Part 1 - Mediating Temporary Protection Order Cases

Introduction
In-Service Notes from Wednesday, February 9, 2022

Protection order cases, also known as Temporary Protection Orders (TPO), are cases in which one party is seeking protection from the other party from issues like harassment, threats of violence, etc.…Our mediation model works well in these cases, and, there are some things to watch out for. If you are considering adding this type of case to your bookings, or would like to brush up on the complexities, come learn some of the special operations from those who have been there.

Discussion: (About ten mediators worked together for about 90 minutes)

What are the Best Practices?

• Our NMC Protection Order Cases document included in our Mediators Protocol Handbook is a great place to start to gather ideas on how you will work into a TPO case in a safe and helpful manner. See later in these notes or refer to the NMC Mediators Protocol Handbook.

What are the Differences between TPOs and Small Claims mediations?

• Adverse party is highly motivated to come to an agreement

• A possibility that violence is already established between the parties

• Not about money

• Parties come in already escalated/higher levels of hostility

• Sometimes a TPO is underlying/part of a Small Claims case

• Consequences are different: TPO can mean jail time if violated

• Potential of a higher level of power imbalance

• Often an ongoing relationship is present in a TPO (ex spouses, neighbors, etc)

What does safety mean to you? (participants were put into pairs in breakout rooms to discuss then report back)

• Safety must be considered for the mediators and for the parties. That is the mediators first and most important job in these mediations.

• Physical safety— we are in a courtroom with a bailiff, on camera and so that is good and yet there is an element of physical danger that MAY be present we need to watch for. De-escalation early is critical. ; not an issue on zoom.

• Psychological safety—when to stop threats/yelling; how much escalating is venting and ok?

• Determining up front what the parties need: often done by the clerks/bailiffs before we get there; alternately a conversation before entering the mediation.

• Prep with ground rules and stick to them

• Self-talk prior to mediation to get yourself ready for the taking of control and deliberateness you will need to run this typoe of mediation.

• Consider trauma: do no harm, either to self or parties. Always check with the parties and error on the side of caution when moving them into potentially dangerous topics. Give them a way out before they have gotten in.

• Bottom line: we all have different thresholds that indicate ‘safety’ and as mediator it is our job to keep a close eye on everyone including ourselves so we do not cross that threshold.

(Lots of anecdotal stories shared)

What do you see as the Effects of Fear?

• Fight/flight/freeze, natural reactions to threat. The job of the mediator is to reduce the fear in the room so parties can manage themselves in a way that supports the negotiation they are in.

• Managing/negotiating with fear: can a fearful person make a rational decision? More than likely the answer to that is “no.” And so how will you manage fear that may be in either or both of the parties in your mediation?

What techniques have you used in a TPO mediation?

• See the NMC TPO Best Practices document.

• Is it best to start with storytelling (opening statements by parties)? Maybe….depending on how long they go on, how much ‘juicy detail’ is being said…it depends 😊

• Some have started with the end: asking, ‘what do you want?” before stories start

• Do you as the mediator want/need to get to the deep, underlying issue? Again, it depends

• Consider changing your normal opening strategy to make sure you meet the parties where they are in the relationship.

• Gathering as much information prior to engaging with the parties is critical. The clerk, the baliffs, the judge, the NMC coordinator, the paper filing and response, and finally the parties have information you need to gather before making a decision on if and how to approach the mediation.

NMC Protection Order Cases details included in our Mediators Protocol Handbook

Some elements to focus on in these cases:

• The person asking for the protection is called the “Applicant” while the person they are seeking to be protected from is called the “Adverse Party.”

• A Protection Order has severe consequences if the Adverse party violates it, including jail time. Many Adverse Parties are extremely motivated to work things out.

• These cases do not have mandatory mediation and so cases must be ordered by a judge to go to mediation and usually have some sense of being resolvable in mediation.

• Parties may come to agreement in mediation AND seek the protective order as an additional part of the process. Parties may also come to agreement and not seek a protective order.

• The general process of starting and conducting the mediation are the same as any normal mediation process with the following additional items to consider:

  • Read the NMC Safety Plan document and understand it.

  • Under no circumstances do we mediate Protection Order cases in a venue outside of court or outside of a venue that provides both security checks for weapons prior to entry AND security nearby during the mediation.

  • In person: if at all possible we conduct Protective Order cases with a familiar co-mediator. Online: co-mediation is highly recommended but not required.

  • Trauma is often a component in these cases. Do not allow yourself or any of the parties to be traumatized or re-traumatized during the process.

  • Safety for one or more parties and the mediator(s) is critical. Understand and deploy all safety options before entering the room.

  • Before starting a mediation, meet with both parties to ensure they are comfortable being in the same room with each other. Especially important is to make sure the Applicant is comfortable and can feel safe physically and mentally.

  • These cases can be about anything, and typically are centered on behaviors and relationships. Be prepared and willing to explore high conflict, emotional content, when parties need to go there.

  • Mediators opening strategies will vary and depending on the case, and the mediators gut feel.

  • Sample strategies include, and are not limited to:

    • Start in caucus. Move to joint session only if needed.

    • Impose stricter ground rules than other mediations. Get full buy-in and full permission to enforce. Use ground rules as start of agreement. Joint build.

• Reality test all agreements with vigor from many angles.

• Consider carefully how parties will exit the room and building after the mediation. Security / Bailiffs should be brought in to help with that process.