Restraining Orders and Mediation – Balancing the Equities

By:  Deena L. Betze, Esq.

We all know that mediation can be an effective and cost saving tool to resolve family law disputes. This is certainly true with regard to custody and parenting time issues. It is a well-used method for alternative dispute resolution often relied on by judges who otherwise would not be able to handle an already overcrowded docket. Without enough time or resources to try every litigated case, it is common practice for courts to order parties to mediate some or all of their issues both during and after divorce litigation. Similarly, parties who resolve their matters by way of settlement often include mediation clauses in their marital settlement agreements, whereby both parties agree to first submit a future dispute to mediation before either party resorts to motion practice before the court.

 

What then, to do when there is a final restraining order in place? Can mediation ever be utilized when a domestic violence restraining order has been entered against one of the parties?

 

This issue was recently addressed by the Appellate Division in O.P. v. L. G.-P., Docket No. A-0835-in which the lower court had ordered the parties to mediation in reliance upon an agreement to mediate their disputes set forth in their marital settlement agreement. Unfortunately, escalating disputes between the parties following their execution of that agreement and divorce resulted in the entry of a domestic violence restraining order against the plaintiff. The Appellate Court held that the lower court erred by enforcing the mediation provision in the agreement because of the entry of the final restraining order, finding that when a final restraining order entered pursuant to the Act For the Prevention of Domestic Violence is entered contains a no contact provision, a judge in a subsequent proceeding should not urge or encourage the victim to lift or modify that restraint. Thus, the Appellate Panel held that the court cannot order parties to mediation when a final restraining order is in place, for reasons of safety as well as public policy concerns, even where a mediation clause may be set forth in a settlement agreement.

 

There is no question that victims of domestic abuse must be protected and restraining orders previously entered be upheld, even if doing so contravenes the court’s similarly important role in upholding and enforcing marital settlement agreements that are fair and reasonable. However, this decision does not preclude parties from participating in mediation or other alternative dispute resolution techniques to resolve their disputes when a final restraining order exists, under circumstances in which the victim is protected. A restraining order can be amended to allow for a certain measure of communication on limited issues between the parties, for example, so that they can mediate a parenting issue. Certain protections can be put into place to assure the victim’s safety, such as conducting the mediation in “caucus” fashion, in which the parties are in separate rooms and the mediator speaks to them individually, one at a time. Counsel for the parties can be present and participate in the mediation to afford another level of protection to the victim. Accordingly, if the victim chooses to go to mediation, he or she is not precluded from creating a specific amendment to the restraining order to do so, and under the right circumstances, it can still be a very effective method of resolving issues, even where restraints exist.