act consider using the Conference, Family Group Conference, Child Protection
collaborative approach of Mediation
mediation or a family group
conference in establishing, How and When is ADR Utilized?
replacing or amending a
plan referred to in 31.1(1) Where the Minister has determined, after completing
subsection (1). 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(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
Confidentiality:
41
accordance with this Act or any other applicable law
NS Children and 21 (1) An agency and a Alternative Approaches in Legislation: Risk Management
Family parent or guardian of a Conference, Child Protection Mediation, Family Group
Services Act child may, at any time, Conference
agree to the appointment of
a mediator to attempt to Referral:
resolve matters relating to
the child who is or may In a Risk Management Conference, the CPS worker and the
become a child in need of supervisor decide what cases should be referred to mediation
protective services. (based on 11 criteria).
Protection hearing
Disposition hearing
42
mediation or another form Definition(s): (a) "alternate dispute resolution" means a
of alternate dispute process for resolving disputes, other than litigation, that is
resolution to establish, approved by the provincial director;
replace or amend the plan
referred to in section 12 . (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;
No Current Program
Criteria:
43
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
MB The Child Alternative Approaches in Legislation: Not indicated
and Family
Services Act Foster Parent Appeals Regulation, Subsection 4(1) :
44
agree to mediation or other Court Work Supervisor reviews and refers cases to mediation.
alternative dispute
resolution mechanisms as a Mediation or other alternative dispute resolution
means of resolving the mechanisms
issue.”
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.
Confidentiality of information
45
family conference coordinator (applies whether or not the child
has been removed)
(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
NWT/ Child and No provision in the Act No Current Program
Nunavut Family
Services Act
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?
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