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.

I once had a person tell me they would never use mediation again after their first experience. I asked why.  Their answer:  "I felt the mediator forced me to accept her solution."

This was clearly an unfortunate example. Standard One of the "Model Standards of Conduct for Mediators" is self-determination, which is defined as "the act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome."

This standard is generally assumed to apply both to mediations in which the parties voluntarily elect to mediate and those in which a court has made mediation mandatory. In these cases, while a court may order participants to attend mediation, the court and the mediator may not mandate the extent of the parties' participation nor force or coerce a party to settle. Standard One makes it clear that mediators should inform the parties that participation is voluntary and that any party may withdraw from the process at any time.

Proponents of mediation, such as myself, strongly contend that the voluntary nature of mediation leads to better settlements than imposed decisions by third parties. It leads to greater satisfaction overall and the likelihood that the parties will follow through with the terms of their agreement. 

But realistically, mediators will also talk about the tools used to encourage parties to settle. I know I do. So the question becomes, "When does encourage become coerce?" 

For example, one tool mediators may use is "deadline pressure" to encourage the parties to reach an agreement. When a mediator says, "It's almost lunchtime. Let's see what we can do to wrap this up before lunch." Is that encouragement or coercion? Or when a mediator reminds the parties of the negative consequences of not reaching an agreement, is that encouragement or coercion?

Today there are those arguing that "times have changed" and that courts and corporations expect that mediators push for agreements and that mediators, such as I, who advocate for self-determination, are living in the era when mediation became popular in community mediation centers when self-determination was the defining characteristic of the process. Perhaps I am advocating "pure" self-determination. As one author has written, all mediations are voluntary, it's just that some are more voluntary than others.

In my opinion, mediators must explain the process he or she intends to use to the parties and that the parties must agree to that approach. Going back to Standard One, parties should be able to make free and informed choices as to PROCESS as well as OUTCOME. If a mediator intends to press for an agreement, I believe that approach should reveal that to the parties so that they have the opportunity to decline participation or request the use of another style of mediation or another mediator entirely.