Policy directive: CW 005-06 – Alternative dispute resolution

This policy directive requires societies when using Alternative Dispute Resolution to:

1. use one of the three types of Alternative Dispute Resolution, as described in this directive, as prescribed methods under the Child and Family Services Act (CFSA), or a fourth option where it meets the criteria outlined in this directive and is approved by the Executive Director of the children’s aid society
2. use Alternative Dispute Resolution facilitators who have the specific qualifications and experience described in this directive
3. apply specific criteria in determining if facilitators are impartial
4. use a written agreement, where possible, which is signed by all participants and contains the confidentiality provisions as set out in regulation
5. provide notice to the Office of the Children’s Lawyer, where Alternative Dispute Resolution is proposed

Effective date

This policy directive will become effective on November 30, 2006.

Introduction

Alternative Dispute Resolution (ADR) is a strategy to streamline court processes and encourage alternatives to court. It focuses on a more strengths-based, inclusive and collaborative approach to resolving child protection disputes, and encourages the involvement and support of the family, extended family, and the community, in planning and decision-making for children.

The Child and Family Services Act (CFSA), as amended by Bill 210, identifies the following occasions where a prescribed method of ADR must be considered and/or may be used pursuant to the following provisions of the CFSA:

• if a child is or may be in need of protection, a children’s aid society must consider whether a prescribed method of ADR could assist in resolving any issue related to the child or a plan for the child’s care (section 20.2(1))
• the court, at any time during a proceeding, and with the consent of the parties, may adjourn the proceeding to permit the parties to utilize a prescribed method of ADR to attempt to resolve the issues in dispute (section 51.1)
• on applications to vary or terminate an openness order before or after an adoption, the court may, with the consent of the parties, adjourn the proceeding to permit the parties to utilize a prescribed method of ADR to attempt to resolve any disputes related to the proceeding (sections 145.2(7) and 153.1(10))

1)  Prescribed methods of Alternative Dispute Resolution

This policy directive further defines a limited number of prescribed methods which may be used by children’s aid societies in view of the fact that the use of ADR in child protection matters is a relatively new practice, and is a new policy direction for Ontario. Therefore, preference is given to methods that are well established and that have been evaluated, in order to protect the best interests of children.

Requirements

Children’s aid societies are required to use one of the following methods as prescribed methods of ADR:

1. Child protection mediation
   A process where child protection workers and the family (including the child where appropriate) and any other person putting forward or proposing to participate in a plan for the child, work together with the aid of a trained and impartial child protection mediator who has no decision making power. The mediator assists the participants in reaching an agreement on the issues in dispute, in generating options for resolving their dispute and in developing a mutually acceptable plan that addresses the protection concerns identified.
2. Family group conferencing
   A process that brings together the family (including the child where appropriate), the child’s extended family and community, child protection workers, and service providers to develop a plan that addresses the protection concerns identified. A trained and impartial coordinator, with no decision making power, assists the participants throughout the process. An integral component of family group conferencing is providing the extended family group with an opportunity to meet privately, independently of professionals, to develop this plan.
3. Aboriginal approaches
   Traditional methods of dispute resolution, including circle processes, which have been established by First Nations communities or Aboriginal organizations. Impartial facilitators who have no decision-making power and who are skilled in First Nation traditional methods, assist the participants in developing a plan that is supported by the participants and/or the First Nation community and addresses the protection concerns identified.
   OR
4. Where the above methods are not available or where another method is deemed more suitable, a children’s aid society may wish to use another method of ADR. A Society may use another method of ADR, but that method of ADR must:
   1. be described in a detailed written proposal
   2. satisfy the criteria of a prescribed method of ADR, as outlined in the regulation
   3. be facilitated by person who meets the criteria outlined in the qualifications and experience section of this directive
   4. be assessed and approved by the Executive Director of the children’s aid society involved

Reporting requirements

Children’s aid societies must record in the appropriate file (i.e., child’s file, child protection file, adoptive family file) that ADR was considered, what decision was reached and the supporting reasons. Where an ADR takes place the outcome of the process must also be recorded in the appropriate file.

Children’s aid societies are required to track the use of the prescribed methods and key outcomes on a quarterly basis through the MYRBP reporting mechanism.

2)  Qualifications and experience of persons facilitating Alternative Dispute Resolution

It is widely recognized that child protection disputes are complex and difficult to resolve due to the high level of conflict and significant power imbalances that may exist among the participants. Therefore, persons facilitating a prescribed method of ADR must possess a high level of competency as well as a specific skill set.

Requirements

Children’s aid societies, when engaging in one of the prescribed methods of ADR, are required to use facilitators who:

• comply with the provision in the regulation dealing with confidentiality of and access to records and information
• provide the results of criminal record checks, completed within the last three years prior to facilitating a prescribed method of ADR
• have the following specific qualifications and experience:

  Children’s aid societies are not required to verify these qualifications or requirements.

  The majority of family group conferencing coordinators are employees of a community agency (children’s mental health centre, children’s aid society, or other). Therefore, the expectation is that the employing agency is responsible for liability insurance, checking the coordinators professional references, and for ensuring a criminal record check is completed every three years.

  Where a family group conferencing coordinator is not an employee of a community agency which is responsible for liability insurance and has completed reference and criminal record checks, the George Hull Centre for Children and Families will be responsible for providing liability insurance, checking the coordinator’s professional references and for ensuring a criminal record check is completed before placing them on the roster, and every three years thereafter.

  1. Child protection mediation
     • children’s aid societies are required to use child protection mediators who are on the provincial roster managed by the Ontario Association for Family Mediation.
     • child protection mediator on the provincial roster has satisfactorily completed the Child Protection Mediation Training and has the following prerequisites:
       • a professional degree or diploma in the social services or children’s services
       • at least 60 hours of training in family mediation, both basic and advanced, to include a minimum of 20 hours of skill training
       • at least 10 family law cases mediated to the point of agreement
         OR
       • Accreditation by the Ontario Association for Family Mediation (OAFM) or Certification by Family Mediation Canada
     • A child protection mediator on the provincial roster, has the following:
       • professional liability insurance
       • a satisfactory criminal record check completed within the last three years
       • three satisfactory professional references
  2. Family group conferencing
     • Children’s aid societies are required to use family group conferencing coordinators who are on the provincial roster managed by the George Hull Centre for Children and Families.
     • A family group conferencing coordinator on the provincial roster has the following:
       • a post-secondary degree or diploma in the social services or children’s services, or equivalent
       • experience in the social services or children’s services
         AND
       • training, both basic and advanced, and mentorship in the principles and practices of family group conferencing provided by the George Hull Centre for Children and Families as the provincial training resource
  3. Aboriginal approaches
     • children’s aid societies are required to use facilitators who have the following:
       • recognition by the First Nations community with whom the child is affiliated or by an Aboriginal organization, as qualified to engage in Aboriginal approaches to Alternative Dispute Resolution
       • knowledge of the Child and Family Services Act
       • a satisfactory criminal record check completed within the last three years
  
  
  4. Other methods
     • Executive Directors may only approve other methods of ADR, where the facilitators have the following:
       • a post-secondary degree or diploma in the social services or children’s services or equivalent
       • experience in the social services or children’s services
       • knowledge of the Child and Family Services Act
       • a satisfactory criminal record check completed within the last three years
       • three satisfactory professional references

3)  Facilitator impartiality

The ADR regulation requires that ADR be conducted by an impartial facilitator who has no decision-making power. This policy directive defines the term impartial.

Requirements

Where possible, ADR resources must be sponsored by and located within an organization other than a children’s aid society.

Where the ADR facilitator is located within or sponsored by a children’s aid society:

• the ADR facilitator must have a dedicated and distinct role, separate from the child protection role and the child welfare team
• the ADR facilitator must not have access to client files or the society information database
• the ADR facilitator must not have access to case recordings or court reports
• the ADR facilitator must not report to a child protection supervisor, and must report to senior management, in order to avoid any perceived or real conflict related to specific child protection cases
• the ADR facilitator should maintain an office, where applicable, and conduct ADR outside the children’s aid society office

4)  The use of privacy/confidentiality agreements

All participants to a prescribed method of ADR are bound by the precise confidentiality provisions contained in the regulation. It is important that these provisions are clearly explained to all participants by the ADR facilitator prior to entering into a prescribed ADR process so the participants can make an informed decision about their participation. This portion of the regulation provides as follows:

Requirements

Children’s aid societies are required, where possible, to enter into prescribed methods of ADR where the provisions of the regulation respecting confidentiality are contained within an agreement that is signed by the participants prior to the commencement of ADR.

There may be some cases where the use of a written confidentiality agreement could act as a disincentive to certain persons to engaging in a prescribed method of ADR. In these cases, the minimum expectation is that children’s aid societies only engage in a prescribed method of ADR where the elements of the confidentiality regulation are clearly communicated to participants by the ADR facilitator at the outset of the process.

Reporting Requirements

Where a written agreement is not signed by the participants prior to the commencement of ADR, the children’s aid society must document the supporting reasons in the appropriate file.

5)  Notification of the Office of the Children’s Lawyer where ADR is proposed

The Child 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.

Requirements

Children’s aid societies must notify the Office of the Children’s Lawyer (OCL), as follows:

Children’s aid societies must provide notice to the OCL using the form appended to this directive.

Following notice to the OCL, the following will occur:

1. the OCL will review the notice information
2. the OCL agent lawyer may contact the identified representative at the children’s aid society for an interview (either in person or by telephone)
3. the OCL agent lawyer may request a file review from the children’s aid society

At any of the three stages outlined above, the OCL may make the determination as to whether or not they will be providing legal representation to the child, and they will advise the children’s aid society of that decision.

Reporting requirements

Children’s aid societies will report notice to the OCL through the MYRBP reporting mechanism.