Positionalism Fuels Fire in Family Court

May* never wanted to see her ex-girlfriend Jacki again, so she initiated the process of taking out a restraining order against her. After filing an initial petition with the family court, May obtained a temporary no contact order, prohibiting Jacki from going near her or talking to her, even through an intermediary. A tumultuous one-year relationship ended by closing off any possibility for dialogue. That’s not to say that pressing the pause button was necessarily a bad option. Working on May’s case as a legal intern at the New York City Gay and Lesbian Anti-Violence Project, I just couldn’t help but wonder if there was a better way

In their early days, May and Jacki were sweet to each other, mutually supportive. May was fond of Jacki’s two children, but drama between Jacki and the children’s father stunted the growth of May and Jacki’s relationship. Arguing evolved into yelling. Yelling evolved into mind games and attempts at manipulation, from both sides. One day when May was visiting Jacki in Queens, Jacki hid May’s car keys to prevent her from leaving the house. Yelling escalated to physical fighting, and the two ended up pushing and scratching each other over Jacki’s refusal to give May her keys. When May tried to break off the relationship via text message, Jacki couldn’t handle the rejection and silence. She sent May pages of texts and Facebook messages. She left dozens of voice messages on May’s cell phone and work phone. May responded with more silence. May knew she needed help with the situation when Jacki showed up at May’s workplace, demanding to see May.

So May turned to the court for help: big, scary court, with lots of rules, technical language, hierarchies of power, and seemingly endless hearings. Maybe May didn’t know what she was getting herself into by pursuing a restraining order. Maybe she did, and still felt it was worth the trouble in exchange for feeling safe again. Or maybe she just wanted to send a message to show how serious she was about breaking up and being left alone. Maybe pursuing a restraining order was all May had left in her communication toolbox.

As law students or as lawyers, is it responsible of us to join a case team, complete our discrete assignment, and eschew the greater context? That is the ethical dilemma I faced when working with May. In providing legal services, I know what I got out of it: skills in client interviewing, legal research, writing, and preparing for oral argument. Before we even met, May got the distance she was looking for when she filed her pro se restraining order petition. When we took May on as a client, she found herself embarking on a protracted journey whose outcomes were predetermined and narrowed by an adversarial process. In several cases I’ve worked on, extreme violence and power imbalances made a mediation-centered solution—one that requires the parties to share mutual interest in resolution and collaboration with the assistance of a neutral third party—impossible.1 However, with May, I don’t think that was the case.

Preschool social dynamics show us that two people who can’t get along or are constantly fighting can resolve their conflict through permanent separation or through the intervention of a neutral. In the preschool version of a restraining order, blame might be assigned, the children are separated, and the underlying problem is swept under the rug. In preschool mediation, kids who can’t get along are forced to talk to each other, learn about socially acceptable behavior, and commit to making specific changes in their attitudes or actions. Blame matters much less in preschool mediation. What matters is that the whole class can learn and work together without the distraction of interpersonal conflict. With May and Jacki, both yelled and fought. Both had at least some causal role in their problems, and both needed help resolving their problem. Could mandatory mediation—similar to the preschool mediation model—have helped? Many criticize mandatory mediation for forcing parties into a space where mutual cooperation and equal bargaining power are key components to just outcomes.2 Critics in this camp emphasize heterosexual gender dynamics and the gendered element of domestic violence to advocate for adversarial processes.3 In cases of same-gender domestic violence, why couldn’t one turn to mediation, mandatory or not, to seek help resolving a conflict, with mutual understanding and an opportunity to be heard taking priority over assigning blame and threatening punishment?

Initiating a civil suit should sound like a risky first step in resolving conflict in a non-threatening way. Going to court is an intimidating experience, and the adversarial nature of family court lends itself to positional, rather than interest-based, conflict resolution. For example, sometime between the point in which Jacki was served with a temporary restraining order and their first court hearing, she and May came to share the interest of living separate lives and remaining out of contact. However, the presence of a civil action to obtain a court-sanctioned end to their relationship placed May and Jackie in the opposing camps of “restraining order” v. “no restraining order.” One person would inevitably “lose”—either by dropping the case, settling, or waiting for a judge to declare a winner—even though both agreed they wanted to move on. Ironically, the family court process itself interfered with the parties’ interests by forcing them to come into contact with one another at the courthouse.

In the domestic violence context, pursuing a restraining order with a lawyer and through the court can be viewed as bringing legitimacy to one’s interest in righting a wrong. In general, civil actions between partners are designed to achieve corrective justice.4 On the other hand, May’s petition for a restraining order may have been received as a (credible) threat, achieving a deterrent effect through the creation of potential costs.5 Whether May’s petition served to provide legitimacy or convey a threat, the end result was clear: it worked. As soon as May filed the restraining order petition, Jacki went silent.

Then we started to dance in a way that only professional tennis players can: through a draining back and forth. We met in court to schedule a motions hearing. Jacki’s attorney filed a motion to dismiss and request for discovery. Jacki’s attorney sent the motion to the wrong address. We requested an extension to respond. We filed a response with a request for discovery. We all met in court again. We learned the motion to dismiss was denied and motions for discovery were granted. We offered to settle. They declined. We scheduled a trial date. Meanwhile, the silence between May and Jacki continued. The lawyers spoke on their behalf.

They say that domestic violence is defined by power and control, with a wide array of behaviors through which such power and control can be exerted.6 It felt to me like my client now wielded considerable power and control over the relationship, especially in light of the personal impact and collateral consequences of a restraining order. In fact, one way that abusers continue their abuse is by being the first to file for a restraining order. How could it be that we as attorneys were working to solve our client’s problems by using the very same power dynamic that we’ve all identified as the underlying problem? While I want to believe that civil matters before the family court are fair, I can’t ignore the powerlessness generated by mandatory hearings, subpoenas and discovery; or the control wielded by the complainant in defining the narrative of the relationship through intimate communications and testimony; or the psychological impact of not knowing when or how the case will get resolved. Power imbalances and diminished autonomy are primary reasons why mediation, especially mandatory mediation, receives such criticism as a process for conflict resolution in the domestic violence context.7 May’s actions to seek a restraining order undoubtedly caused a shift in power. Such a shift gave us the upper hand in initiating a settlement. But we didn’t settle. Instead, both sides dug in their heels.

Settling here meant offering the other side the option to consent to a one year restraining order without a judicial fact finding. This would have ended the hearings and given the parties finality—for one year. Jacki’s lawyer told us that Jacki wasn’t willing to consent to a restraining order, and like that, the settlement talks started and ended in about twenty seconds. In this particular case, our offer—and our adversary’s response—seemed entirely positional. But considering the lawyer’s ethical obligation of zealous representation, a client’s substantive concern can quickly become secondary to legal procedure, the court’s calendar, and the life of the case itself.8

A non-adversarial restorative justice-centered approach may have offered May and Jacki a more meaningful process and resolution for their problem. As a flexible framework with the goal of restoring victims, offenders and communities as a response to the commission of a wrong, restorative justice theory involves restoring the relationships of particular parties in a particular context, with a focus on addressing and repairing harm.9 Even in the traditional domestic-violence-as-gendered-violence narrative, restorative justice practices (such as conferences) may be preferable to survivors, especially where incidents are isolated or far from the extreme end of the spectrum of interpersonal violence.10 For the LGBT community, where the male oppressor/female victim paradigm loses significance, a uniquely queer response to domestic violence may be more appropriate for close cases or instances of mutual abuse.11 The appeal of conferencing and mediation aimed at restoration grows stronger in a case of same-gender intimate partner violence (possibly committed by both parties) involving isolated incidents far from the extreme end of the violence spectrum.

For example, domestic violence issues can be resolved through mediation programs, if “adapted to the realities of domestic violence dynamics.”12 If May’s and Jacki’s goals were to be heard and to express their needs and emotions, mediation with restorative aims would prioritize these objectives over the family’s court’s aims of assigning blame and determining punishment. Absent such an option, attorneys and clients in family court surrender at least some agency and operate in a forum where expression of needs and emotions are possible, but only subject to their relevance in establishing a domestic violence violation, such as proving the fear element of the offense of stalking. While describing an ideal process for resolving May’s and Jacki’s conflict remains outside of the scope of this blog post, it remains important to recognize that the system we were working within emphasized punishment over problem solving.

Not every issue related to the law needs an attorney to take on full-fledged representation in a matter. For some clients, an attorney’s value-add is the ability to assess a case and recommend a course of action, including alternatives to litigation or not pursuing a case at all. When mediation, conferencing, and other community problem-solving models offer an avenue for conflict resolution, nonprofit or possibly government attorneys who regularly conduct intake and assess high volumes of cases are well-positioned (if trained) to identify and refer cases for which ADR is appropriate. By reimagining legal services and paths to conflict resolution as a triage, and by identifying the most effective “referral points” that may exist within a legal system, conflicts like May and Jacki’s could be resolved with fewer resources, less time, and better outcomes.13 Despite operating within the context of a domestic violence nonprofit, however, I didn’t feel like much of a referral point when the options I could present to May were (a) do nothing or (b) pursue a complicated, protracted, and adversarial process. Moreover, it seemed that the help I could provide amounted to forcing my client and her same-gender ex into a social and legal regime (designed to counteract particular heterosexual power imbalances) that exacerbated her underlying problem. If mediation and restorative justice practices are to gain traction in the domestic violence sphere, I hope that policy makers consider the LGBT community as fertile ground for experimentation and empirical research. Maybe, if people like May and Jacki had viable alternatives to ending intimate partner violence, people like me could help clients meet their interests rather than fight for positions.

Stephen Silva ’16 is a 2L at Harvard Law School and a former student in the Harvard Negotiation and Mediation Clinical Program.


*Name and other details changed to protect client identity.
See, e.g., Alison E. Gerencser, Family Mediation: Screening for Domestic Abuse, 23 Fla. St. U.L. Rev. 43 (1995).
See, e.g., Sarah Krieger, Note, The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women’s L.J. 235, 252 (2002).
See Benjamin Schmueli, Tort Litigation Between Spouses: Let’s Meet Somewhere in the Middle, 15 Harv. Negotiation L. Rev. 195, 203 (2010).
See Paul Kirgis, Bargaining with Consequences: Leverage and Coercion in Negotiation, 19 Harv. Negotiation L. Rev. 69, 94 (2014).
See, e.g., Jane K. Stoever, Transforming Domestic Violence Representation, 101 Ky. L.J. 483 (2013).
See generally Susan Landrum, The Ongoing Debate About Mediation in the Context of Domestic Violence: A Call for Empirical Studies of Mediation Effectiveness, 12 Cardozo J. Conflict Resol. 425, 435–37 (2011).
See Charles Thensted, Litigation and Less: The Negotiation Alternative, 59 Tul. L. Rev. 76, 81 (1984).
See Jennifer J. Llewellyn & Robert Howse, Restorative Justice: A Conceptual Framework (Ottawa: Law Commission of Canada, 1998: 41, 44).
10 See Melanie Randall, Restorative Justice and Gendered Violence? From Vaguely Hostile Skeptic to Cautious Convert: Why Feminists Should Critically Engage with Restorative Approaches to Law, 36 Dalhousie L.J. 461, 473–77 (2013).
11 But see The Network La Red, Information for Domestic Violence Providers about LGBT Partner Abuse, available here (“Abuse is never mutual.”).
12 Laurie Kohn, What’s So Funny About Peace, Love and Understanding? Restorative Justice as a New Paradigm for Domestic Violence Intervention, 40 Seton Hall L. Rev. 517, 552 (2010)
13 See generally, Heather Scheiwe Kulp, Increasing Referrals to Small Claims Mediation Programs: Models to Improve Access to Justice, 14 Cardozo J. Conflict Resol. 361 (2013).
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