A New Series on the Negotiation of Adoption Assistance in Ohio, Part 7
Mediation
Mediation
Note: Once again, I want to remind readers that my suggestions are essentially “best guesses,” based on my experience in working with adoptive families over the years. Collectively, they are strategies and tactics for engaging county agencies in a negotiation process that is consistent with federal and state policy. I wish I could say they are fool proof formulas for success.
It is probably a good idea to keep assuring the agency that you want reach an agreement without going to mediation as long as progress seems possible. You can continue to point out the primary reasons you are seeking a certain amount of monthly assistance. At some point, however, the negotiations may become deadlocked and mediation becomes the next step in the negotiation process.
Is mediation preferable to a state administrative hearing when the amount of adoption assistance is involved?
When the negotiations deadlock, adoptive parents have the option of requesting a state administrative hearing or mediation. Mediation is a preferable first step as opposed to going straight to a hearing. Since Ohio has no statewide adoption assistance payment rate schedules, hearing officers do not decide how much adoption assistance should be awarded in any individual case. Instead, the hearing officer determines if additional negotiation is warranted. When an adoptive parent’s appeal is “sustained” in a hearing, the hearing officer orders the county agency to resume negotiations with the parents. She may cite issues that must be considered, but the matter remains unresolved.
Mediation, on the other hand, involves a third party who picks up the negotiation where it deadlocked in hopes of fostering an agreement. When a parents requests mediation, a hearing is also scheduled as next step if the mediation fails. If the mediation produces an agreement, the hearing is cancelled.
Please explain the mediation process
Mediation is conducted by staff in the Ohio Department of Job and Family Services’ (ODJFS) Office of Legal Services. Parents most often request mediation, but agencies may also submit a request.
The first step is to complete a JFS 1470 Mediation Request Form. In the space for “reasons,” you can be relatively brief. Reasons might include “failure to negotiate,” “failure to consider our family circumstances,” “refusal to consider the need for child care,” “refusal to consider our child’s anticipated needs,” or some other action or omission that is out of compliance with federal or state policy.
I suggest that you send more detailed statements and documents that support your position along with your request for mediation, or afterward as a follow-up. This will give the mediator the opportunity to familiarize herself with the issues at hand. Try to show how the agency’s actions or inaction affect your capacity to incorporate your child into a healthy, permanent family.
Send all emails and documents to Elizabeth Foster at elizabeth.foster@jfs.ohio.gov or the ODJFS Bureau of State Hearings at BSH@jfs.ohio.gov.
The mediator will contact you for a preliminary discussion. You can ask questions and present major concerns.
The mediation will begin with both parties participating in an online conference. (Microsoft TEAMS).
The mediator will then meet separately with each party and convey proposals and counter proposals until, hopefully, an agreement is reached. The mediator essentially walks the parties through a negotiation process.
The mediator encourages discussion of the child’s most important needs and family circumstances.
Although mediation does not impose a settlement, there is some pressure on the parties to reach an agreement.
Practical Suggestions
An Informal Monthly Budget
Sometimes, it is helpful to draft an informal monthly budget, if you think it will support your proposal for adoption assistance. The purpose is to place adoption assistance within a larger family context during mediation. Ask yourself, how can I clearly illustrate our need for monthly adoption assistance? The budget might include the following categories.
General family expenses (food, shelter, utilities, mortgage, car payments, child care, etc.) for all family members.
Expenses related to the adoptive child’s special needs (therapies, programs, treatment, travel expenses, etc.)
Income from employment outside the home.
Foster care payments that will end with adoption.
Lost income from leaving a job to care for the adoptive child.
Add a brief narrative to answer such questions as:
What impact does one parent leaving a job have on the need for adoption assistance?
What impact will the end of foster care payments have on adoption assistance?
How do the child’s more extensive care needs affect the need for adoption assistance?
You can send the “budget” to the mediator prior to the mediation. Since you are sending it as an illustration of your monthly situation for purposes of discussion, it is not necessary to document each expense. You can offer to document the expenses and resources, in the future if necessary.
Humanize the Mediation
Don’t hesitate to “humanize” the mediation by reminding the parties that the negotiation is not an abstract debate, but involves the future of a real child. Don’t be shy about how you want to use the adoption assistance to foster the growth and development of this particular child. In the back and forth about payment amounts, the welfare of the child and family sometimes gets lost.
Have a suitable payment amount in mind
Go into the mediation with a payment amount or range of adoption assistance payments in mind that you believe would be sufficient for the successful incorporation of your child into your family. You can keep this amount to yourself.
At the outset of the mediation, propose an amount of adoption assistance that is significantly higher than the amount you are ultimately willing to settle for.
This may seem tacky, but a fundamental lack of trust between adoptive parents and agencies has made it a common for agencies to come in with a lower amount than they will ultimately settle for. Since the mediator cannot impose an amount, the natural momentum of the mediation process pushes the parties toward an amount somewhere between the adoption assistance payment proposed by the agency and that proposed by the adoptive parents.