During the last few years, you might have noticed a number of discouraging trends with how people are dealing with one another. As a District Court judge, one that’s come to my attention is the increase in filings of non-family temporary restraining orders (TROs) on Kaua‘i — from 171 in 2014 to 236 in 2021.
The concerns that come to my court vary in intensity, from serious threat of physical harm to quality-of-life issues (e.g., a neighbor’s dog barking). The courts will address them all, but neighbors, roommates sharing a house, co-workers and others who do not have family or romantic ties may find mediation a much better way to keep the peace and preserve relationships in the long run.
Judges prioritize mediation, whether those involved in the case seek it out or not. On the first day in court, if the person whom the TRO is filed against (the respondent) does not agree with what the person filing the TRO (the petitioner) is saying, the judge has them go into mediation. If agreements aren’t reached that day, they can come back to court. However, if both parties enter mediation with an open mind they can avoid the costs and stress of litigation, while realizing a number of significant advantages.
It is important to know there are no guarantees in court. Slam-dunk cases are rare. The only guarantee is one party will win, one will lose. Mediation also has no guarantees, but no one loses if mediation fails.
In a non-family TRO, the petitioner must provide clear and convincing evidence. This is a much higher standard than the preponderance of evidence required for other civil (non-criminal) cases, and requires more than sworn second-hand statements. You can hire an attorney to help present your case, but it could be expensive. The law allows the court to consider granting the winning party costs and fees, including attorney’s fees. Mediation costs half or less what you will pay in attorney fees alone.
TROs are civil (non-criminal) cases, but it is a crime for respondents to violate a TRO. Respondents can be arrested and may end up with a criminal record if they don’t abide by the conditions of the TRO. In mediation, there are no criminal penalties for the respondent if agreements are violated, so it could be better to mediate.
In court, a judge decides the case and the records are public. In mediation, the terms of any agreement are confidential.
In court, the parties cannot add or bring up issues not covered in the TRO petition. The focus is limited. Mediation allows for a wider discussion of the issues, and searches for solutions everyone can accept. This helps maintain relationships for parties who may have regular contact after their dispute is resolved. Mediation also helps avoid future disputes by setting agreements on how the parties will deal with each other after mediation.
While conflict may be a part of life, mediation can open the door to early and workable solutions.
•••
The Honorable Stephanie R. Char is a judge in Hawai‘i’s Fifth Judicial Circuit (Kaua‘i and Ni‘ihau). Today Law Day. Law Day is an annual event, originally conceived in 1957 when American Bar Association President Charles Rhynes envisioned a national day to mark commitment to the Rule of Law. The following year, President Dwight D. Eisenhower established the first Law Day. In 1961 Congress issued a joint resolution designating May 1 as the official date.
Anyone can lie on a petition for a tro. Had it happen to me. Past employee came to my workplace in Lihue, I told them they were in a restricted area and should leave. She ended up filing a tro. She even hired an attorney from M&M. She lost because it was all lies and bs. But I had to waste my time to fight lies.