Students Mediate Harassment Prevention Ordersby Chris Pochon ‘13, Harvard Mediation Program First published on the Harvard Law School website
“Keeping the emotions in the room in check is probably the biggest challenge,” says mediator Aseem Padukone ’14. So far, Padukone has mediated two HPO cases. “HPO cases are almost exclusively centered around frayed relationships between the parties. It is important to help the parties sift through their emotions and to see if they can reach an agreement that is amenable to both of them.”Today, though, the judge has a unique option at his disposal to assist parties seeking an HPO. Sitting at the edge of the courtroom are two student mediators from the Harvard Mediation Program (HMP). They are here as part of the court’s HPO mediation pilot program. As the judge works his way down this morning’s docket, he selects cases that look like they might be better resolved through mediation than by a ruling from the bench. (Cases which present a threat of violence or alleged sexual misconduct do not meet the criteria for mediation.) The mediators and parties go to a private conference room next to the courtroom, where the mediators use their skills to facilitate a discussion between the parties and help them arrive at a resolution to their dispute based on mutual consent.
HPO cases are a relatively new phenomenon in Massachusetts courts. In 2010, the Massachusetts Legislature passed M.G.L. c. 258E, which allows a Superior, District, Municipal, or Juvenile Court to issue a harassment prevention order based on three or more acts “committed with the intent to cause fear, intimidation, abuse or damage to property.” (HPO cases are distinct from M.G.L. c. 209A cases, which address domestic restraining orders and are not part of the HPO mediation pilot program.) The court can order the offending person to refrain from contacting the plaintiff, stay away from the plaintiff’s home or workplace, and even pay damages to the plaintiff for the harm caused. Although some cases require a ruling from the bench, judges and clerks magistrates have found that many HPO cases are ideally suited for mediation. Clerk Magistrate Marybeth Brady, who, along with support staff in Malden District Court, must field all of the questions, complaints, and frustrations felt by parties when they first visit the court, notes that, “In many instances, people just need someone to listen to their concerns and assist them in coming to a meaningful solution for everyone.”
In 2011, after meeting with judges and staff for the Administrative Office of the District Court, Harvard Mediation Program launched its first HPO pilot program in the Quincy District Court. Since then, in part under the leadership of HMP Co-Presidents Amanda Frye ’13 and Jacob Rogers ’13, Harvard Mediation Program mediators have handled over 30 HPO cases in Quincy, and the pilot program has recently been expanded to the Malden District Court. Clerk Magistrate Brady says, “I will admit, given the difficult nature of the cases we deal with, I was reserved in my level of optimism with the results.” After observing the Harvard mediators in her own court, however, she quickly became a firm believer in the program: “I am so impressed with the level of commitment and genuine interest and concern the Harvard mediators demonstrate in everything they are involved with. I can honestly say that I think this has been a great collaboration and a benefit to the court and the community we serve.”
For the Harvard Mediation Program members, who include both law students and members of the greater Boston community, the HPO cases are opportunities to put their skills and training to the test. Each member is required to complete 32 hours of training prior to mediating their first case. Because Harvard Mediation Program uses a facilitative method for conflict resolution, members learn important skills like active listening, summarizing, assumption-checking, and finding parties’ interests. These skills allow them to facilitate an open discussion about the conflict and to encourage the parties to think productively about coming to a mutually acceptable resolution.
The majority of cases the Mediation Program handles are in small claims court. Olga Kamensky ’13, a student mediator and 3L at HLS, notes that HPO cases can present different challenges: “It seems like the backstory of HPOs is usually a lot more complex and personal than many of the small claims cases, and they’re a lot more reliably high-emotion. The other issue is that having an agreement is very different from having an order in these cases in a way it isn’t for small claims, from an enforceability perspective, which can change parties’ assessment of whether mediation is worthwhile.”
While an HPO order issued by a judge or magistrate is enforceable by law, mediation relies on the parties to enforce the terms of their agreement with recognition from the Judge, who reviews the agreement, that if the mediated agreement breaks down, parties can always come back to court and file a new HPO application. Further, mediated agreements can include precise actions and specific terms which may in the long run be helpful to individuals who will interact as neighbors, co-workers, etc. In addition to helping the parties reach a resolution in HPO cases, the mediators must also help build trust between the parties that both sides will abide by their agreement. Although this can seem like a daunting task given the intense emotions involved in an HPO case, the Harvard mediators have shown that they are more than up to the task. Brady notes that, “While not binding, to my understanding we have not had anyone come back seeking further intervention by the Court after mediation.”
Harvard students who have mediated HPO cases found the process very rewarding. Padukone said that he enjoys “the feeling of comfort that parties experience when they are able to reach a mutually beneficial agreement. Often times, one or both of the parties feel harassed, and reaching a resolution will give them the peace of mind knowing that the other party has agreed to a particular code of conduct.” Kamensky agrees, noting that, “The most rewarding part for me has been seeing people take responsibility for things they do and actually communicating with each other—or, in some cases, looking past emotional triggers to reach a compromise. It’s really inspiring to see people who have scared and angered each other so much in the past be able to work something out.”
In addition to helping parties work through complex personal disputes, the Harvard mediators are developing skills that will benefit them throughout their legal careers. Active listening, assumption-checking, empathy and interest-probing are skills that are important not only to mediation, but also to virtually any practice of law. As Kamensky puts it, “Law students should be interested in learning about mediation because being a more effective communicator helps you in all areas of your life, personal (for instance, handling conflict with friends and family better) as well as professional (like understanding and clarifying what clients and supervisors are looking for).”