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Dealing With Truant Youth: Is Mediation The Right Approach?

By Deborah K. Holmes

He is only 15 years old, but he hasn't been in school since 1980. He has been on the street since last spring, when he ran away from home so the truant officer couldn't find him. He sleeps in door ways, and since he tends to frequent a couple of neighborhoods, the residents all recognize him. Sometimes they call his mother, who has given out her phone number for just that reason. She finds him and brings him home again. He never gives her any trouble. But the situation in not improving, and sooner or later he is likely to end up in Juvenile Court.

He is typical of youngsters who are brought to court as Children in Need of Services (CHINS). CHINS petitions can be taken out by parents, schools or social services agencies--by anyone who believes that a child is out of control and requires legal restraint. Until 1973, such children were treated as juvenile delinquents and consequently came under the jurisdiction of the Department of Youth Services (DYS).

However the great volume of youth whose misbehavior warranted attention, but was not truly criminal prevented the department from attacking the problem of serious juvenile crime. In 1973-then legislation was drafted which shifted responsibility for so-called "status offenders" --truants, runaways, and "incorrigibles"--from DYS to the state social service agencies. It was hoped that decriminalization of minor offenses would create an atmosphere more conducive to helping children improve their behavior.

The current statue provides for status offenders in the following manner. The person or agency wishing to take out a CHINS petition meets with a probation officer, who decides if a petition is appropriate. If so, the County Bar Association appoints a lawyer for the child, and a preliminary hearing is held roughly two weeks after the petition is field. Often the judge decides to divert the case out of court into a social service agency. But status offenders have not been removed altogether from the Massachusetts court system.

Ten years after the enactment of CHINS legislation, conflict persists on the question of how to deal with status offenders. Now the issue is whether to decriminalize further--to take such children entirely out of court and to treat them exclusively through the social service agency network.

Advocates of complete decriminalization argue that the court system places an unfair portion of the blame for misbehavior on the child while simultaneously according him too little responsibility for amending his own faults. Seeking to improve on the current procedure, several programs have arisen which assign blame and input alike to the child and filer of the CHINS petition.

One such program is the Children's Hearing Project of the Mass Advocacy Center. Unlike other social services agencies, it operates directly out of the court system and deals only with CHINS cases. It is based on the principle that mediation techniques, commonly used in labor-business disputes and in divorce cases, are applicable to status offenders as well. Many experts in mediation disagree with this presumption, arguing that children are inappropriate for mediation. The notion of juvenile mediation is still an embattled concept and has only very recently gained professional legitimacy.

The Children's Hearings Project operates out of the Cambridge, Somerville, and Malden Juvenile Courts. It has been funded since its first cases in June 1981 by the Ford Foundation and other private grants Probation officers refer CHINS cases to Project case coordinators, who suggest to the parties involved the mediation alternative. Project director Sandra A. Wixted says that "very disorganized families, or families with severe mental problems, tend to screen themselves out": either they do not accept mediation or they fail to appear for scheduled mediation sessions.

Sixty-two percent of court-referred CHINS cases opt for mediation and thus are diverted into the Project, which also services a very small number of cases referred directly by schools, other social service agencies, and the Department of Social Services (DSS).

Typically, mediation involves a single session of two and a half to five hours in length. The child and the person or agency who filed the CHINS petition meet with two mediators, one of whom is young and hopefully likely to elicit the child's trust. Eighty-two percent of mediations result in a written agreement between the child and the filer of the petition. This agreement includes specific concessions by both parties--a parent might promise to let his child stay out until 11:00 every night and the child would in turn promise to wash the dishes after breakfast. Over a three-month period, 60 percent of these agreements hold. Contact with the court is maintained, and probation officers continue to check up on the case, but if an agreement holds the CHINS petition is automatically dismissed.

Mediators are not lawyers or even professional social workers. They come from a cross-section of the community and include secretaries, retired people, hairdressers, lawyers, and students. The only thing they have in common is the desire to do volunteer work and the experience of attending a 32-hour mediation training.

According to director Wixted, the Project is popular among officials in the three courts in which it operates. Probation officers and judges, she says, consider it a helpful, useful alternative to a system which is disappointingly ineffective in ameliorating the problem of status offenders.

Judge Francis Poitrast of the Boston Juvenile Court, a pioneer of the original movement for decriminalization and a co-author of the 1973 CHINS legislation, offers a cynical explanation for the enthusiasm of court officials. "Probation officers don't like their job because it forces them to perform. They have to deal with these people, with these families, and they would much rather be able to put the burden on some social service program."

Judge Poitrast suggests that the general problem with programs like the Children's Hearing Project is that their actual effectiveness is much more limited than their impressive goals and credentials would suggest. He points out that a large majority of CHINS cases have long histories of experience with social service agencies which "failed to do anything for them. The reason DSS is funding the project is that it [DSS] has failed in this area. It can't handle these kids either. The agencies just let them go. They don't come in for appointments, you have to keep after them all the time, and no service agency is going to go to someone's house at 7:00 in the morning and personally take a truant child to school.

Even worse, Judge Poitrast says social service agencies make no effort to locale troubled families in the areas they serve. The history of these children is that they will not be serviced except when they come through the courts. They won't come to anyone's attention. The history of the social services picking up these kids is nil."

In short, the courts are the sale means of making social service agencies do their jobs. "The court is the only one who can make a social agency serve these people. In the first place, these are not very nice people. They are argumentative and uncooperative, and ungrateful Social workers like to deal with people who are articulate and responsive. They don't want to deal with these people." Judge Portrast claims that the Children's Hearings Project's 60 percent success rate is simply insufficient. That's just not enough. The failure rate is just too high."

There is little evidence, however, to suggest that the court system is more effective in dealing with status offenders. Recently mediation has represented an increasingly popular alternative to in-court settlement of disputes in many areas. At the Harvard Law School, Professor Frank Sander offers a course which trains student in dispute resolution techniques and then placed them in actual mediation programs.

Several students enrolled in Professor Sander's course are doing their clinical internships with the Children's Hearings Project. One of them Lisa Gillespie, feels strongly that "status offenders should be taken out of court. Children don't like to adhere to agreements that are externally imposed on them, and they'll be a lot more compliant if they played a role in coming to an agreement."

On that premise, mediation programs designed to take CHINS cases out of Juvenile Court are springing up throughout the United States. Just as the decriminalization movement made sweeping gains during the early 1970's so the mediation alternative currently is causing a stir in legal and judicial circles.

But Children's Hearings Project director Wixted does not anticipate that juvenile mediation programs will become legislatively institutionalized in the foreseeable future. "The CHINS legislation won't be reformed because basically this country is very conservative. Remember that we are voting to reinstate the death penalty in Massachusetts."

In addition, Wixted says, the movement for legislative reform suffers from a lack of coherent national leadership. "Every mediation project in every state will be different because that's the way this country works, on the principle of diversity and individuality. Each locale has to develop its program according to its interests." Some programs, she points out, were not organized with the intention of reforming the Juvenile Court system. "In a lot of places they [social service programs] just want to help the families who are having problems."

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