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<xTITLE>Domestic Violence Finding Overrides Agreement to Mediate</xTITLE>

Domestic Violence Finding Overrides Agreement to Mediate

by Mary Novak
April 2015

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

Mary Novak

A case in the Appellate Division of New Jersey Superior Court stands as a reminder of the complexities of family mediation when domestic violence is involved. Indeed, the court found that a finding of domestic violence can trump a requirement to mediate. The parties, O.P. and L.G-P. (names kept confidential by the court) were a divorced couple with one child. In their property settlement agreement they had agreed to continue communicating about their child, and to use mediation in case of disagreement. However, after the divorce judgment a final restraining order (FRO) was entered against the former husband O.P. under the Prevention of Domestic Violence Act. After the FRO, support was ordered to be paid through the Probation Division.

L.G-P., the former wife, took O.P. to chancery court for several payments she said O.P. had not made. Some of the missed payments hinged on communications that L.G-P. had not had with O.P. She protested that the restraining order meant that O.P. was not to communicate with her. The court responded by encouraging her to change the FRO so that the two parties could email about these matters. L.G-P. said she did not want to do this because O.P. would send her derogatory and threatening emails.

L.G-P. also asked the court to release her from the mediation requirement, saying that past mediations had not led to her receiving any of the requested payments from O.P. When L.G-P. claimed that one matter had not yet been resolved during two years of mediation sessions, the trial court ordered her to go to a mediator and resolve the rest of their issues.

The appeals court reversed this order. The court declared that the provisions of a property settlement agreement that required mediation and communication should not be enforced after a final restraining order prohibiting contact was entered. The court stated that “[a]lthough returning to court may be inconvenient and costly, alternate dispute resolution methods are not safe when an FRO has been entered” because perpetrators of domestic violence tend to control and dominate their partners. Therefore, the court found, mediation could not be safe even if the environment were secure, or if shuttle mediation were used or if the parties had representation. Interestingly, New Jersey statutes already prohibit mediation in cases determining whether domestic violence has occurred or determining custody or parenting time. Here, the court ordered that mediation should not be used even when an existing agreement called for it, after the court issued a final finding of domestic violence through an FRO.

Biography


Mary Novak joined Resolution Systems Institute (RSI) in 2012 as Resource Center Director. In this role, she gathers, writes and publishes information on RSI’s key online resources: RSI’s Court ADR Resource Center; RSI’s Just Court ADR blog; and RSI’s monthly e-newsletter, Court ADR Connection. She also responds to inquiries concerning court ADR from across the country. 

Ms. Novak received her J.D. cum laude from Northwestern University School of Law, where she became active in mediation. Through the Center for Conflict Resolution, she mediated numerous small claims cases. Ms. Novak also served on the school’s Law Review and assisted Prof. Joseph Margulies on the research and editing of his upcoming book. 

Ms. Novak had a varied career before coming to RSI and the mediation field. She spent four years teaching in Japan and served a year of AmeriCorps on each coast. She has an M.A. in Arts Management from the University of Oregon, and received her B.A. from the Plan II Liberal Arts Honors Program at the University of Texas.



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Website: aboutrsi.org/staff.php?ID=26

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