IS MEDIATION APPROPRIATE WHEN VIOLENCE IS AT ISSUE?

Depending on specific circumstances, some relationships where violence is at issue may not be appropriate to mediate. The mediator can discuss your circumstances with you to help determine whether or not you should proceed. In many cases mediation may in fact present a more appropriate forum for family law cases with family violence than the court can offer. Mediation offers flexibility around the structure of sessions, allowing the parties to caucus (speak to the mediator separately), meet at completely separate sessions, and build in any necessary safety precautions.

Pursuing litigation can present negative aspects for both parties because the court system requires the parties to meet face to face in a formal courtroom setting. The party seeking the order will often not know whether or not the restrained person will appear at the hearing, which can be extremely stress inducing. Further, parties are often required to return on another date, potentially causing more missed work days and needed childcare. Litigation is sometimes used by either party as a repeated form of harassment, causing intimidation or loss of wages.

Can I go to mediation even though I have a current restraining order?

Persons with current restraining orders may seek mediation services although they are generally restrained from being in the same vicinity with each other. They may agree to sign a temporary agreement, preventing the protected party from asserting the mediation as a violation of the restraining order. Although a mediated case of domestic violence may result in the identical Criminal Law Enforcement Telecommunications System (CLETS) restraining order, the results and process will be markedly different.

WHAT IS THE POTENTIAL BENEFIT TO RESTRAINED PARTY?

The protected party may agree to drop the CLETS restraining order if the restrained party agrees to voluntarily sign a family law restraining order. A family law restraining order will not become a criminal order, and will not affect any child custody determination in court. The restrained party will have the opportunity to learn more about the consequences of the violation, and what constitutes a violation. In addition, the restrained party will have an opportunity to have their concerns heard around any necessary communication, such as care of children.

What is the Potential Benefit to the Protected Party?

Depending on the nature of the situation, voluntary agreements can be much longer lasting and more effective than court-imposed orders, when properly created. Furthermore, through a voluntary agreement the protected party can avoid a hearing, which can be emotionally turbulent and further increase conflict. Through mediation, the restrained party will gain a clear understanding of what constitutes a violation of an order, as well as the consequences of a violation. The protected party will also have an opportunity to create a comfortable method of communication when and if necessary, such as a regarding care of children, and establish a comfortable, individualized plan for visitation exchanges.

What is a domestic violence restraining order (DVRO)?

A DVRO is a restraining order between relatives, spouses, or people that are dating or living together beyond a roommate relationship. A DVRO is a civil order, but it is registered with the Criminal Law Enforcement Telecommunications Systems (CLETS) and any violation of the order is considered criminal, potentially resulting in jail time. The basis of a restraining order need not include physical violence. A party must only prove that they are in reasonable fear of the other party. A judge may find acts of intimidation, threats to harm or emotional abuse enough to grant the order.

The DVRO may order that:

The restrained person cannot contact the protected party (by mail, phone, email, through a third party or in person)
The restrained party must stay at least 100 yards away from the protected party
The restrained party may have to move out of the home, if living with the protected party
The protected party can request child custody and child support, and set a visitation schedule
The restrained party may be required to attend a batterers treatment program
The restrained person may have to pay restitution (reimbursement for costs resulting directly from injuries caused by the batterer i.e. medical bills or lost income)
The restrained person may not possess any firearms

What is an Emergency Protective Order (EPO)?

An EPO is issued by law enforcement when they have reasonable grounds to believe that an immediate and present danger of domestic violence exists, that a child is in immediate and present danger of abuse or abduction, or that an elder or dependent adult is in immediate and present danger of abuse. An EPO includes a stay away order, and can include a move out order, requiring the restrained party to stay out of the home for its duration. An EPO is typically issued for 5 days.

What is a Criminal Protective Order?

A criminal protective order is a court order issued in a criminal case. The order may stem from an incident that occurred, and may coincide with an EPO or a Domestic Violence restraining order. However, in a criminal protective order the plaintiff is not the protected party, but the district attorney. Therefore, the protected party does not have any power over whether or not this order remains. The District attorneys office may chose to drop the charges at any point, and if convicted, once the restrained party is in jail the criminal protective order is vacated.

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