Part 2 - Mediating Temporary Protection Order Cases

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

Discussion: (About fourteen mediators worked together for about 90 minutes with Judge Pierre Hascheff)

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.

Guest Speaker Judge Pierre Hascheff (Reno Justice Court, District 6)

1) A synopsis of what we discussed last time in February session. (See Part 1 notes)

• Sharing additional anecdotal stories.

• Question: thinking about escalation: take it to you personally, when is the last time you became escalated, maybe slightly out of control; and how did you get out of that situation? Self-awareness is critical as we can become escalated too. (group discussion)

2) Judge Hascheff:

Proposed questions presented in advance:

• Please tell us about protection order cases and how they fit into the community.

• Tell us about the types of cases you send to mediation that involve protection orders.

• What happens with the agreements that are reached in mediation when they come back to you?

• Are there things we should know from a legal standpoint about this type of case and mediation?

• Why do we get some cases and not others?

• Q&A

Mark gave a brief introduction and review of the previous in service for Judge Hascheff.

(all comments are paraphrased)

JH::

• You provide a valuable service; as a judge I have no option on the bench to mediate cases. I hear evidence and make a decision. Mediation would lead to ethical issues with bias. Without you, our service would end with only losers and winners, not with both winning like in mediation.

• Some people should not be in TPOs, they aren’t bad people, they make bad decisions. TPOs are made for bad people not foolish people.

• The TPO process gets abused by people with neighbor issues, roommate issues, situations where two people just need to sit down and find a resolution through a mediator. They need to come to grips that they probably won’t get a TPO, so mediation is the next best step.

• If an extended TPO is violated, it’s a Class C felony, and a criminal record. You are required to forfeit weapons if you have them.

• When I tell people these facts it has a sobering effect. If an officer stops you they will run a warrant check and there will be a potential finding as a dangerous person. Not good.

• I start with a status quo temporary, if there is a second temporary, I’ll say come back in 30 days, and I want see good behavior.

• If there is still a problem, I’ll send them to mediation. If you send it back to me with recommendation, with an agreement, a judge signs the agreement and dismisses the case.

• Mediation is a valuable tool and asset, there are no casualties with the result of a restraining order being on file.

• Family court also issues protection orders, we don’t have jurisdiction over those cases. Case example: family court has jurisdiction over custody, mom’s not happy with the new girlfriend, texts are outrageous. Then mom wants to be protected, she puts kids in the order to have protection too. Custody agreement says dad can have kids as well, there’s the conflict. We deny those applications, send them to family court.

• Neighbors who are arguing, you’re coming on my property, it’s a boundary issue, easement considerations. Those don’t go to mediation, wouldn’t be fair, in those cases you’d need to be an attorney to understand land laws. Trespass could be a candidate for a restraining order**. Seldom, maybe one or two times, parties come in with legitimate documents for boundary dispute. Those cases I would send to mediation.

• You have a high success rate, cases I thought never would be resolved get agreements.

• There is a threat of the consequence.

MB: So those cases that come to us for mediation don’t have much of a chance of getting a TPO?

JH: Before I send them to mediation, I tell them the adverse party is at risk: I will make a decision and it could be bad. I tell the plaintiff, if this is not a good fit, you may not get anything, so you both have a risk you can minimize by agreeing in mediation. It depends on the facts, sometimes applicants don’t have a reasonable expectation. Example: applicant says adverse party has cameras on their home; invasion of privacy is not a reason for TPO. They have to show a possibility of physical threat to person or property AND that threat is reasonable.

MP: What are the statutes that govern protection orders?

JH: You’ll find them under NRS 200.575. There are four kinds: 1) stalking and harassment; 2) sexual assault; 3) harm to minor; and 4) workplace harassment.

MB: In the boundary case example, you mentioned that knowing the law around what that means would be important. Should we be more technically adept?

JH: No, mediation puts legal issues aside. I know we have mediation in small claims, and you tell them you’re not there to tell them about legal issues, who is right or wrong, but just hear to try and resolve the case; so they can live with it and get on with their life.

KJ: Regarding the confidentiality agreement: could there be a situation where there isn’t an overt threat, but we get a feeling that someone should know about this… should we let someone know?

JH: No, everything is confidential, I don’t want to know. I tell them I don’t want to hear what happened in mediation. I’ll ask “Any problems between the two of you since the TPO was served?” If no, then I send them to mediation; Then I ask again, if no, I might do second or third TPO so they know the consequences and that I’m looking for good behavior.

Regarding jurisdiction if the applicant is minor, a parent has to file. If the defendant is under 18 we lose jurisdiction; the school district has jurisdiction. If the kid is still problematic, the DA and juvenile division may take it.

The cases that go to mediation are the ones that the adverse party did stupid things, not a bad person. As an example: a kid over 18 was trying to impress a girl and told her he’d killed someone; she was scared and filed for a TPO. Obviously he was not capable, did a few temporary POs to make sure he got it. Haven’t seen him again.

I’m not going to send anything to you that should be in my court. I will send neighbors and roommates.

MB: is there anything we could be doing differently?

JH: I don’t think so, we have had a pretty good resolution rate.

I don’t think a mediator wants to be in the middle of deciding the merits and deciding whose is the winner and the looser. Better to help them understand they should get along together.

DM: In terms of TPO mediations, is there anything that you would like to see in a mediated agreement?

JH: Difficult to say because the mediator is there, I’m not. In a perfect world it would be very detailed. I haven’t seen too many cases where they come back after an agreement is reached. I don’t hear the stories the mediator hears. I make a determination legally. If the agreement is general and they understand it that’s good. Sometimes if it’s too much in the weeds it makes other issues. Just so the parties get it and they’re going to leave each other alone.

LT: Are you seeing more TPOs now, is there an increase?

JH: As of January of this year, I do all the civil for all the judges in lieu of criminal. Since I’ve been doing it I done so many. Before, when I took the bench I was learning, I’d give the applicant the benefit of the doubt. Now I see them but I’ll deny them if I think it’s just foolishness. So, they’re being denied at a larger rate. Because I do them all I see more of them, same standard for all of them. I’m not going to let someone come into court with volumes of documents, none of it relevant. Yes, there are a fair amount of applications, but they’re not making it to hearing. Filings are down as well.

LT: Would you send us the cases that would have been dismissed? Maybe not through court, but let them know about NMC and they can decide.

JH: Here’s what works, as an example, a roommate situation; the TPO is denied, then there is a box on the form that says “other, court ordered mediation.” That requires them to go. There’s always a stinker and a stinker and a half. One’s a little bit more over the top than the other. Just telling them about NMC won’t work, at least one of them won’t go.

ND: In small claims, if there’s no agreement, the parties see judge. In your court what happens when they don’t come to agreement?

JH: I’ve already heard the case, so if no agreement comes back, then I make a decision, denied or protection order. I tell them in advance, you’ll both be losers. If it comes back I’ll do another temporary, I want to see good behavior.

MB: We’re in the process of doing some strategic planning for the center. How can we take on getting ahead of these cases in this community?

JH: People will be people, they have their differences; they seem to think that the remedy to all problems, justified or not, is a RO. Police don’t want to deal with them anymore, they keep getting called out for neighbor issue, so they tell them to get a RO.

When we were out of time, all gave much thanks to Judge Hascheff for attending.

**protection order and restraining order are the same thing