Mediation of Restraining Orders

When the term “restraining order” is mentioned, most think of marital and domestic partner disputes. And, without question, most restraining orders are issued for such a scenario.

However, recently the number of civil harassment cases apepar to be increasing. Neighbors, friends and ex-lovers, roommates and co-workers are filing for a Temporary Restraining Order (TRO) in record numbers. Generally, a person may obtain a TRO by appearing before a judge or magistrate without giving notice to or being the presence of the offending party. The applicant must show in a signed, sworn affidavit that immediate irreparable injury, loss or damage will result to the applicant. TROs are only issued for a limited number of days, generally up to ten.  After the adverse party has been given notice, a hearing is held to determine if a permanent restraining order should be issued.

While a TRO is relatively easy to obtain, a permanent restraining is much less so because of the consequences. In California, for example, the complaining party must provide a copy of the restraining order to local police and the offending party must surrender all firearms. The restraining order may be entered in law enforcement data bases and violating the restraining order may result in arrest, fines and even incarceration.

In some jurisdictions, people filing for TROs are given the opportunity to try mediation prior to the court date for the permanent restraining order. If this option is available, some parties do elect mediation.

Not all such cases may be appropriate for mediation. These disputes usually involve lack of trust between the parties, high degrees of stress and previous strong accusations against one another. But for some situations, mediation offers a much more restorative process.

I have mediated such cases in the past and strongly advocate their use when appropriate. One example was an active duty police officer who had not revealed his occupation to his neighbors. One weekend, his neighbor's daughter was “racing” her new car up and down their residential street. The officer in plain clothes stopped her and perhaps very strongly lectured her about the danger she was potentially causing to children playing nearby. The young girl goes home and relates the incident to her mother. The mother then goes to her neighbor’s house to confront him. In a heated discussion, the mother starting gesturing with her arms. The officer reacted to what he thought was a potential strike by grabbing her arm. The mother struggled free and ran home. The next day she obtained a restraining order.

In mediation, I gave both parties time to describe what happened. Feeling there was more to the story, I held individual caucuses. In confidence the officer told me that he did not want to reveal his employment to his neighbors and that as a police officer he could not have on his record that a restraining order was issued against him. I asked him what he wanted to do. After some thought, he said “I’m going to have to make a serious apology and say I’m sorry.” In a joint session, he did just that, and his apology was sufficient for the mother. We then worked out an agreement where the officer agreed to bring any concerns he might have in the future about the daughter’s driving directly to the mother by telephone. The apology and agreement was sufficient for the mother and saved the officer from a possible permanent restraining order.

I have mediated other such civil TRO cases and find that in those where the parties are able to have an open discussion in a safe environment can find a way to co-exist without resulting in a permanent restraining order.