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Mediation or Litigation with Abusing or Neglectful Families: Emerging Roles for Mental Health Counselors.

Differing approaches to adjudicating abusive or neglectful parents have resulted in an expansion of practice opportunities for mental health counselors. In this article we describe the two most prevalent approaches practiced by court systems: (a) the traditional dependency litigation process, and (b) the newly emerging dependency mediation process now being implemented by many court systems. In addition, the potential roles for the mental health counselor participating in these different forms of dependency adjudication process are highlighted.

Child abuse and neglect are some of the most vexing social problems in the United States. In an effort to change the behavior of abusive and neglectful parents, courts now bring legal action against parents accused of endangering their children. This has resulted in a large volume of dependency cases being dealt with through litigation in state court systems. In Florida, for example, 8,900 child dependency petitions were filed in 1997 alone as a result of child abuse investigations, with approximately 1,740 of those cases resulting in termination of parental rights (Davis, 1998). However, this litigational approach to protecting the welfare of children is not without its flaws. Many professionals working in the courts and in social service systems report that the adversarial nature of this process results in many abused children and their families losing faith in the legal system, experiencing a loss of control, and becoming oppositional or openly defiant in following court mandates or protective service directives (Libow, 1993; Saunders, Baker-Jackson, Flicker, & McIsaac, 1991; Shear, 1996). Consequently, a search has begun for less adversarial approaches to helping families improve their capacity to care for their children.

One alternative now gaining popularity in many judicial and social service systems is that of dependency mediation. Because this approach to dependency adjudication creates a structure for negotiation between the parents and the legal and social service systems, it affords a new opportunity for mental health counselors, who judge the traditional adjudication process to be of questionable value in working with these families. In this article we describe these differing approaches to working with abusive or neglectful parents and the expanded practice opportunities emerging from them for mental health counselors. First, the traditional dependency litigation process and its concomitant effects on families and mental health professionals is described. Second, the newly emerging dependency mediation process now being implemented by many court systems is described. Finally, the potential roles for the mental health counselor participating in dependency mediation is highlighted.


The dependency adjudication process typically begins when the investigation into a child abuse or neglect report reveals that the child's living environment presents a substantial and immediate danger to the child. Although there is no nationally agreed-upon process of dependency adjudication, most states have enacted statutes that outline similar legal procedures. These procedures depict three distinctive stages of legal decision-making: (1) an exigency stage during which the court provides a shelter hearing to determine if the child is in likely need of immediate state intervention; (2) an investigative stage during which the courts provide an adjudication hearing; and (3) a conclusive stage when the court provides a disposition hearing and treatment plan objectives for the family are solidified. While efforts are being made to accelerate the process (G. Firestone, personal communication, February 9, 2000), on average, the dependency court adjudication transpires over a course of 18 to 24 months and typically results in the family's reunification.

Exigency Stage

When a child is removed from her or his home because of a report of abuse or neglect, a dependency petition is filed by the local child protective services agency within 24 hours. The petition asks the court to intercede and place the child's welfare under state scrutiny. These initial court proceedings during the exigency stage are referred to as shelter hearings. During the shelter hearing, the judge reviews existing evidence to determine whether there is probable cause to believe the child is in need of state intercession and whether the child's removal from the home meets criteria required by law. Because the evidence in a shelter hearing need only meet the standard of showing probable cause to support the abuse allegations, the court can base its determination on very limited information such as sworn complaints and oral reports. Although the parents may participate in the shelter hearing, these hearings are conducted in a nonadversarial manner with the limited goal of addressing the more immediate needs of the child. Such immediate needs can include: (a) determining where the child will be temporarily sheltered; (b) assessing whether there are any special medical or educational needs that must be addressed; (c) deciding whether to appoint a guardian, (d) determining who may be allowed to interact with the child, and (e) determining whether a public defender should be appointed to defend the parents. At the shelter hearing, a date is set for an adjudication hearing by the judge.

Investigative Stage

The purpose of the investigative stage is to fully investigate the nature of the abuse or neglect and to establish whether the parent is, in fact, guilty of abuse or neglect. Between the time the shelter hearing is concluded and an adjudication hearing occurs, the child's protective service worker, court appointed guardian, and state attorney devote time to developing and completing a thorough investigation of the case circumstances. Concurrently, the parents and their attorney spend this time developing their defense. This evidence is then presented to the judge conducting the adjudication hearing to determine further action by the court or state. Subsequently, the judge (a) may find the parents not guilty and dismiss the case; (b) charge the parents with abuse or neglect; and (c) rule that the child is still dependent on the state and set a date for a disposition hearing.

The adjudication hearing is adversarial in nature. Because the standard of evidence required to sustain the allegation of abuse must be raised from the level of a probable cause used at the shelter hearing to the level of a preponderance of evidence, the contesting parties are given an opportunity to present information in great detail. Attorneys for the state and for the parents examine and cross-examine witnesses, and introduce testimony and reports from experts and eye-witnesses. During this phase, a mental health counselor, who may have previously worked with a family, may be required to testify as to their observations, the disclosures from their clients, and their professional opinions as expert witnesses.

Mental health counselors employed by community-supported agencies or mental health centers may be expected to work with parents mandated to seek counseling or psychotherapy as a part of a court-mandated treatment plan. Consequently, mental health counselors are often expected to support the court system either in investigating the parent's capacity to rear their children or in implementing the decisions of the court for parents to receive treatment.

Conclusive Stage

During this stage of the process, the judge conducts a disposition hearing in which she or he again hears testimony, examines reports from the attending professionals and parents, and then rules on the placement of the child and the elements of a treatment plan. During this disposition hearing, the judge may also set in motion a separate process to seek the termination of parental rights. Such action by the court occurs when the judge determines that family reunification is impossible. If there is no intention of terminating the parents' parental rights, the objective of the treatment plan is to reunify the family and attempt to mend the abuse and neglect suffered within the family unit.

Typical elements of a treatment plan include the following:

* The period of time that it is in effect

* The persons and agencies responsible for monitoring the plan

* The special conditions of placement and visitation

* The specific counseling activities required of the parents such as participation in parenting classes or substance abuse support groups.

If the child is not placed back in the home during the disposition hearing, but instead is given a temporary placement with a relative or foster parent, the parents may later file a motion petitioning the court for a modification in the child's placement. In future post-deposition hearings, the parents may also petition the court to modify elements of the treatment plan. In turn, the child protective services agency may petition the court to change the placement, enforce elements of the treatment plan not being adhered to by the parties, and/or request modifications to the treatment plan.

In addition to these shelter, adjudication, and disposition hearings, it is common practice for the courts to schedule periodic judicial case reviews, pre-hearing conferences, pre- and postadjudication hearings, and postdisposition hearings. On those occasions when two or more children are adjudicated dependent or alleged to be dependent, the courts may hold a separate set of hearings for each child. Such conferences and hearings are expected to be attended by the parents and their legal counsel. Participants in this process can also expect to experience hearing dates moved and postponed for a variety of reasons. They can equally expect delays due to crowded court dockets both on the day of their hearing and when making efforts to schedule future court proceedings (Davis, 1998).

Impact of Litigation on the Family

There are a number of consequences for a family participating in a dependency adjudication process. Often this multistage, adversarial process results in treatment plans being orchestrated by professionals who serve more as adjudicators than case managers (Benjamin, 1991) and in the unnecessary delay in the implementation of treatment plans (Shear, 1996). Consequently, despite the court's objectives of enhancing the welfare of the child and the reunification of the family, family members (including the child) frequently exhibit: (a) increased levels of anxiety with each approaching hearing date; (b) frustration when they see the family's resources expended without a timely final resolution; and (c) tendencies to question or lose faith in the system. Ultimately, family members may experience a loss of control and become oppositional or openly defiant (Libow, 1993; Saunders et al., 1991).

Observing these negative consequences, many practitioners such as Benjamin (1991) have suggested that the traditional litigation process characterizing most state dependency adjudication causes more harm than benefit to the families and children under their charge. One cause of harm concerns our society's tendency to conceptualize complex problems such as child abuse and neglect as linear, manageable pieces modeled after antiquated social constructs (Benjamin, 1991). Another cause of harm is society's investment in the "myth of justice" whereby the general public believes that a simple, concrete remedy can be found for every social problem (Benjamin, 1991). In practice, particularly when the goal is family reunification, this societal philosophy pits the parents and their children against one another and the family unit is weakened as a consequence. With respect to the "myth of justice," Thoennes (1991) observes that, ironically, dependency cases are more likely to be settled in negotiations between attorneys in hallways rather than in the courtroom deliberations appropriately influenced by mental health professionals' input. When cases do end up in the courtroom, compromises made by the judge to suit both parties often end up with arrangements that are less satisfactory for either party (Barsky, 1997). Several courts have sought to address these problems through the use of dependency mediation.


In the 1970s, the nation's court systems began to implement mediation procedures to resolve divorce disputes and to minimize the negative effects associated with both the adversarial nature of litigation and the increasing caseload of state courts (Ferstenberg, 1992; Thomson, 2000). Not only did mediation procedures prove to be less costly than litigation, they effectively addressed a broader range of issues and increased the likelihood of party compliance to the terms of the settlement (Kelly, 1996; Kressel & Pruitt, 1989). The courts also began to utilize mediation procedures in dealing with victim-offender issues and found them to be superior to litigation as methods for redressing the needs of victims of crimes and reducing recidivism among offenders (Umbreit & Greenwood, 1999).


As a result of the successful application of mediation in divorce and victim-offender cases, mediation began to be used by courts in the early 1980s to resolve issues of child dependency and termination of parental rights. In 1983, a pilot project was conducted by the Los Angeles Juvenile Court in which mediation was used to resolve unsuccessful child protection and placement disputes. The Connecticut Superior Court Family Division followed in 1984, applying mediation in the negotiation of pretrial settlement conferences in child protection cases (Shaw & Phear, 1991). In 1987, Orange County, CA, implemented a dependency mediation program to address the problem of increased court filings (Thoennes, 1997a). So successful were their outcomes that the practice of dependency mediation was expanded to other counties throughout California. Since 1987, dependency mediation has begun to be utilized in a variety of county and circuit court systems throughout Canada and the United States (Shaw & Thoennes, 1999). Today, state court systems in all 50 states have developed dependency mediation programs (G. Firestone, personal communication, February 9, 2000).

Overview of the Mediation Process

Dependency mediation is a structured process whereby a neutral third party acts to encourage and facilitate the resolution of a dispute between the state's child protection service,; and the parents or guardians of a child. Unlike the representatives of the dependency court, the mediator has no authoritative decision-making power over parents, and participation in mediation is voluntary (Giovannucci, 1997). Although the typical objective of mediation is to develop a case management plan that leads toward family reunification, mediation is also used in negotiating issues regarding the termination of parental rights.

Mediations may transpire from the time immediately after the child protection agency first becomes involved with a family, through the adjudicatory proceedings, and into the postdispositional proceedings. There is no standard point of transition from the jurisdiction of the dependency court to the referral to a dependency mediator (Libow, 1993). Instead mediation can transpire at any time during the dependency adjudication process with beneficial results (Libow, 1993; Giovannucci, 1997).

In addition to the mediator, the typical participants in a dependency mediation include: (a) the parents; (b) the parents' attorney; (c) the parents' mental health counselor; (d) the child(ren)'s court-appointed guardian; (e) the child(ren)'s attorney; (f) the child(ren)'s mental health counselor; (g) the child protection service worker(s); (h) the child protection services attorney; (i) other members of the family or foster family; and (j) selected professionals from the community (e.g., from law enforcement or the school system). In contrast to the traditional litigation process, in which interaction only occurs between the participants and the presiding judge, in mediation the participants interact with each other. Consequently, it is possible to give an appropriate degree of attention to the perspectives of the parents of the child and the participating professionals in planning how best to address the needs of the children and the family (Benjamin, 1991; Thoennes, 1991).

A significant benefit derived from using mediation in case management planning is that in most jurisdictions dependency mediation is a confidential process and treated as a civil matter. Criminal charges are not necessarily filed. Hence, in those cases in which parents are the subject of a criminal prosecution, they can feel safe in discussing issues related to abuse and neglect without fear that such information will be used against them in court (Baron, 1997). There is one exception to this confidential process. Mandated reporters (e.g., attorneys, mental health professionals, educators, and the mediator) still hold the duty to report new allegations of child abuse or neglect; threats to self; and threats to others (Shear, 1996).

Significant Research

Although there are a number of dependency mediation programs now in existence, few have been systematically evaluated. Preliminary research evidence strongly suggests that dependency mediation can be a preferred method for resolving disputes between the state's child protection services and the parents or guardians of a child. Thoennes (1991, 1997b) conducted a qualitative study of eight dependency mediation programs and concluded that the dependency mediation process was both empowering for the parents and unaffected by the need to protect the child. However, dependency mediation was less effective in facilitating the case planning process when: (a) criminal charges were also being filed; (b) parents denied the abuse or neglect charges; or (c) when the issue involved termination of parental rights. Finally, Thoennes (1997a) confirmed that when dependency mediation was not offered, the alternative was not traditional litigation in court but rapidly negotiated settlements often in court hallways.

In 1997, Thoennes (1997b) conducted a follow-up survey of 499 individual parents who participated in child protection mediation cases and reported that 90% of the respondents felt they were heard in the mediation process and had a chance to speak; that the case management plans were more detailed, often more generous, and that the case plans formulated in the mediation were easier for the parent to comply with. When compared to a control group, participants of the mediated case management planning process reported their plans were more finely tuned to specific problems like drugs and alcohol; better addressed communication issues; demonstrated a better compliance rate (42% versus 25%); were less expensive to administer; and had a lower contested (enforcement) review rate (53% versus 88%). However, Thoennes' (1997b) research had several limitations. The programs evaluated were evolving while the evaluation took place, the survey was a convenience sample and was possibly influenced by participants' concerns with confidentiality, the sites evaluated had varying program structures, and the control groups lacked sufficient conformity to those actually surveyed.

In 1997, the mediation dependency program conducted by the Eighth Judicial Circuit of Florida was internally evaluated (Davis, 1998). The cost-benefit analysis clearly demonstrated a substantial savings to the court. Cases referred to mediation prior to the shelter hearing with a successfully mediated agreement saved the court $2,200 per case. Cases referred to mediation immediately prior to a Termination of Parental Rights trial saved the court $6,700 per case.


In the past, when all dependency matters were litigated, the only role open to mental health counselor in the dependency adjudication process itself was that of family assessor and expert witness. With the development of dependency mediation as an approach to resolving dependency issues, new opportunities have emerged. In this section we describe these various role options.

Role as Mediator

The role of mediator can be held by an attorney or a mental health professional who holds an advanced degree in one of the social/behavioral sciences and has completed training in mediation. However, there is significant variability across states in terms of required credentials. The state of Connecticut, for example, requires mediators to be professionals with 5 years of experience in social work or human services directly related to dealing with child protection issues, law, and judicial procedures (Shaw & Phear, 1991). Dependency mediators in the state of Florida, in addition to holding advanced degrees, must be certified by an agency of the Florida Supreme Court (Kosch, 1999). In contrast, persons who serve as dependency mediators in the San Francisco court system are often specially trained parents who have successfully completed the dependency adjudication process themselves as defendants.

The mediator begins the mediation by ensuring that all those necessary to the mediation are present, agree to participate, and are prepared. The mediator takes on the role of educating the various parties about the mediation process and the limitations of that process with regard to court proceedings, issues of confidentiality, discovery, and time constraints. The mediator is expected to decide which issues are to be focused on in the mediation and which are to be excluded as a result of being outside the scope of the dispute or beyond the authority of the courts. Finally, the mediator is responsible for ensuring that there is a sense of inclusion, participation, and validation among all the participating parties (Giovannucci, 1997; Shear, 1996).

Mediators must ensure that the process neither adds to the trauma of the child and family nor jeopardizes the safety of the child (Giovannucci, 1997). Toward that end, mediators can find themselves addressing a power imbalance whereby one individual in the mediation has, or appears to have, too much control over the negotiation's outcome. Power imbalances frequently develop between parents and child protection workers when the state has removed a child from home or when attorneys for the parents or child protection systems become overly zealous and overshadow the perspectives of other participants (Carruthers, 1997). To minimize inequities in power, the mediator routinely relies on sharing information, re-framing issues, clarifying interests, acknowledging emotional elements, and using individual caucuses to refocus and redirect the mediation (Giovannucci, 1997).

Role as the Parents' or Family's Counselor

Mental health counselors who agree to work with parents going through the dependency adjudication process often participate in the mediation process itself and perform several important functions. First, because of the stigma associated with a substantiated child maltreatment report and the discrepancies in communication skills and procedural knowledge between parents and professionals, the counselor must be cognizant of the emotions elicited in the parent accused of child abuse or neglect and help facilitate the parents' communication. Second, the counselor serving in the role of parent/family's counselor can assist the parents in understanding the mediation process and participating actively in it. Because attorneys and mediators may not spend a significant amount of time educating parents and their children about the process (Thoennes, 1991), the mental health professional serving as their counselor must often make sure that parents understand what is occurring. Third, mental health counselors can often assist the other professionals and the family in developing a treatment plan that can be realistically met by the parents (Baron, 1997).

The payoff for parents' active participation in treatment planning is significant. Research suggests that (particularly in dependency cases with the goal of family reunification) keeping parents involved and allowing for their active participation is in the best long-term interest of the child (Thoennes, 1997a). Parents who feel excluded from the child's therapy or who do not have information about goals, expectations, and progress are unlikely to continue to bring a child to therapy or to pick up the expense unless required by the court to do so (Shear, 1996).

Benjamin (1991) makes a number of suggestions to the mental health professional serving in this role in the dependency mediation process:

* Rather than use words that label, focus on appropriate or inappropriate behaviors

* Place an emphasis on the family system rather than an individual

* Pay attention to the balance of power

* Respect and include fellow professionals

* Distinguish parenting values from parenting styles

* Strive to normalize the situation

* Use the resistance of parties or professionals effectively and create dissonance in their thinking

Obviously, mental health counselors must not lose sight of the long-term welfare of the family when functioning in this counseling role. It is tempting to become entrenched in protecting the family's interests with other professionals involved in the mediation. For example, the mental health counselors may be tempted to disagree over the specifics of a treatment plan, including the length of time and extent of supervised visitation necessary to reintegrate the family (Benjamin, 199 l). Speaking to this issue Benjamin (1991) warns, "mental health and other professionals often become advocates, and sometimes adversaries for positions or clients to the same extent that lawyers are accused of doing" (p. 237). Shear (1996) also stressed the need for the mental health professional to avoid making specific recommendations regarding individuals within the family which are not in the best interests of the family as a singular unit or which place the counselor in the middle between the child and parent. Thus the mental health counselor functioning in this role should offer recommendations in the form of a range of possibilities dependent upon the cognitive, emotional, and developmental abilities of the family's members. The mental health counselor might do well to give the mediator a range or envelope within which family members are capable of responding effectively. This helps focus the attention of the other attending professionals and provides everyone the necessary room to negotiate an agreement. Shear (1996) suggests that mental health counselors should be keenly aware of the long-term goals of the family.

The Role of Expert Witness

If the dependency case is not referred to mediation or if efforts to mediate fail to resolve the dispute, the mental health counselor may be asked to provide expert testimony concerning the case. While the judge ultimately weighs the testimony of all experts, the mental health counselor serving in this role should remember that her or his actions should be tempered by caution. Vacc and Loesch (1994) warn that, "mental health counselors risk embarrassment and at worst legal repercussions" (p. 153) when they fail to take into consideration the intricacies and complexities of forensic mental health practice. If the mental health professional is subpoenaed to testify, a successful presentation will require a number of preparatory steps. According to Huber (1994), the mental health counselor should: (a) provide their professional qualifications and experiences to the requesting attorneys; (b) review the client's records and be aware of the frequency of contact with the client; (c) acquire an understanding of the legal issues associated with the case; (d) insist that the requesting attorney discuss the questions they intend to pose; and (e) anticipate the possible questions that may be posed by the judge or other attorneys during cross-examination. Finally, the mental health counselor might arrange to visit a court proceeding to become more acquainted with the nature of this process.


As society evolves so do our conflicts. This article suggests that a variety of potential new roles are available to the mental health professional when working to mend the emotional abuse and neglect imposed upon a child within a family. However, implementation of these roles demands that mental health professionals gain an understanding of the local legal environment surrounding the dependency process and the relevant legal and social service professionals responsible for creating effective family treatment plans. In turn, research indicates that the weakest components of the current programs often center on the attorney's lack of appropriate preparation of their clients for mediation or understanding of their clients' psychological needs. Consequently, a collaborative, consultative alliance should be developed between the attorney and mental health professional.

Court-ordered or mediated treatment plans are developed in professional environments notably different from those typically found in the mental health field and require knowledge of information not normally addressed during the mental health professional's formal academic training. However, we as a profession are obligated to understand these environments and should make efforts to ensure that the dependency process incorporates the expertise of the mental health professional during, rather than after, the development of a treatment plan. Preferably such treatment plans should be created through the collaborative, inclusive process of dependency mediation rather than as a by-product of an adversarial process.


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Stephen A. Giunta, LMHC, is a doctoral candidate and Ellen S. Amatea, Ph.D., is a professor. Both are with the Department of Counselor Education, University of Florida, Gainesville. Correspondence concerning this article should be addressed to Stephen A. Giunta, 4425 Northwest 41st Lane, Gainesville, FL 32606. Email:
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Author:Amatea, Ellen S.
Publication:Journal of Mental Health Counseling
Date:Jul 1, 2000
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