Mediation and empowerment in child protection cases

RESEARCH

Mediation and Empowerment in Child Protection Cases Allan E. Barsky Child protection workers are vested with certain powers and authority to ensure the safety and weyare ofchildren. When issues of neglect and abuse arise, workers are challenged with how to promote self-determination and autonomy offamilies, without putting children at risk. The participant-jocwed study reported here examined how mediation might have an empowering effect on family members. Participants suggested that mediation empowers through jour processes: development of options, equal opportunity to participate in the process, decision-making responsibility, and power balancing.

The underlying purpose of the child protection (CP) system is to safeguard children from abuse and neglect. This interest, however, is balanced with two related principles: First, the state ought to support the integrity and autonomy of the family; and, second, in cases where intervention is required in order to help a child or family, the least restrictive or disruptive course of action should be taken (Bala, Hornick, and Vogl. 1991; Dingwall, Eekelaar, and Murray, 1995; Solnit, Nordhaus, and Lord, 1992). Essentially, the least intrusive way for a state agency to ensure the safety of children is by working on a voluntary and consensual basis with the family. Two concerns often expressed about the CP system are that (1) some parents involved in the system are alienated and disempowered by it and (2) as a result many of these parents feel resentful and angry toward their child protection workers (CPWs). Given these conditions, it can be extremely difficult, if not impossible, for parents and CPWs to work together on a truly voluntary and consensual basis.

Mediation, which only relatively recently has been introduced as an option for appropriate CP cases, may prove to be a remedy to some of the problems related to client alienation, disempowerment, anger, and resentment. Empirical research into CP mediation to date has been limited (Campbell and Rodenburgh, 1994; Golten, 1986; Mayer, 1987; Oran, Creamer, and Libow, 1984; Savoury, Beak, and Parks, 1995; Wildgoose and Maresca, 1994). While this research has looked at issues such as participant satisfaction,compliance, efficiency, and rates MEDIATIONQUARTERLY,vol. 14, no. 2, Winter 1996 OJossey-BassPublishers

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of settlement, there has been little focus on whether mediation is indeed an empowering process, as its proponents have argued.

Participants in the present study indicated that mediators were able to help the parties deal with a range of issues, including difficulties in cross-cultural communication, insufficient social support for the parents, lack of trust between CPWs and parents, and the adversarial relationships that are often created when there is lawyer and court involvement (Barsky, 1995). Participants’ responses suggest, however, that while some family members experience empowerment in the mediation process, there is reason to question the voluntariness and fairness of mediation in a context where the alternatives (especially court) are limited and are perceived as being “stacked against one side.”

Literature Review The theoretical framework for this study encompasses three fields: empowerment, child protection, and mediation (as used in the CP context).

Empowerment. The concept of empowerment has been promoted in a range of human services professions, but it is often criticized as being “ubiquitous” or “ill-defined” (Breton, 1994; Torre, 1986). The term was popularized in the social work literature by Solomon (1976). She described empowerment as a process whereby persons who belong to a certain stigmatized social category throughout their lives can be assisted to develop and expand their skills in the exercise of interpersonal influence and the performance of valued social roles. In the education literature, empowerment is recognized not only as an instrument for teaching and learning but also as a liberating political tool for the disadvantaged (Freire, 1970).

The term empowerment has been used in the mediation literature to refer to different things. Some writers define empowerment as a means of power balancing. In this sense, the role of the mediator is to ensure that the process of negotiations between parties is fair. If one party is more powerful than the other, then the mediator may empower the weaker party through a variety of interventions that put the parties on a more level playing field (Regehr, 1994).

This conception of the role is contentious, as some writers believe that the mediator must be a neutral third party If the mediator acts in a way that redistributes power, then the parties may see this as evidence of mediator bias against the more powerful party. If the mediator does not act to redress power imbalances, then the mediation process may be perceived as unfair (Susskind, 1981; Stulberg, 1981). For other writers, the empowering aspect of mediation simply reflects the fact that mediation gives decision-making power to the parties directly involved in a dispute (for example, Coogler, 1978). In this sense, mediation is often contrasted to a court situation, where decision-making power is given to the judge rather than to the parties. Finally, empowerment in mediation has been defined as a process that facilitates self-determination,

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choice, and autonomy (Bush and Folger, 1994). From this perspective, mediation serves to empower participants by helping them (1) to identify more clearly and to better understand the importance of their goals and interests; ( 2 ) to become more aware of the options available to them and their control over those choices; ( 3 ) to establish and enhance their conflict resolution skills (listening, communicating, organizing and analyzing issues, presenting arguments, brainstorming, and evaluating alternative solutions); (4) to become aware of available resources needed to achieve their goals and objectives; and (5) to reflect, deliberate, and make decisions for themselves about what they want (Bush and Folger, 1994).

Despite the efforts of writers to develop a comprehensive and broadly accepted understanding of the term empowerment, its definition depends in part on the context in which it is being applied. The present research looked at what empowerment means in the context of CP mediation.

CP System Now in Place. Under the current CP system, CPWs serve a number of frequently conflicting roles. On the one hand, CPWs are in a position of authority, given their legal responsibility to safeguard children from serious harm; their duties include conducting investigations,making recommendations to the court, cooperating with the police in criminal investigations, and monitoring court orders for enforcement (Mayer, 1987). On the other hand, CPWs are professional agents of social change; in the roles of counselor, case manager, and family services provider, CPWs value client self-determination and cooperative working relationships. Alliance between the family and the intervention system is not just a professional ethic but a necessary condition for effect.ive intervention to occur (Maidman, 1984; Mayer, 1987). Even though CPWs and CP agencies stress their helping roles, they are still frequently perceived by parents as policing and enforcing agents of the state. Given the authority of CPWs to remove children from their parents’ care, there is a significant power imbalance between CPWs and their clients (regardless of whether children are actually removed).

Power imbalances between CPWs and their clients result not only from the protection role of the CPW but also from differences in socioeconomic status: level of education, employment, culture, and language. Among families involved in the CP system, there is disproportionate representation of children from backgrounds of poverty and other socially disadvantaged populations (Dingwall, Eekelaar, and Murray, 1995; Maidman, 1984). Regardless of socioeconomic background, clients face informational and cultural barriers when they become involved in the CP system. Whereas CPWs are very familiar with the law and the CP process, the system is generally foreign to new clients.

The power imbalances may become more severe when lawyers and court procedures are added to the process. When these factors come into play, there tend to be more formalities and greater use of technical language. The parents’ level of fear or anger may also be raised (Maidman, 1984). As a result, parents may feel alienated and be less capable of fully participating in the legal process.

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In contrast, some parents may feel more empowered by having the services of a lawyer to explain the process and to advocate on their behalf. The trial process may also empower parents because it is open to public and judicial accountability (Mnookin and Kornhauser, 1979). Whereas a CPW may use undue coercive power when working privately with parents, such coercion would be subject to legal scrutiny and principles of equity in a court setting.

While the foregoing analysis suggests that CPWs and courts can exert significant power over parents and families, parents are far from powerless inasmuch as they can draw on their legal rights and freedoms. Both CP legislation and constitutional protections place limits on state intervention into the lives of individuals and families (Burak, 1988). Parents also derive power from the fact that the CP system values the autonomy of the family and recognizes the potentially negative impact of removing children from their homes. Child welfare laws generally include a presumption favoring the status quo, and CPWs have the onus of demonstrating that intrusive measures are required. In part, these laws reflect society’s political beliefs about the role of the state. However, the preference for voluntary intervention is in part based on the recognition that, short of removing a chijd from parental care, imposed interventions are difficult to enforce. As parents learn how the system operates, they become more aware of their choices and how to avoid negative reactions from the system.

Mediation in CP Cases. Research and commentary on the use of mediation in CP cases dates back to the mid 1980s, although there were ad hoc attempts at using CP mediation prior to that period. The first articles proposing mediation reviewed then-current literature on child welfare and speculated about how mediation might be used in this context (Mayer, 1984; Oran, Creamer, and Libow, 1984; Wiig, 1984, Wildgoose, 1987). As mediation pilot projects were developed in Denver, Los Angeles, and Hartford in the United States and in Toronto and Victoria in Canada, as well as in other areas, research started to document the implementation and outcomes of mediation in CP cases (Golten, 1986; Center for Policy Research, 1992; Wildgoose and Maresca, 1994; Campbell and Rodenburgh, 1994).

Research to date has looked at satisfaction levels of the parties, rates of settlement, and the cost-effectiveness of mediation. A body of data supporting the efficacy of CP mediation is beginning to emerge: (1) A significant number of cases that the parties could not settle themselves prior to mediation do settle in mediation. (2) Overall, 60-95 percent of participants in mediation (including family members, CPWs, and lawyers) report satisfaction with the mediation process. ( 3 ) Evaluations of CP mediation projects in Toronto and British Columbia recommend the continuation of CP mediation services. (4) Government and other public funding sources in a number of Canadian provinces have started to provide financial support to CP mediation services based on the belief that this type of intervention process is productive. ( 5 ) CP mediation has been promoted by judges, administrators, children’s legal representatives, and other officials in the CP process (Center for Policy Research, 1992; Campbell and

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Rodenburgh, 1994; Wildgoose and Maresca, 1994; Pearson, Thoennes, Mayer, and Golten, 1986; Smith and others, 1992). Mediation is not necessarily better than other CP processes, but it seems to be useful in certain types of cases.

Mediation is said to empower those who participate in the process, but there is little research showing how the concept of empowerment relates to the actual experiences of participants in CP mediation. The present study explored the experiences of participants in CP processes, with and without mediation.

Methods In order develop a better understanding of the dynamics of CP mediation, this study used naturalistic inquiry methods (Denzin and Lincoln, 1994). From March 1992 to May 1994, I conducted exploratory “long interviews” (McCracken, 1988) with adult family members, CPWs, and mediators who had been directly involved in five cases from the Centre for Child and Family Mediation in Toronto. Based on criteria described below, a comparison group of three CP cases without mediation was selected, and the family members and CPWs involved in these cases participated in interviews similar to those conducted with the parties involved in the mediated cases.

All of the center? cases were considered for participation in this study; however, the final sample of cases was based substantially on availability The pool of cases drawn from was relatively small, since the center mediated approximately thirty cases over the research period. Further, some parties did not wish to participate in the research because of outstanding issues in their cases, or because they did not want to have to tell their stories all over again to another “outsider.” In comparing the demographics, issues, and dynamics of the cases selected for the study with the center’s overall pool of cases, I found that the cases involved in the research were relatively typical (Denzin and Lincoln, 1994). Although lack of consent made it impossible to collect hard data on the nonresearch cases, the following impressions emerged from my comparison of a prior evaluation of the mediation project (Wildgoose and Maresca, 1994) with the information collected for the research cases: First, the research cases involved a range of CP issues that well represented the general pool of cases handled by the center (including neglect, abuse, wardship, access, and supervision). Second, as in the center’s general caseload, the research sample included both cases that settled and cases that did not settle in mediation. However, the levels of conflict in some of the nonresearch cases that did not settle may have been higher than the levels of conflict in the research sample. None of the research cases proceeded to trial following mediation, whereas the center had cases that went to trial. Given this limitation, it may be inappropriate to generalize from this research to cases that cannot be resolved in mediation and need to be tried in court.

Third, the range of parties involved in the research cases-including CPWs. parents, grandparents, extended family members, and foster parents-was

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similar to the range of parties dealt with in general by the center. Fourth, the range in the number of mediation sessions in the research sample (three to eight) was similar to that in the general range of cases dealt with by the tenter. Fifth, the families involved in the research cases had one to two children, ranging from infants to teenagers. The center had worked with a similar age range, although some of the families had more than two children. Sixth, the research sample included families from a range of ethnoracial groups, as well as from a range of economic classes. These ranges were similar to those dealt with by the center, except for one grouping: The center had dealt with clients who were not fluent in English; the parties involved in the research sample were all fluent in English.

Drawing a relevant comparison group of nonmediation cases required more purposive sampling. Research to date has failed to clearly identify which factors are important in comparing mediation and nonmediation cases. In order to select appropriate nonmediation cases, I worked collaboratively with service providers from the center and from the CP agencies in order to identify selection criteria. One of the most important factors to consider was the type of interventions used in the nonmediation cases. Some types of interventions in the CP process engender philosophies related to those underpinning mediation, such as solution-focused therapy, case conferencing, and plan-ofcare meetings (Tjaden, 1994; Bernstein, Campbell, and Sookraj, 19931.' Accordingly, in order to explore whether mediation is qualitatively different from other CP processes, 1 tried to select comparison cases in which mediation-like interventions were employed.

Table 1 provides a summary of the cases involved in the research. For ease of reference, the role of each participant is identified by the initial of his or her pseudonym: mother (M),father (F), grandparent (G),child protection worker (C), mediator (J), foster parent (B), and interviewer (I).

Findings The following sections describe four ways in which various parties suggested that mediation contributed to the empowerment of the family members: development of options, equal opportunity to participate in the process, decisionmaking responsibility, and power balancing.

Development of Options. According to proponents of mediation, one of its advantages is that it encourages parties to explore options that they had not previously considered. When family members believe that they have no choices or that their choices are limited, their right to self-determination is diminished. To the extent that mediation expands the choice set for family members, the process can have an empowering effect.

Within the research sample, mediators encouraged the parties to keep open minds, consider new options, and look for creative solutions. Parties were able to go beyond focusing on their original positions. Some of the parties

Yes

Wardship versus return home, access, neglect, physical abuse Terms of return, neglect, alcohol abuse

Yes

Yes

Mary Frank Carla Jennifer

Mara Greta Cathy

1

2

Yes

NIA

Foster home versus family, neglect, cultural conflict Terms of return, desertion. neglect

Yes

No

Betty Claudia Jean

Fritz Chelsey

3

4

JOY

Yes

Presenting Issues

Child Protection Mediation

Research Participants

Case Number

Settled in Mediation

Table 1. Summary of Cases

No

No

NIA

M's home F's home Cs office J's office Cs office 1's office C's office J's office

B's home C's office J s office F's home C s office

No

No

Yes

No

(continued)

No

Prernediation Interview

Interview Location

Prior Court Trial

Yes

No

Uncle Ray Connie Jane

Melanie Carmen

Genny Cal

6

7

8

Wardship versus terms of return, neglect, alcohol abuse

Discipline, terms of supervision. physical abuse, neglect

Access and child's wishes, neglect

Timing and terms of return, sexual abuse, neglect

Presenting Issues

N/A

N/A

Yes

No

Settled in Mediation

Yes

G's home C's office

N/A

N/A

C's office

M's home No

Yes

Yes

~~

Premediation Interview

Gs home C s office J's office

M's home C's office J's office

interview Location

Yes

No

Prior Court Trial

Note: N/A = not applicable, identifying the nonmediation comparison cases. The role of each participant is identified by the initial of his or her pseudonym: mother (M), father (F), grandparent (GI, child protection worker (0, mediator 0). fostrr parent (B). and interviewer (I).

No

Yes

Myrna Clara Jackie

5

Child Protection Mediation

Research Participants

Case Number

Table 1. Summary of Cases (continued)

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came into the process thinking that either one side was going to have to give in or there would have to be a compromise where both sides had to give in.

The mediators explained that the outcome of mediation did not have to be a win-lose proposition. Upon signing an agreement for mediation, the parties generally accepted that the purpose of the process was to work toward a mutually beneficial outcome. This required that the parties change the ways in which they viewed their conflicts. As one CPW suggested, “Jean asked people to come in with an open mind, and to be willing to say that maybe it could be a different way.”

CPWs wanted to demonstrate to family members that they were willing to look at different options with them. In some cases, the CPWs sensed that family members viewed them as inflexible. The following statement of a CPW typifies their belief that mediation allows them to present their concerns about children’s welfare needs but still be open to considering different ways of satisfying those needs: “I think [mediation] was a way of distancing the [CP agency] as being the one sort of making a plan. The perception of the family is, you know, that we have a plan, but the judge just sort of rubber-stamps what we do. It would show you as a parent that we were willing to talk over different options, lay down our concerns on the table, but still looking at different ways to deal with it.”

One of the ways in which the mediators encouraged parties to consider new options was to give them “homework,”in each case asking them to take time before the next session to think about different possible plans. The parties were to write down their plans and bring them to the following meeting.

In one case, the family had prepared their options but the CPW had not done her own homework. The CPW felt somewhat embarrassed by this, but it did not stop the process of exploring different options. In fact, because she saw the family’s sincerity and commitment in doing their homework, she was more open to their options.

Another method to develop options was the use of brainstorming. The mediator instructed the parties to identify as many ways of dealing with the issue as they could. In some cases, the mediator would put out suggestions.

The participants generally appreciated these suggestions. Both CPWs and family members felt “stuck in their conflicts, and having a third party was useful in terms of the mediator’s fresh outlook and experience. If the mediator was able to suggest a solution that could avoid court, the parties were particularly willing to consider it.

The mediators were conscious of the potential power that they had in offering certain suggestions. They did not want to have too much influence over the final decisions of the parties. If a mediator put out only one option at a time for the parties to consider, then one of the parties might view the mediator as biased. Alternatively, the parties might accept the mediator’s suggestion without fully exploring other possible solutions. One mediator explained that her preference was to provide several possible options to stimulate the parties’

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thinking. None of the parties felt coerced into accepting any of the mediators’ suggestions. However, family members were split on how much influence the mediators’ suggestions had on the agreements ultimately reached. The following dialogue between two parents in the same mediation illustrates how much their perceptions differed on this issue: Yes, that’s what it did. Most of the ideas that came up were ones that Jennifer suggested.

FRANK: Half ours, half theirs [the protection agency’s].She just brought them to view.

MARY: And she’d make a suggestion on her own. That would be the one that we took.

FRANK: Sometimes, she took some of our suggestions, and sometimes a bit of theirs, and sometimes a bit of ours and a bit of theirs, and, together, that would be the agreement that we would come up with, which worked out quite nicely.

MARY (later in the interview): 1 think Jennifer had more [influence on the decision], , , , Like, we would say something, and Children’s Aid would say something, and she would say something basically totally different, but sounded more reasonable. . . . Jennifer had a lot to do with it . . . how we got a lot of things, like the one week to eight weeks [access schedule]. I t was basically Jennifer that came up with that, because the Children’s Aid only wanted every second week.

MARY:

Whereas Mary thought that the parties had simply adopted a suggestion that the mediator made, Frank thought that all of the parties, including the mediator, contributed to the development of a creative solution to the issue of an access schedule.

One of the ways in which the mediators tried to make consideration of different options more palatable to the parties was to present these options as trial arrangements. In case 2, for instance, the arrangement was put forward as an interim agreement. In that way, the parties could test the arrangement and see how it worked before making a final commitment.

Interim agreements were found to be useful by the parties in two other cases. If the trial arrangements did not work out from the CPWs’ perspective, they were not risking as much as they would have if the arrangements were presented as final solutions. If the options under consideration were not completely satisfactory from the family members’ perspective, the fact that the arrangements were presented as trial options might make them easier to consent to. In each case, the family members could try out the option without making a firm commitment. If it worked out, then they could continue on with the same arrangement or try to build on it. If the option did not work out from the family’s perspective, they were not committed to the arrangement indefinitely.

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The following list outlines some of the options generated in mediation: In case 1 , the parties were negotiating schedules for parental time with two children who were living in foster homes. The alternatives being considered were based on a bi-weekly schedule. All of the original options had the parents spending time with both children together. The conflict appeared to be over the amount of time that Mary and Frank spent with the children. The mediator encouraged them to look not only at the amount of time but also at the quality of time and how it would be spent. This suggestion opened up a number of new options. In the end, the parties agreed that a mix of individual and joint time with both children was better. The two children had different interests, which the parents could accommodate if they saw the children individually on some occasions. The children did not want to be spending every weekend with their parents, since most of their activities and friends were closer to their foster homes. By alternating joint and individual visits, the parents were able to spend time with at least one of their children on most weekends. Also, the children were able to spend some of their weekend time with friends in the communities where they were living.

In case 2, the child was placed in the care of her grandmother, Greta, due to protection concerns. Originally, the options appeared to be continuing to have Greta take care of the child, or returning the child to MaraS care. Ultimately, the parties agreed to a form of joint custody. If, over a period of time, Mara was able to meet certain conditions of taking care of her daughter, then the child would eventually return to the primary care of her mother. This satisfied Greta’s and the CPWs concern about the child’s safety, since Greta would remain as a care provider when needed. From Mara’s perspective, she was reassured that Greta was not trying to keep the child indefinitely These arrangements brought the case closer to a domestic, family law agreement (and less threatening to Mara) as opposed to a CP agreement.

In case 3 , the foster parents wanted to adopt the child in their care, but the child’s father wanted her to be taken care of by a member of his own family. The mediator was able to move the parties beyond these two options, and eventually they agreed that the foster parents would have custody of the child, with provisions of access for the father and other family members. This agreement allowed the father to continue to participate in his child’s life, while meeting the child’s interest in continuing to live with her foster parents, with whom she had developed a close attachment. As in case 2, the final agreement looked more like a domestic agreement than a CP agreement, while still dealing with serious protection concerns.

In case 5 , Myrna wanted her son returned from foster care immediately.

The agency wanted to keep him in care six months longer than agreed on when Myrna placed him there on a voluntary basis. During mediation, the parties continued to negotiate about the length of time that the child would be kept in care. The main area of innovation reported by Myrna and her CPW, Clara, was that the mediator had them look at incremental agreements. Rather

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than focus on the length of time the child remained in foster care, they looked at options for visitation in the meantime and services that Myrna could use to facilitate her son’s return home.

In case 6, the child was in foster care. A court order provided that the child would have access to his uncles and grandmother. The family had received mixed messages about whether the child wanted to spend time with them. Eventually, the child said that he preferred not to spend time with his family. One option, first presented by the parties, was to maintain the access order and encourage the child to spend time with family members. They tried to do this on an interim basis, but the child said that he did not want to spend any more time with his family The family members said that they wanted to spend time with the child but did not want to force him to do so. The other option, raised by the CPW, was to change the court order to no access, so that the family would not be in breach of the order. The mediator suggested that they consider agreeing to a court order that would allow access, but make it conditional on the child’s wishes. All of the parties accepted this arrangement, respecting the child’s wishes while leaving the door open to the possibility of reestablishing access in the future.

This rough summary of the original positions and the options generated demonstrates how mediation did allow the parties to consider a broader range of options than those with which they came into the process. Thus, mediation tended to have an empowering effect.

One of the questions raised in the nonmediation cases was whether or not other types of CP processes could also expand the option set. Both solutionfocused intervention and case conferencing make extensive use of option generation as a part of their approaches. In case 7, for instance, both Carmen and Melanie said that Melanie was encouraged to explore different options for disciplining her son. Melanie described the process of generating options as follows: “I guess it was like, you know, ‘How would you feel about, just, you know, picking him up, putting him in his bed, and then going back to whatever you were doing? And then having to do it repetitively, until he got the message?’ . . . And I said, ‘Well, I couldn’t do it, because I’d just get pissed off and frustrated . . . and screaming,’ right? So, then they would suggest, ‘Well, why don’t you try it another way?’You know, they would come up with some suggestions. They wouldn’tjust sort of leave me hanging there, right? And nine times out of ten we would go see a therapist, you don’t get that answer back. . . . And they were trying to give me different alternatives to this method of madness here.”

Melanie perceived that solution-focused intervention was used to help her focus her thoughts and come up with solutions to problems. In the nonmediation cases, alternative approaches to generating options seemed very similar to the approaches used in mediation. Both mediation and solution-focused intervention use a third party who is able to provide a “fresh look at the issues.

Just as in the mediation cases, the solution-focused CPW in case 7 encouraged

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the use of brainstorming but also provided suggestions to stimulate the client’s thinking.

In case 8, the CPW Gal also used option generation in his conference with the family members. The mother and the maternal grandmother were more receptive to looking at different options with Cal than were the other grandparents. Whereas the mother and the maternal grandmother had a good working rapport with Gal, the other grandparents believed that Gal was biased against them. Cal said that he tried to be flexible about the options that the family members could consider, and that he tried to empower them by giving them as much control over decision making as he could.

In case 4, option generation did not play a role in how Chelsey and Fritz resolved the CP issues. Chelsey had identified certain protection concerns that had to be taken care of in order for the children to remain with Fritz. They did not really explore other options.

Cases 7 and 8 illustrate that option generation can play an essential role in protection processes other than CP mediation. CPWs are able to use techniques such as brainstorming and offering suggestions. CPWs are also capable of being creative and innovative. If a CPW and family are stuck in a conflict, the CPW has access to supervisors, lawyers, and other coworkers to make suggestions. In fact, in case 5, the agency used a team meeting to explore different options.

If there are differences in option generation between mediation and nonmediation cases, then they may be related to the type of relationship obtaining between the CPW and family members. If the parties do not have a good rapport, then the mediator has an advantage in engaging them in a process of option generation. The mediator may also have an advantage in empowering the family members, since the mediator has had no prior involvement in the process and has no stake in a particular outcome. Without these influences, the mediator may have fresh perspectives and may be able to encourage the parties to consider a broader set of options.

Equal Opportunity to Participate. One of the key aspects of mediation identified by the parties was that the mediators ensured that all of the parties had an equal opportunity to participate in the discussions and negotiation process. Family members emphasized how the mediators treated everybody in an impartial manner, giving everyone the same opportunity to speak and listening to all sides: “[The mediator] never sided with us, or not really sided with us and not sided with Children’s Aid workers. She always tried to keep it into a medium. . . . At the beginning of every meeting she would say, ‘Okay,well, I am not here to take your side or your side. 1 will sit and listen to both sides.”’

These sentiments were mirrored by CPWs, who noted that the mediators asked all parties for their points of view and gave everyone’s input the same treatment. Working for both sides was identified as a sign of mediator neutrality: “Everybody had an opportunity with each question that Jean would ask, and not cutting people off. . . very consciously to give people equal time. . . .

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Jean’s neutrality was . . . appearing to give everyone equal footing and to consider everybody in the decisions, asking everybody’s opinions about a decision.

Uean was] moving us along, but not appearing to come down on one side or the other.”

The mediators were also conscious of how aligning or even appearing to align with one side would compromise their neutrality. If they met individually with one party, then they were sure to meet individually with all of the parties. The mediators generally held the mediation sessions at their own offices, rather than at the CPWs’ offices or at the families’ homes, so as to avoid the appearance of siding with one party They also tried to ensure that everybody’s voice was heard within the mediation sessions by giving everyone a chance to speak and by asking questions to solicit each party’s opinions.

These mediators’ efforts at neutrality tended to have an empowering effect on family members. During private interactions between family members and the CPW, the CPW was responsible for controlling the process and setting the agenda. The CPW defined the CP concerns and the need for corrective actions.

Various family members had difficulty articulating their interests and advocating for their own positions. The involvement of a mediator who gave everyone an opportunity to speak generally meant that family members had more say in the decision-making process.

Tjaden’s (1994) study of case conferences between family members and CPWs (without a mediator) provides an interesting comparison. Tjaden found that family members rarely asked questions, raised their own issues, or challenged position statements made by CPWs in conferences facilitated by the CPWs. In terms of how these conferences were staged, Tjaden concluded that CPWs rarely explained the purposes or agendas of the meetings. Further, CPWs tended to switch back and forth between topics in a manner that was selfserving. In doing so, they were able to avoid tough questions from family members or other emotion-laden issues that they did not want to have to address.

By controlling the flow of the discussion, CPWs can consciously or unconsciously disempower family members. When mediators are made responsible for facilitating the process, they can ensure that all of the parties have equal opportunity for discussion and input.

The nonmediation cases in the study raised the question of whether this aspect of empowerment is unique to mediation. Participants in two of the nonmediation cases provided a number of examples that demonstrated that the family members were given significant opportunity to participate in the discussions and problem-solving processes. For example, in case 7, the CPW, Carmen, employed a solution-focused approach to her work. The mother, Melanie, was brought into the CP system because she had limited parenting skills when her son was born. Carmen allowed Melanie to define the problems that she wanted to work on and also encouraged Melanie to come up with her own solutions. Although the protection concerns were ongoing, Melanie felt that Carmen allowed her to have most of the input into how decisions were

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made. In case 8, the CPW, Cal, engaged the family in a case conference. Cal acted as the facilitator of the process. Most of the family members felt that they had had real input into the discussions. Similar to mediation, Cal ensured that everyone had the opportunity to speak and that everyone listened to one another.

These examples illustrate that CPWs are able to give family members equal say in the process in a way that is similar to that used by mediators. Still, mediation may serve a unique function. In private dealings between CPWs and family members, CPWs may not have sufficient incentives to engage family members fully in the discussions. Given that their primary mandate is to ensure the welfare of children, they may find it more expedient to limit the involvement of family members in the CP process. In contrast, one of the primary functions of mediators is to ensure that all of the parties have a say in the process. The mediators are not ultimately responsible for ensuring the welfare of the children involved in their cases. Accordingly, mediators can focus their efforts on empowering the families through involvement in the negotiations, leaving the primary responsibility for ensuring the children’s protection to the CPWs. Decision-Making Responsibility. Both CPWs and mediators in the study suggested that one of the critical aspects of mediation is that mediators do not have any decision-making authority As the CPW in case 4 said, “Well, I had the authority that I could, you know, I mean the court makes the final decision, but I think we really make the final decision as to whether or not the kids go home. In terms of assessment, we advise the court. So Fritz knew I had the authority. So I think that’s the major difference. You know, mediators are neutral. We’re not neutral. We’re certainly fighting for those kids, to get the best that they can in terms of planning and care. . . . [Fritz] sees me as having power and authority, definitely” Whereas CPWs have the mandate and power to remove children from their homes, initiate a CP hearing, and make recommendations to the court, mediators have no legitimate power to impose decisions on the parties and have no direct reporting obligations to the court.

Although some family members valued the experience of working with mediators who had no decision-making power, others did not believe that the question of who had decision-making power was the most important issue.

Their explicit concern was not so much about whether the third party had decision-making power but whether the person with power was biased or otherwise sided against them.

Some family members suggested that they did not really want decisionmaking power. Instead, they would have preferred to have someone who could make a final decision for them. In cases where different family members had different views as to how the children’s welfare needs could best be met, they did not see how they could ever agree on what should be done. In cases that had been in and out of court, some family members felt that the judges did not want to make any decisions. Issues kept getting held over from one motion to

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the next, and no final resolution was in sight. Eddy (1992) identified a similar issue in his research. He found that decision makers in CP cases are often afraid of making mistakes. First, information available to the decision maker may be vague and incomplete. Second, if a CPW or judge makes a mistake, a child may die and the public outrage will be directed at the people responsible for the decision. For certain family members, having a final decision was more important than being empowered to make the decision for themselves.

To some extent, they viewed the notion of empowering the family as the system’s way of “passing the buck” or avoiding the responsibility for making hard choices and decisions. From this perspective, family members tended to see mediation as empowering if it led to a final decision. However, if the parties did not come to a settlement, then the effect of mediation was seen as just another example of how the system keeps prolonging cases.

Mediation proponents suggest that one advantage of mediation is that it empowers parties by giving them more say in decisions that affect their lives.

However, in CP mediation, one of the parties (the CPW) is a representative of the state. To the extent that the CPW uses bargaining and persuasion (Palmer, 1983) to influence the decisions, the family members may actually be disempowered. When one family member was asked whether he had more of a say in mediation, he responded, “Well, I don’t know if more of a say is a right thing to use, but more understanding as to how [my nephew] is feeling without the biased opinions from the Children Aid or from the foster parents. We get a clear perspective of what he’s thinking and where he’s at, instead of being told, you know, ‘Stan does this, and Stan does that.”’ He did not believe that mediation actually gave him more say into the final decision, but it did allow him to hear more. As a result, he had a greater understanding of his nephew’s needs and wishes, even if he did not agree with the solutions being put forward.

The nonmediation cases provided examples of situations in which the CPWs were able to empower families by giving them decision-making responsibility. The CPWs in both solution-focused intervention and case conferencing adopted client-centered approaches and limited their use of authority. The CPWs encouraged the family members to define the issues and to come up with their own solutions. They were able to allow the family members to make their own decisions, so long as the range of options being considered in each case did not put the child at risk. Although the CPWs were able to pursue this course with reasonable success in the nonmediation cases, they admitted that some situations required them to assert their authority in order to ensure that the welfare needs of the children would be met.

Power Balancing. During the initial individual sessions with the parties, the mediators assessed whether mediation would be appropriate. One criterion that mediators employed was the relative balance of power between the Lamily members and the CPWs. If an imbalance of power was so severe that the mediator did not believe that mediation could proceed fairly, then the mediator would discontinue the process. The following remarks of the medi-

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ator in case 5 illustrate how she was able to provide a detailed assessment of the balance of power between the parties: In terms of the sophistication level, the worker was certainly more sophisticated about resources, about the process, about just being able to articulate things-just more articulate about things than Myrna or her partner. However, Myma was quite capable about putting her needs and her wishes on the table, with some encouragement,with some assistance. She was very clear about having this little boy coming home. She was able to talk very articulately about her routines, what she would do for him, what she perceived his needs to be, how he would fit in with the other child, you know, how the family would work out, that sort of thing. She had investigated a placement for him in September. She had investigated placements for him during the summer and understood the need for him to be involved with the programming. So, although there was inherently this power imbalance, 1 didn’t feel that she was prejudiced in this negotiation. And I thought that she was quite able to hold her own.

The information gathered in the initial sessions was used in later sessions to balance power between the parties.

In many cases, just the involvement of a mediator had a power-balancing effect, without the mediator having to take active steps to redistribute power.

For example, some CPWs and mediators suggested that a potential impact of mediation is that it prevents CPWs from misusing their power and authority because they do not want to look unreasonable in front of mediators. One might question whether this is an appropriate justification for mediation. If the problem is that CPWs misuse their power, then perhaps the more appropriate response is to improve accountability within the traditional system (for example, through supervision, through better selection and training of CPWs, and through better access to judicial review).

The mediators identified a number of ways in which they specifically interJened to balance power. One of the most common interventions was ensuring .hat everyone had an equal opportunity to speak. The mediator altered the pat:ern of discourse between the parties. A number of family members noted that .hey felt that they had more say, and therefore more power, in the decisionnaking process. Others noted that there was greater reciprocity in the bar;aining process: Power balancing was clearly needed in case 2 just to keep Mara involved n the mediation process. During the first joint session she felt overwhelmed )y the criticism of her mother and the CPW. When Mara walked out of that iession, Joy took a number of steps to redress the power imbalance. Joy illowed Mara to speak first at the next session, to enable her to express her eelings and to ensure that the others heard her before they responded. Joy ielped Mara to articulate her issues and put them on the table for discussion.

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Joy also focused the discussion on Mara’s strengths, so that she would not feel overwhelmed by criticisms. By focusing the discussion on Mara’s strengths, Joy was able to get Cathy and Greta to provide support for Mara (Joy did not have to actually state what Mara’s strengths were). A similar dynamic happened in case 3, where the mediator encouraged Betty (a foster mother) and Claudia to provide moral support for Felix. Betty described how she offered support to Felix: “I had the feeling that he felt that he couldn’t do anything, you know . . . that everyone was one-sided. . . . And then, I almost felt that he gave up. . . .

He almost just finally said, ‘‘ ‘Well, I can’t do anything more about it.’ . . . And we tried very clearly to make, make him see that that wasn’t the case. You know, that he had just as much right to be there and to talk about Debra.”

In case 6, Jane said that she coached the family members on how to formulate and articulate their thoughts. She suggested that they come to the next meeting with written notes, detailing a plan that they would like to see happen. She also encouraged Ray to initiate contact with his nephew, Stan, in the interim in order to demonstrate that his interest in spending time with Stan was sincere. The CPW questioned Ray’s intentions, believing that he had made little effort in the past to exercise access with Stan. To the extent that the family members followed these suggestions, they would have more power in future negotiations with the CPW For example, if Ray demonstrated good faith and established interim contact with Stan, then he would have greater moral power in trying to mediate an agreement for ongoing contact.

In case 5, Clara suggested that Myrna would feel less intimidated in mediation than in court. She believed that the formality and adversarial nature of court would make it difficult for Myrna to assert herself. Also, she would probably comply with whatever her lawyer suggested: “The courtroom is not the best of environments for anybody. And I think, because Myrna tends to be compliant and, and she can be intimidated, that [mediation] could be the best thing for her.” Jackie was still concerned that Myrna might be overly compliant in mediation and not assert her concerns. Jackie made use of individual sessions to help Myrna identify her concerns, and helped her to articulate them. When Myrna did not raise concerns with the CPW that she had raised in the individual interview,Jackie asked her why she stopped putting some of her viewpoints forward and whether they were still important to her: “I think she tends to say yes quite easily. So, when she would do that, I’d say, ‘Hold on a second. Do you remember we talked about . . . and I know you had some concerns about . . . doing this or doing that? Are you okay with that? Is it something you can live with? Would you want to do something else?”And in those ways try to help her articulate things which otherwise would have got glossed over.

Jackie believed that these efforts were sufficient in order to ensure that mediation was fair. Myrna agreed that mediation was fair. Jackie suggested that if Myrna continued to be overly compliant, the mediator could have arranged to have the lawyer accessible to her during the session, so that she could have

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some assistance. Generally, the center5 policy is not to have the lawyers actually present in the meetings so that the lawyers do take the decision-making process away from the parties. However, Jackie said that they would try to be creative in order to deal with power imbalances. In contrast, the mediation services in Victoria allowed lawyers or other advocates to be present with the family. Families reported that this type of support had a power balancing effect (Campbell and Rodenburgh, 1994).

The use of focusing the parties on the best interests of the child was also seen as having an impact on the power dynamics between the parties. In case 2, Joy suggested that, prior to mediation, the parties focused on what would happen if they could not come to an agreement. From Mara5 perspective, the case would go to court or the CPW would simply impose a unilateral decision. In mediation, the mediator helped the parties to focus on the child’s best interests. Although court and authority were still possibilities, they were no longer in the forefront of the parties’ minds. The CPW did not hold court over Marak head.

Mediation did not necessarily change the relative power of the parties.

Instead, mediation had an impact on how the parties used their power. Some family members said that they had more say in how decisions were made during mediation than they had previously. They also noted that the mediator helped them to assert their positions with the CPWs. The CPWs, however, retained their power or capacity to influence. If a CPW wanted to exercise her power, she could always terminate mediation. This would return the parties to the relative positions of power that existed prior to mediation. In one case, the CPW noted that the court had sided with her position during previous hearings. She was confident that the court would have decided in her favor if they had to go back to court after trying mediation. Still, she preferred a mediated solution in order to give the family some control over the decision.

One of the ways in which the mediator affected the balance of power between the parties was to decide whom to involve in the mediation sessions.

In two cases, a new partner who was asserting himself as a stepfather was brought into the mediation process to provide moral support for the mother.

The CPWs in both cases questioned whether they were involved in stable relationships with the mothers and also questioned whether their involvement with the family was in the children’s best interests. Prior to mediation, the CPWs did not want to work with the new partners. Each of the mothers and stepfathers suggested that the involvement of the stepfathers in the mediation process helped the mothers to assert their positions more strongly.

In one case, a supervisor wanted to participate directly in the mediation sessions. The mediator was concerned that if the CPW and her supervisor were both involved in the mediation session, then the mother might feel at a disadvantage. The mediator encouraged the supervisor to allow the CPW to represent the agency in the mediation sessions. The supervisor could participate by meeting with the CPW between sessions, and no agreement would

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be finalized until the CPW had an opportunity to consult with the supervisor. The mediator also believed that the front line CPW was less authoritative, reducing the risk of the mother feeling “railroaded” into a decision (particularly because this parent had difficulty asserting her position and had a tendency to want to please the agency). The mediator, CPW, and mother all agreed that the mediation process was fair. The mother did not feel “ganged up on,” as she had felt at a prior plan of care meeting where several professionals were involved.

A problem later arose in this case because the supervisor did not agree with the arrangements to which the CPW tentatively agreed. This type of situation raises the following dilemma for mediators: If all of the decision makers from the agency are directly involved in the mediation process, then there may be a power imbalance and the family may feel that the process is unfair; if the mediator limits the number of agency decision makers in order to redress the issue of power imbalance, then any agreement reached in mediation might be vetoed by persons who have not been directly involved in the mediation process.

Discussion The findings in this research are consistent with Mayer’s (1989) conclusions in his study of the Denver program: (1) Mediation does not change personalities or alter fundamental power realities that exist outside of the mediation process.

(2) Mediation does change the way in which each party’s needs are presented and considered, and how solutions are generated. ( 3 )Whereas a worker’s concerns might dominate the decision-making process between a family member and CPW working alone, a mediator tends to balance the communication and therefore, the input of both parties into the outcome of the process.

The present research has significance for child welfare in a number of areas. First, it challenges the criticism that “empowerment” is an amorphous platitude. Mediators were able to empower family members in four distinct ways: generating options and expanding their perceived choice sets, involving family members in communication with their CPWs on a more equal basis, focusing decision-making responsibility back on the parties, and rebalancing power. The use of qualitative methods allowed for exploration of examples of each of these interventions from the parties’ own perspectives.

Second, this study suggests that while social workers value empowerment, the context of their work often inhibits their ability to empower clients. In the context of child protection work, for example, the CPW may need to exert authority in order to ensure the welfare and safety of a child. Further, family members may view CPWs in a manner that makes it difficult for them to use empowerment techniques. When family members are brought into the CP process, they may view the worker as an adversary who does not really have their best interests at heart. In contrast, a mediator can build trust with the

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family by presenting themselves as disinterested third parties whose role is to promote the interests of all of the parties involved. To the extent that the mediator can build a positive working rapport, the mediator is in a better position to empower clients.

Mediation is not necessarily “more empowering” than social work. In many respects, the empowering roles of mediators are limited. CP mediation is not designed to change broader social structures which disempower family members (e.g., structural discrimination, unemployment, and poverty). Rather, CP mediation is intended to empower family members within existing structures. For practitioners who come from an anti-oppression or structuralist orientation, facilitative interventions are not sufficient for dealing with oppression (Moreau, 1990; Page, 1992). Since the outcomes of mediation are based upon the relative bargaining power of the parties, there is a risk that CP mediation could be used merely to facilitate social control. Further, mediation is a relatively short term intervention. As such, mediation may not be able t o effect change, in and of itself, in terms of deeply ingrained personality traits or patterns of behavior. Although these aspects of mediation limit its ability to empower family members, mediation can be used in conjunction with other types of social work interventions. Advocacy, coalition building, and other radical strategies can be used to empower this population at a structural level (Torre, 1986).

Consistent with this research, Eddy (1992) found that most CPWs were comfortable with the power balancing function of mediation. The reasoning given by the CPWs was somewhat different. Without mediation, CPWs felt as though they were “quasi-mediators” between the family members and the lawyers. In this capacity, the CPWs felt that they had to appear powerful.

Whereas power was important when the parties were acting as adversaries, mediation involved them as collaborators. Accordingly, they no longer felt as if they had to appear powerful.

Workers who do not act as mediators per se can still use certain mediative skills to try to empower their clients. Some writers have suggested that there may not be sufficient political will or resources to provide CP mediators (Tjaden, 1994). Although there are significant differences between the mandate of a CPW and a mediator, CPWs could receive better training in mediative skills that they can use in the course of their ordinary practice.

This research raises at least as many questions as it answers. Although this research explored situations in which the parties may have been empowered, further research would be needed in order to measure empowerment in more quantitative terms (Regehr, 1994). The findings in this research do not indicate the long term impacts of the mediation process. For instance, do the empowering effects of mediation continue in future dealings between the parties, or is the presence of the mediator needed? Follow up is also needed to determine whether the outcomes of mediated cases are better for children. Without studying the impact of mediation on the children, one can only speculate upon the

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indirect impacts of family empowerment. Finally, ethical implications of empowerment in CP mediation require further study. Consider, for example, the ethical dilemma for a mediator in a situation where the parents believe that incest with a child is appropriate. Certainly, there must be limits on the extent to which mediators should facilitate self-determination in such a context (Fox, 1984; Page, 1992).

Proponents for the use of mediation in child protection cases lay strong claims about its desirability in terms of a broad range of outcomes: empowerment, timely settlement, individualized and durable solutions, and high levels of participant satisfaction. Critics question whether CP mediation puts children at greater risk of maltreatment, imposes social control in an insidious manner, or duplicates the role of a child protection worker. Resolution of such questions depend significantly upon how the process of CP mediation is defined and implemented. The present research, however, indicates that mediation can be implemented in a way that instrumentalizes some of the key principles of empowerment.

Note 1, In this article, the term case conferencing refers to sessions in which the child protection worker and family members meet together, without the use of a third-party facilitator. Plan of care meetings are sessions in which various agency workers and the family meet together. These meetings are differentiated from branch review meetings, where the CPW, supervisor, agency lawyer, and other workers meet together in the absence of the client to discuss how to proceed in a particular case. The terminology can be confusing, since some authors use the term case conferencing to refer to what is defined here as a branch review meeting (Dingwall, Eekelaar, and Murray, 1995).

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Allan E. Barsky is assistant professor of social work at the University of Calgary, Alberta, Canada, and director of Network: Interaction for Conflict Resolution. He has a background in family and child protection mediation, social work, and law.