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The Cop The President The Professor And Civil Harassment Mediation

by Victoria Pynchon
July 2009

From Settle It Now Negotiation Blog

Victoria Pynchon

It's merely coincidental that I volunteered to mediate civil harassment petitions for the first time during the same week as Gatesgate. (for the legal eagles, here's the law on disorderly conduct in one's own home vs. on one's own porch form today's L.A. Times). Much ink will be spilled on Gatesgate, most of it unproductive posturing by people with an interest in having their version of "the truth" declared "right." For anyone other than President Obama who is making the effort to turn high dudgeon into a "teaching moment" of accountability, understanding, amends, forgiveness and reconciliation, I provide my own story of relationships gone awry, the mediation of a dispute arising from a breakdown in civility, and the way in which we teach Middle and High Schoolers to resolve problems that we adults still can't seem to get right.

When I was a young lawyer in the '80s, I helped people obtain civil harassment restraining orders for the Los Angeles County Bar Association Barristers who ran a pro bono project in the downtown courthouse.  More recently, I've role played the mediator of civil harassment petitions in USC Adjunct Professor Lisa Klerman's popular Mediation Clinic.  But last week - the week in which otherwise responsible people were behaving badly on a front porch in Boston and on the national stage -- /* I mediated civil harassment petitions for the first time.

In both cases, the parties told me that the other side was -- essentially -- the spawn of Satan or, more charitably, simply insane, certainly irrational, maybe delusional, and definitely hateful  It was kind of me to volunteer my services, they told me, but there was no chance the "other side" would respond truthfully or rationally.  There was, they said, "no hope."  I, of course, am in the hope business.  It says it right there on pamphlet provided to Middle School Peer Mediators

Step One:  create an atmosphere of hope and safety. /**

I acknowledged the parties' understandable feelings of hopelessness but reassured them that they didn't need to believe in the process for it to work.  I held enough hope to get the thing going and would make sure -- to the best of my ability -- that no one was unsafe.  If they ever felt unsafe in the mediation room, they could just raise their hand or say "I need a break" and I'd immediately get up and take them out of the room.

The first case (names changed and story altered in inessential details to protect confidentiality) is not strictly a "family" court matter.  But it was a family matter nonetheless.  A typical Los Angeles family - multi-cultural, multi-racial and unsolemnized.  There's a great aunt ("Pearl"), an ex-boyfriend ("Dan") who is two-year old "Robbie's" father and a mother ("Erica").  Erica's sister, "Jean" is present but Robbie is at daycare.

Step Two:  Define the Problem

Ask what happened.
Ask how he or she feels about what happened.
Summarize each statement.
Give each party approximately equal time to talk.

We dig in.  Robbie was injured on the playground and the school called Dan, whose week it was to be with Robbie.  Dan called his Aunt Pearl who called Erica.  Erica arrived at the ER as the doctor was putting Robbie's final stitches in.  Erica demanded that Robbie come home with her.  She and Dan fought.  Dan picked Robbie up into his arms and left the ER with him.  Erica, hysterical, called Pearl.  Pearl called Dan who asked her to come over. 

So it came to pass that on a sunny Southern California morning in West Los Angeles that Erica pulled up to the curb, jumped out of her car and headed toward Dan's front door.  Pearl came out of the house as soon as she saw Erica arrive and was standing on the front porch by the time Erica opened her car door and headed toward Dan's house. Angry words were exchanged.  According to Erica, Pearl struck her in the face, knocking off her sunglasses.  According to Pearl, she simply pushed Erica's finger away.  The police were called and Erica's civil harassment petition followed.

Step Three:  Identify the Issues

Use active listening skills (repeating, summarizing, clarifying).
Focus on issues important to both parties.
Stay neutral.
Ask if any issues have been missed.
Identify areas of miscommunication or wrong assumptions

I'd elicited "the story" and asked whether there might not have been miscommunications.  No one was ready to acknowledge that his or her version of "the facts" might be their own subjective experience rather than objective reality. The parties are in a courthouse so it's not surprising that they want someone to decide who is telling the truth.  But the "truth" I'm hearing doesn't have anything to do with who did what to whom and in what order.  The truth I'm hearing has more to do with family.  

"This is what I'm hearing," I say.  "I'm hearing that Pearl and Erica are not only related by blood, but by mutual affection.  This is the first time Pearl and Erica have had a serious fight of any kind, let alone a physical one."

Silence.

"Am I right?"

Pearl and Erica nod their heads in agreement.

"And Erica," I say, "you want an order from the Court that will prevent Pearl from coming near your home or calling you on the phone or contacting you in any way for three full years?"

Erica is crying and nodding "yes."  She tells me she is afraid of Pearl now.  Pearl never wants to see Erica again, she says, but Erica still wants that Court Order.

Erica and Pearl are adamant and unyielding.  I feel stuck.  Then I take a deep breath and plunge in.

"There's someone missing here," I say, as I draw an empty chair up to the conference room table.  "Who's missing?"

Silence.

"Who's the person most likely to be hurt by this incident," I ask, "and the person mostly likely to be hurt by this Order?"

"Robbie," mumbles Erica as Pearl mists up nodding in agreement.

Step Four:  Find Solutions

Address issues one at a time.
Brainstorm solutions.
Ask what each party would like the other to do differently in the future.
Ask what each party can do to resolve the dispute.
Ask what can be done differently if the problem occurs again.

It would be nice if life were a script.  Boring, but predictable.  We don't have much of a choice, however, and at this moment the court clerk comes in on a mission from the Judge.  He has a crowded afternoon calendar.  If the parties haven't settled the matter yet, he needs them to come back to his courtroom right now.  I quickly summarize where we're at -- Pearl is willing to enter into a written agreement that she will not contact Erica so long as Erica agrees not to contact her.   We haven't agreed on a time period even though I'd suggested six months with a follow-up pro bono session with me to see how life had been thus sundered.  No deal.  I ask Pearl to head down to the courtroom, telling her that Erica and I will follow.

Just as Pearl leaves, Erica turns to me and asks what her chances of "winning" are.  I tell her I'm no expert and that every judge is different.  I tell her what the statute says she must prove.  I tell her that some judges issue mutual restraining orders even when the other party hasn't asked for one.  I tell her that anyone who violates the order can be arrested.  I tell her how powerful it is; how profoundly it could affect someone's life.  I tell her that it could lock the entire family into a separation painful to Robbie based upon one incident on one day in the life of her family.

She says, "ok, I'll do the agreement; I won't ask for the order" and we head back to the courtroom to hammer out the details.

Step Five:  Agreement and Closing

Write specific agreements for each issue outlining who will do what,
where, how and by what date.
Balance the agreement so both parties take responsibility for the solution
Be sure the agreement is realistic for each party.
Be sure the agreement really addresses the issues.
Ask if any issues have been missed.
Ask parties to prevent rumors by telling people the dispute is resolved.
Thank the parties and congratulate them for their hard work.

It nearly noon and I have other parties waiting for me to mediate their civil harassment petition.  Because I am conducting this mediation as part of a mentoring project, I have an assistant mediator who takes over on the agreement and closing for me, which he does, after which the Court convenes and congratulates the parties for working out a solution themselves.

This is a very small accomplishment in the long and terrible history of dispute resolution -- beginning with blood feuds and still threatening to end with nuclear wars.  Have we really accomplished anything with this family?  Why not simply allow the Court to grant or deny the Petition and send the parties on their way? 

I have a far more dramatic story to illustrate why I believe that this process -- resolving disputes by agreement rather than by decision and order -- is preferable.  That story, next.

___________________

*/  How should the parties have behaved?  Here's Capt. Bill Scott, a 2-year veteran who commands the northeast San Fernando Valley's Mission Division on police-citizen relations as relayed to L.A. Times columnist Sandy Banks in A Power Play, Not Prejudice.

It's always a better outcome when you can resolve a situation by using as little of your authority as possible. And a lot of that is how you perceive the other side. . . . And whether you're willing to explain what you're doing. Instead of just issuing an order.

The best advice I've read from anyone since the dust-up began.

**/  I also volunteer my services as a peer mediation coach for the Western Justice Center in Pasadena and can tell you that the process is no different for Middle and High School students than it is for adults.  In fact, these young people often put the rest of us to shame.  Use their form the next time you need to help someone resolve a dispute and see what happens! (form here)

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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