Courts in Orange County, California, appear satisfied with small claims mediation and some are expanding to include mediation for civil harassment cases. Speaking from the bench, one judge indicated that over the past three years he could count on one hand the number of mediated cases that have re-appeared on his civil harassment calendar. Based on several years of personal experience and discussions with other mediators, this author concludes that mediation is highly appropriate for dealing with civil harassment disputes.
The types of disputes lending themselves to civil harassment mediation are those between co-workers, neighbors, former friends, ex-lovers, roommates, new spouses and their partners’ ex-spouses, etc. Disputes among family members and relatives are considered domestic issues and are uncommon in civil court. Disputes involving money fall under other jurisdictions as well.
Normally the parties are introduced to mediation on the date of their Restraining Order hearing. Prior to the court date, a Temporary Restraining Order (TRO) is usually in effect providing the plaintiff with interim protection. At the hearing, the plaintiff requests that a Permanent Restraining Order (RO) be granted; it is usually for a period of three years.
Obtaining the RO is quite difficult due to the serious ramifications for violating it; namely, arrest, fines, and/or incarceration. The plaintiff must show harassment through “clear and convincing evidence.” This standard is higher than “a preponderance of evidence,” used in most civil cases. However, it is less than “beyond a reasonable doubt” used in criminal cases. The bench officer (i.e., judge or commissioner) determines whether there has been actual violence, a credible threat of violence, or an unjustified pattern of knowing and willful conduct that would annoy, harass or alarm a reasonable person.
If the RO is granted, the plaintiff must supply a copy of it to his/her local police department, and the defendant must surrender all firearms within 24 hours. In addition, the California Law Enforcement Telecommunications System [CLETS] database is notified. All State law enforcement agencies, the National Crime Center, and the Federal Bureau of Investigation have access to this database. As a result, a mere traffic stop would reveal the existence of the RO. In addition, it may appear on background checks and can negatively impact employment opportunities.
Civil disputes usually involve considerable stress and heated language. Often parties have developed a severe lack of trust and respect for each other. They commonly accuse each other of lying and acting in bad faith. Consequently they are somewhat leery of the staying power of a mediated agreement. Many petitioners are looking for a document with “teeth.” The parties should understand that (in California) a mediated agreement is not an enforceable court document. The petitioner seeking a legally enforceable document must take his/her chances before the bench officer to obtain a Permanent Restraining Order.
As with small claims cases, civil harassment mediation is strictly voluntary. Before beginning the mediation session the parties should be clearly informed that the petition for a Permanent Restraining Order will be dismissed “without prejudice” (this legal term means the case can be re-filed if necessary). The parties are asked to generate an agreement which will be written in the form of a Stipulation to be reviewed by the bench officer. The Stipulation is treated as a contract by the courts and can serve as credible evidence in a re-filed case. If either party fails to abide by the agreement, the court considers the violation a “breach of contract” and takes the matter quite seriously.
In contrast to a court hearing, parties in mediation have the freedom to express their needs and interests and, with the help of the mediator, generate an agreement favorable to both; the court normally restricts itself to factual and legal concerns. Two mediation models seem appropriate–the Transformative Model and the Narrative Model.
The Transformative Model assumes that humans have a preference for peace and the dispute is an opportunity to heal the broken relationship. It is further assumed that when the relationship is repaired the specifics of the dispute can be readily resolved. The mediator promotes empathic listening and clarification of feelings, and asks the parties to affirm positive qualities in each other. Readers interested in learning more about the Transformative Model should read R.A.B. Bush & J.P. Folger (see References).
The Narrative model assumes that disputes are socially constructed through language. That is, a particular dispute can be a result of opposing perceptions resulting from self-talk, talking with supporters, and allowing the frailties of language to generate faulty thinking. It is said that the dispute takes on “a life of its own” apart from its initial causes. The narrative mediator attempts to deconstruct the dispute stories by undermining statements of certainty and entitlement. The mediator may also attempt to personify and vilify the dispute by suggesting that the disputants are good persons who are being stressed by an ogre–the dispute. The mediator then helps the parties construct a new narrative by isolating instances of mutual respect, agreement, and collaboration. Rules for future language usage may be included. Readers interested in knowing more about the Narrative Model should read J. Winslade & G. Monk (see References).
The trained civil harassment mediator should help the parties sort through their issues, probe beyond their positions, and be alert for the potential to repair the relationship. One case in point involved neighbors disputing over a number of alleged civil violations. They belonged to the same ethnic group. Once the mediator discovered they both were Christians, he asked questions about the power of their faith to forgive and renew their relationship. Upon reflection, the parties agreed to work on their friendship and refrain from calling each other derogatory names. Following mutual apologies and commitments to be “more neighborly,” the plaintiff invited the defendant and her friends to a potluck. The parties were pleased with their agreement and sat next to each other when they returned to the courtroom for the judge’s approval.
In contrast to small claims cases, civil harassment cases may involve lawyers. The mediator, however, can determine the role the lawyers play. They may attend the mediation but speak only as consultants, they may be physically excluded and consulted during caucuses, or they may actually speak for the parties. This author recalls one case in which the parties were too hostile to meet face-to-face but one party agreed to meet with the lawyer of the other. The mediation was successful.
Since civil disputes, especially those among neighbors, are seldom one-sided, the mediated agreement (the Stipulation) can spell out responsibilities for both parties. The mediator may ask each, “What will you do (or not do) to make life better for the other?” Following that exchange, the mediator may ask each, “What might the other do (or not do) to make your life better?” These responses are melded into agreement statements that usually oblige both parties.
Although the goals of the Transformative and Narrative models are attractive, often “peaceful co-existence” is the default agreement. Such agreements generally include the following:
Realizing that parties can cleverly generate subtle ways around the letter of the Stipulation, this mediator tries to get them to accept an additional bullet point in regard to the spirit of their agreement. It might read,
Generally, the parties are quite willing for the statement to be included.
In a recent case, two adult neighbors could not get along and opted for peaceful co-existence. They were willing to stay 15 yards away from each other and have no direct or indirect communication; however, they considered it unfair to keep their children from playing together in the apartment play area. With help from the mediator, they agreed to allow their children to play together; in the case of a playground squabble the children would be separated for the rest of that particular day. Both parents agreed to do their best to make their agreement work and separately teach tolerance and peace to their children.
Civil harassment mediation appears to have a high level of success. It represents a two-way negotiation between disputing parties and side-steps the orientation of the RO that puts the burden of compliance solely on the defendant. From this author’s experience, there is often a noticeable reduction of stress by both parties once the Stipulation has been signed. As a result, relatively few mediated cases re-appear on the court calendar, an indicator that mediation is appropriate for civil harassment disputes.
Bush, R. A. B., & Folger, J. P. (2005). The promise of mediation: The transformative approach to conflict. San Francisco: Jossey-Bass.
Winslade, J., & Monk, G. (2000). Narrative mediation: A new approach to conflict resolution. San Francisco: Jossey-Bass.
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