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Mashburn on Mediation in Open Adoption Cases


Probably like most faculty who read this blog, at my school, we are very proud of our students (or most of them, anyway).  We want to let people know of their good work, so we are highlighting some of their publications in our Journal of Dispute Resolution.

I am starting with an excellent comment by Sophie Mashburn (class of 2016), Mediating a Family: The Use of Mediation in the Formation and Enforcement of Post-Adoption Contacts Agreements, 2015 Journal of Dispute Resolution 383.  I hope that this post will pique your interest in this subject and encourage you to read her comment.

My Experience

Before I discuss her comment, I will describe some of my experiences that make it particularly resonate for me.  Prior to my appointment here at Missouri, I directed the child protection mediation clinic at the University of Arkansas – Little Rock.  (MFOI Kelly Olson succeeded me and joked that she was the “new John Lande.”  I am certain that she has performed much better than the old one – in addition to supervising all the clinics at the school.)

Although Ms. Mashburn’s comment isn’t specifically addressed to child protection cases (i.e., involving abuse or neglect), open adoption – or the lack thereof – was very relevant to the cases in our clinic.

Open adoption involves agreements between birth parents and adoptive parents setting the parameters of post-adoption contact between children and birth parents through such things as letters, emails, phone calls, and visits.

Under state and federal law, when children have been removed from a parent’s home due to abuse or neglect, there are strict time limits to try to “reunify” the family (i.e., return the child to the parent’s custody) – generally about a year or so.  If the court determines that it is not appropriate to reunify a family, it may terminate the parents’ parental rights (TPR) and put the children in line for adoption if an appropriate adoptive situation is available.

Unfortunately, Arkansas law doesn’t sanction open adoptions and this hindered our ability to help develop some agreements that would have been in everyone’s interests.

In our clinic, we weren’t allowed to mediate open adoption arrangements. In some cases, children are adopted by relatives and there are informal arrangements for ongoing contact with the birth parents if not prohibited by the court.  But we couldn’t help develop even informal agreements, let alone enforceable agreements, that might have provided for shared understandings and avoided possible confusion and conflict.

I remember one case that broke my heart in which I wish we could have arranged an open adoption.  A mother and her two young sons all had some cognitive limitations.  The boys also had significant behavior problems that the mother couldn’t manage very well.  In this case, the child protection professionals were very sympathetic to the mother and tried hard to help her retain custody of her boys.  Despite everyone’s best efforts, they all agreed – including the mother – that it would be best for the boys if her parental rights would be terminated.

In the mediation where we agreed to the TPR, we drafted extensive language stating that the mother agreed to it not because she didn’t love her sons but she let them go precisely because she loved them very much and she wanted the best for them.  She probably would never see them again and she wanted them to have this document to let them know her feelings when they grew up.

In that case, I don’t think that there was a potential adoptive family on the scene at that time.  But I think it would have been good for the boys and for their mother to be able to have some continuing contact.

Mashburn’s Comment

I learned a lot from Ms. Mashburn’s well-researched and well-written comment.  I didn’t know, for example, that 95 percent of infant adoptions in the US involve some level of openness between the birth family and adoptive family.

Her comment discusses “how and why adoption law has evolved into a preference for open adoption, provide[s] a brief history of post-adoption contact agreements, and discuss[es] the current and best practices for utilizing post-adoption contact agreements.  Finally, this comment … explore[s] the use of mediation in various states to assist adoptive parents and birth parents in forming and maintaining an agreement they both accept and that furthers the best interests of the children being adopted.”

Evolution of attitudes about adoption parallels other changes in attitudes about family relations. “In the 1940s, the policy of most, if not all, adoption agencies was to treat adoption as if it never occurred. … Prior to the 1980s, adoptions were generally closed and records were sealed. … Since Roe v. Wade, adoptions have decreased, and the ability to control the terms of an adoption, at least initially, has shifted from agencies and adoptive parents to the birthparents.”

Under the old regime where records were closed, adoptees could not learn about their birth parents or their genetic histories.  Even today, it can be hard for adoptees to get this information, which can lead to emotional and medical problems.

Mashburn cites research showing mixed effects of open adoptions, though adoptees and birth parents often experience benefits compared with closed adoptions.  She argues therefore that it is important that open adoptions should be arranged carefully.

Negotiation of open adoption arrangements can be tricky because they can help adoptees, birth parents, and adoptive parents – and also create problems for them.  Open adoption can help adoptees develop a secure identity – or undermine it.  The process can help birth parents grieve and remain connected with their biological children – or prolong the grief.  It can help adoptive parents manage the adoptees’ development – or undermine their authority.

Mashburn summarizes the history and status of open adoption laws in the US.  In 1993, Oregon became the first state to authorize enforceable open adoption contracts and today most states permit post-adoption agreements, though the structure and enforceability vary from state to state, as described in her comment.  New Mexico has adopted a best-practices guide for open adoption mediation, which the comment summarizes.

Nine states and the District of Columbia actually require mediation of an open adoption agreement as a condition of enforcement.  Of course, parties may use mediation to form an agreement even if not required – as well as to work out problems with performance of agreements.

Mashburn concludes by recommending that parties use mediation to help them develop suitable open adoption arrangements.  Using a neutral mediator can help everyone carefully consider their interests and find a solution that satisfies everyone’s key interests.  Mashburn advocates for more states to adopt statutes and rules authorizing mediation.

Mediation (like virtually every human process) always can be abused, in my view.  For example, one concern about mediating open adoption in child protection cases is that mediation may create excessive pressure on biological parents to surrender their parental rights.

For mediation to work properly, parties should have appropriate access to legal services and mediators who are sensitive to the special practical and ethical challenges in these cases.

I think that mediation in open adoption cases can be an extremely valuable process to help people work through important issues.  If you are interested in this area, Mashburn’s comment is a very good introduction.


John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >

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