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ICADV
Newsletter: Spring/Summer 2001
An
Update on The Legal Institute
by Cheryl Howard, Executive Director
Illinois Coalition Against Domestic Violence
Goals
of the Legal Institute
The Legal Institute of the
Illinois Coalition Against Domestic Violence
(ICADV) began in September of 1999, with a
generous grant from the U.S. Department of
Justice. Staff includes the Director, Peggy Jo
Patty, an attorney with 18 years experience in
domestic violence law, and the Project
Assistant, Sandy James. Prior to its creation,
there was no place to provide state-wide legal
technical assistance (TA) related to domestic
violence, divorce, custody, and support issues.
Accomplishments
to Date
The Legal Institute has had a
very productive 18 months by providing TA,
trainings, and contributing to ICADV’s web
page. The Institute’s ability to provide TA
and training to legal advocates from local
domestic violence programs and to all Victims of
Crime Act (VOCA) and/or Violence Against Women
Act (VAWA) attorneys had the largest impact
throughout the state. Prior to the existence of
the Legal Institute, ICADV staff with no legal
training answered 49 TA calls and provided seven
regional trainings to 200 participants. Since
its inception, the Legal Institute staff has
responded to 658 TA calls. More than 50% of
these were answered at the time of the call; the
majority of the remaining requests were answered
within 24 hours. The Institute Director provided
16 regional trainings to 574 participants. Among
the legal issues covered were divorce, child
custody, and visitation. In addition, the
Institute trained “Trainers” who provided
seven regional trainings on order of protection
basics to another 235 participants.
Illinois does not have one
uniform order form (Order) for orders of
protection. Patty reviewed a sample of
protection Orders from approximately 50
counties. She found that more than half of them
did not meet statutory requirements and she
brought this to the attention of the Judge who
serves as the Co-Chair of the Illinois Family
Violence Coordinating Council.
NEGOTIATING
WITH BATTERERS
IN
ORDER OF PROTECTION CASES, OR
ANOTHER WAY TO GET THE BETTER OF THE BATTERER
by
Suzanne J. Schmitz and Sheila J. Simon*
Introduction
Why
would a Victim's attorney or advocate ever want to
negotiate with a Respondent in an Order of Protection
case? Because
it is often the best way to obtain the best result for the
Victim!
The
situation is far too familiar - the Victim has an
Emergency Order of Protection and hasn't seen the
Batterer since the night she left the home.
You meet the Victim, who is your Client, at the
Courthouse before the hearing. She is nervous because her sister, who had witnessed past
abuse, was not able to get off work to testify.
You can see your Client stiffen when the Respondent
walks into Court. The
Judge, although courteous and understanding of domestic
violence issues, has a full morning docket and doesn't
want to hear long, tearful stories.
In these scenarios your Client may be a big winner
if you can negotiate an Agreed Order with the Batterer.
Your Client is relieved of the stress of a Court
Hearing, and she runs no risk of losing.
The Judge will be thrilled to save time on the
case, and the Abuser is more likely to live up to an Order
he agreed to than an Order that is imposed on him.
There
are some situations in which negotiations will occur
between Respondents and Victims' Attorneys or Advocates
regarding Orders of Protection, and we offer some
practical tips to those who will be negotiating with the
Respondent. The
following negotiating tips involve a female Victim
represented by an Attorney or Advocate and a Respondent
who has been served with a Protective Order. The Attorney
or Advocate then meets with the Respondent at the
Courthouse prior to the Court Hearing.
Negotiation Process
Every
negotiation consists of the following phases: a)
Assessment and Preparation, b) Exchange and Persuasion,
and c) Ending the Negotiation and Getting the Agreement in
Writing. The Assessment and Preparation Phase of the negotiation
process allows you to make the most of the opportunity for
your client. You
can prepare for negotiation in the same way that you
prepare for a Hearing - by understanding the decision
makers and how to work with them.
In this type of negotiation, the Preparation Phase,
is probably the most critical, because the other phases
may take place in minutes.
Assessment
and Preparation
At Your Office
As
an Advocate or Attorney, you can take advantage of the
time before the Plenary Hearing date to prepare for
negotiating with the Respondent.
You will probably have most of the information you
need about both parties and the court system.
You know how badly your Client needs the Order of
Protection, and you can anticipate what difficulties she
will face in Court. You
may have some information about how the Respondent will
react to the request for an Order; for example, you may
know whether he is required to carry a weapon for his
employment. You
also have knowledge of the Judge -- will the Judge listen
patiently to your Client's story or will he quickly cut
her off? Or,
having gone before this Judge on other occasions, you
might know that the Judge is unpredictable.
Finally, you know some of what may happen to your
Client if the Order is not granted for example whether
your Client has an alternative place to live and a way to
support herself.
After
you have completed your assessment of the case, you can
plan a negotiation strategy with your Client. Explain your factual assessment of the case to your Client so
that she can correct any misinformation or add anything
that might be missing.
Explain that negotiation often involves
decision-making, and the decisions can be tough ones. Your
Client might find herself in the position of having to
make decisions under very tight time pressures just before
the hearing. That
is why it is crucial to have your Client understand her
options, well before she goes to the Courthouse.
For example, if the Judge in the case is known to
reject restrictions on visitation, it is not wise to
insist on a Court Hearing for restrictions on visitation.
Instead, try to negotiate these restrictions.
Plan with your Client the limits of your
negotiations. If
your Client's safety would be compromised by the
Respondent having access to the residence, plan to end the
negotiation if he insists on access.
Make sure the client understands what you will be
doing on her behalf and that you are not going to make any
decisions for her. Remind
your Client that she is in a position of holding some
power. She
filed the case, and she is the one who will speak to the
court first.
At the Courthouse
At
the Courthouse, just prior to any negotiation, summarize
for your Client the strategy you will use. Remind the Client that negotiation is worth trying, but it is
not the only option.
If all else fails, the Judge is scheduled to hear
the case. Secure
a safe and comfortable place at the Courthouse for your
Client while you talk with the Respondent.
Don't forget your own safety while negotiating.
Try to find a location where the Respondent can speak with
you in some privacy and where you will feel secure as
well. The
bailiffs or other court staff may be of assistance.
Exchange and Persuasion
The
first step in the actual negotiation is to introduce
yourself to the Respondent and let him know that you are
the Advocate for the Victim.
Ask the Respondent if he is represented by an
attorney. If
he is not represented, a good way to open the conversation
is to make sure that he received the Petition for an Order
of Protection. Often the Respondent will use this opportunity to let
you know, in great detail, exactly what he thinks of the
Petition. With
some Respondents, you may need to encourage them to talk
by asking whether they know what will happen today or
whether they have any comments about the Petition. Listen to him carefully, because you may gain some
knowledge that will allow some room for agreement, or
reveal some misunderstanding that can be resolved prior to
the Hearing. Even
if no agreement is reached, you now have a better idea of
what the Respondent will say in Court, and you can further
prepare your Client for the Hearing.
So, avoid interrupting him or arguing with him at
this time.
After
the Respondent has had his say, identify any areas of
possible agreement, and let the Respondent know that an
agreement can be reached and presented to the Judge.
For example, he may say something about wanting
contact with the children.
If so, advise him that your Client wants to make
sure that he has contact, and she has a visitation
schedule that she would like him to consider.
After he indicates what he will agree to, if
anything, tell him you will confer with your Client to let
her know what has been discussed.
You may shuttle back and forth between the two as
parts of an Agreement are worked out, term by term.
This process might take some time, and it may be
useful to let the Judge know that you are working on a
possible settlement, so that the judge may consider
granting you extra time.
Most Judges appreciate efforts to try to resolve a
case and will make accommodations to promote settlement.
Make sure you use any time responsibly, and don't
abuse the privilege of that extra time.
Various
negotiation techniques exist that can be used to persuade
the Respondent. From
our experiences, we believe the most persuasive tactic to
employ, in the context of domestic violence cases, is that
of listening and finding common ground.
Offer the Respondent's suggestions back to him
with some possible modifications.
If there is no room for common ground and further
exchanges, it may be best to move to the courtroom for the
Court Hearing.
Ending
the Negotiation and Getting
the
Agreement in Writing
If
possible, even when there is no agreement, try to end the
negotiation on a note of agreeing to disagree.
If there is an Agreement, reduce it to writing in
the form of a proposed Order as soon as possible.
Have a draft Order with you so that everyone
involved in the negotiations can understand the terms, and
pencil in some details as you go along.
When the negotiating is completed, make the final
changes to the proposed Order.
Give each person time to read the proposed Order.
Explain to your client that she will give the
proposed order to the Judge, and that the Judge may ask
her if she has agreed to its terms.
Make sure the Respondent knows that he also may be
asked the same question.
Before
or after the Judge accepts the Order, let both parties
know that they have retained some control over their
lives, as opposed to letting a Judge make their decisions.
Letting both parties know the value of a negotiated
agreement may help to reinforce the Respondent's
willingness to abide by the Order.
Ethical Issues
Attorneys
must comply with certain ethical rules.
Most of these rules are based on common sense
considerations that apply equally well to non-attorney
advocates.
As
noted above, it is critical that Advocates ensure that the
Respondent is not represented by an Attorney.
If he is represented, you should negotiate through
the Attorney, whom will most likely be easier to speak
with because the Attorney has less of a personal interest
at stake.
A
second concern is respect for the confidentiality of
information given to you by your Client.
Lawyers and domestic violence Advocates are
prohibited from divulging client information without
permission of the Client. Thus, be sure that in planning for the negotiation, you have
obtained permission from the Client to disclose
information you and your Client agree needs to be
disclosed. Under
no circumstances should you release information that
endangers the Client.
As
noted above, only the Client can authorize any settlement.
Do not go outside that authority, without seeking
the Client's express permission.
If in doubt, take a short break and reconfer with
your Client.
In
presenting information to the Respondent and exchanging
proposals, avoid lying or misrepresenting any fact that is
material to the negotiations.
Attorneys cannot lie or misrepresent facts material
to the negotiation. The
same guidelines are good for Advocates.
No
one but the Prosecutor can speak for what the Prosecutor
will do, so threats to file or drop criminal charges may
be seen as mere bluffs.
Lawyers are not permitted to threaten criminal
prosecution to get a good result in a civil case.
Non-lawyer Advocates will maintain a good
reputation by using the same practices.
In
negotiating with the Respondent, take care that you do not
convey that you are in any way his advocate.
Be careful not to suggest to the Respondent that
you are looking out for his interests or have any loyalty
to him.
Also
avoid telling him what the law is because this activity
may be considered the practice of law. You may explain the courtroom process, but not what ruling
the Judge is likely to make or how the law applies to this
case. If he
asks about the law, tell him to ask a lawyer or the Judge.
Although it is often the practice that domestic
violence Advocates prepare the Order of Protection for the
Court or assist the Victim in preparing the Order, nothing
in the Domestic Violence Act specifically authorizes
Advocates to do so. Some
persons consider the preparation of legal documents, such
as court Orders, the practice of law.
The safest course is to ask the Judge, in advance,
if the Judge will complete the form or if the Judge wants
the parties to do so or wants the Advocate to assist.
Conclusion
When
it is advisable to negotiate a resolution with the
Respondent, Advocates and Attorneys must be thoroughly
prepared so that they can negotiate from a position of
strength. They will counsel their Client and obtain authority to
negotiate. In
talking with the Respondent, they will listen carefully to
gain information useful to obtain an Order agreed to by
both parties. Be
sure to present the Agreed Order to the Court as soon as
possible before the Respondent changes his mind.
Obtain an Order that includes the terms of the
Agreement. When negotiation with the Batterer is not in the best
interests of the Victim, prepare for the Court Hearing!
*Suzanne
J. Schmitz is an Associate Clinical Professor at Southern
Illinois University School of Law where she supervises a
mediation clinic. She
teaches a course in alternative dispute resolution that
includes negotiation.
Sheila J. Simon is an Assistant Professor for
Lawyering Skills at Southern Illinois University (SIU)
School of Law and was the staff attorney for the Domestic
Violence Clinic at the School of Law
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