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Mediating Civil Harassment Petitions With A Few More Thoughts On Gatesgate

Some people are so dangerous and some situations so volatile that restraining orders are of little use.  Consider this tragic tale of the courthouse shooting of a woman who had “secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being ‘within 100 yeards of any firearm’ while in the presence of [his ex-wife] Eileen and [the couple’s] children.”  Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.  Here’s the appellate court’s summary of the facts:

Eileen and Harry separated in October 1993. Harry failed to comply with orders of the family court relating to spousal and child support, and Eileen sought redress in the family court on various occasions. Harry became verbally abusive toward Eileen. On at least three occasions prior to September 1, 1995, Eileen informed the bailiff in one department of the family court that she feared Harry and believed he might attack or kill her in the courthouse.

On at least one prior occasion, the bailiff searched Harry for weapons before permitting him to enter the courtroom. Eileen also previously had provided the bailiff and a judge in the family court with copies of letters and telephone messages in which Harry threatened to kill her. Eileen had secured restraining orders that prohibited Harry from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited Harry from being “within 100 yards of any firearm” while in the presence of Eileen and the children.

On September 1, 1995, Eileen appeared in department 27, one of the courtrooms hearing family law matters at the Central Civil Courthouse. Eileen and Harry were directed to proceed downstairs to department 1A. As she reached the second floor of the building, Harry retrieved a loaded .38-caliber revolver that had been concealed in his clothing and shot Eileen in the chest at point-blank range. Their daughter Lisa witnessed the shooting. Eileen died soon thereafter.

Power Cannot Protect Us

In my last post I posed the question whether a Civil Harassment Restraining Order is “better” for people who are living in fear of another than a mediated agreement between those people.  From the story of Henry Zelig and his family above, you can guess my own answer.  A restraining Order cannot protect us.  If we are not dealing with a crazed maniac (in which case we need to disengage and perhaps even hide rather than summoning our stalker to court) the parties’ voluntary resolution of their dispute offers much greater protection for the future.

As lawyer, mediator, and author Ken Cloke writes in Conflict Revolution,

Power contests . . . produce winners and losers, destroy important relationships, and generate a great deal of ‘collateral damage.’  Power also encourages corruption in those who use it, and blind obedience, resistance, and revolt in those it is used against.  Resort to power-based solutions, therefore stimulates future disputes and makes it nearly impossible to change without experiencing major conflicts.

Cloke thinks as little of rights-based solutions to conflicts as he does power-based solutions.  He writes,

[R]ights-based processes rest on bureaucracy, operate by control, and resolut in compliance . . . Rights-based approaches encourage alienation, resulting in personal cynicism, apathy and uncaring.  Neither prevents or transcends chronic conflicts, or seeks to dismantle them at their systemic source.

(you’ll notice in the Gates-Crowley dust-up that “personal cynicism, apathy and uncaring” are the best the population is doing following President Obama’s appeal to a rights-based analysis of the situation, i.e., that the matter reflects racism /* more than it does temperamental outbursts)

The better way?  Cloke suggests that both power- and rights-based means of dispute resolution have given way to a better way of resolving conflicts

based on interestsusing informal problem-solving, facilitation, open dialogue, collaborative negotiation, and mediation.  Interests reflect not merely what people want, but the reasons why they want it.  Interest-based processes therefore do not require winners and losers, are able to prevent, reoslve, transform, and transcend conflicts at their chronic source, support collaborative, democratic relationships, and encourage systemic change.

You may be saying not only that that is quite an order, but it is a solution only for dewy-eyed optimists who do not understand the “real world.”  I can only tell you what I told my civil harassment parties as they made the decision whether to participate in mediation or not.

“Everyone,” I said, “tells me that the other side will never see reason, that the matter cannot be settled, that the parties need a ruling from a Judge and an Order they can enforce against another.  And yet every time I mediate a dispute like this — and I mean everytime — the parties are able to settle their differences amongst themselves by way of agreement and the result is a far more satisfactory and durable solution for everyone.”

But you don’t need to take my word for it.  Download the Middle and High-School Peer Mediation materials and use the process yourself.  You’ll be surprised at the results and happy you did.


*/  I do not mean to diminish the role race played in this dispute, simply that a rights-based race-conscious response by the President did nothing to resolve it.  As Cloke wisely notes in his Introduction:

[E]very conflict takes place not only between individuals, but in a context, culture, and environment, surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time on history; on a stage; against a backdrop; in a setting or milieu.

Because our history of slavery and racism is so shameful a part of our history, we too often either suppress its role in conflict entirely or raise it up as the primary focus of our attention.  Neither is “correct.”  Hence the circles we continue to run in whenever race is part of the context in which conflict erupts.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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