In this new feature, Resource Center Director Eric Slepak will share inquiries received from court ADR personnel from across the country. It is our hope that sharing these exchanges might answer some questions you’ve had, or inspire you to take a fresh look at some aspects of your court’s programs. Names and other identifying pieces of information are removed, and content is edited for brevity and clarity. If you have an inquiry of your own, please reach out to Eric at info@AboutRSI.org.
My jurisdiction has a prohibition on mediating the terms of civil protection orders. These are cases in which parties who have an ongoing and/or extensive relationship (such as partners, family members, neighbors, classmates or landlords and tenants) require a court-enforced order to protect one or more of the parties from abusive or adverse behavior by another party. I have been asked by some judges whether we ought to reconsider the prohibition. They believe that there are some limited cases in which mediation is both appropriate and useful in agreeing on the conditions of such protection orders; for example, developing a plan for one partner to safely retrieve their items from their partner’s apartment. Can you provide me any guidance on how I might go about changing our rules to allow for such mediation to take place?
Pondering Protection Order Mediation
When it comes to allegations of domestic violence (DV) or other abusive behavior, and the role of mediation, there are many approaches that have merit. In the past, we’ve talked about screening for intimate partner violence
, and how courts generally approach the subject of DV
in the mediation context. Your inquiry is a bit different, however, and based on what my colleague Jennifer Shack and I were able to find, a slightly more obscure subset of this topic.
With regard to court rules or administrative orders, we were surprised that we could not find a single one that speaks directly to the authorization of mediation in the context of protective orders where DV has been alleged. Almost as incredible was the lack of statutory authority, save for Guam’s Conciliation Law
, 19 Guam Code Ann. §7111 (2007). If you are attempting to modify your rules to carve out an exception for mediation in protective order cases, Guam’s law is an excellent place to start. We highly recommend, however, that you have clear and detailed guidelines about the qualifications and training for both the individuals responsible for screening the cases, and the mediators involved in these cases.
As far as programs go, Jefferson County, Colorado’s Protection Order Conditions Conferences
provide a great model for mediating orders of protection. Their program is the product of ongoing input and collaboration among a number of stakeholders, including the local judges and advocates for women who are victims of domestic violence. The program uses a gender-balanced co-mediation model (whenever possible) in which the parties are placed in separate rooms and the mediators, who are trained on domestic violence issues, shuttle between them. During these sessions, parties can work out the terms and conditions of either a temporary or extended protection order, including issues such as parenting time and retrieval of property. Last year alone, they mediated more than 150 such cases
, 68% of which resulted in an agreement.
While we don’t have evaluative data to make more definitive claims about their program, we were able to gain a tremendous amount of insight from speaking with Mark Loye, Executive Director of Jefferson County Mediation Services. We highly recommend reaching out to Mr. Loye
if you are interested in more information. We also know that such programs exist in Nevada
, and have been previously tried in Hawaii
I hope this is a helpful start as you explore new opportunities to provide parties in these difficult situations a better way to find resolution. Of course, I know my suggestions are far from exhaustive, and I will leave it to the collective wisdom of our Court ADR Connection
readers to fill you and me in on what we missed