Our communities place a high value on living together peacefully, but sometimes people have disagreements, which can escalate into serious disputes. When this happens, many turn to the courts for protection from harm or harassment.
Recent data shows that the number of nonfamily TROs filed in the Third Circuit District Courts on Hawaii Island has been trending upwards, from 653 in 2015 to 971 in 2021.
Having presided over hundreds of these cases, I’ve seen many instances where the TRO does what it is designed to do (limit interactions between parties), but the issues continue unresolved (e.g., neighbor still plays music loudly).
Mediation is a dispute-resolution process where a mediator helps the parties actually resolve part or all of a dispute voluntarily, informally and confidentially. The parties retain control over the terms of any agreement reached, which can open the door to many practical, creative, timely solutions everyone can accept, without the uncertainty, stress and expense of litigation.
On average, mediation costs half or less than what you’d pay in attorney fees alone. Mediated agreements remain private, whereas nonfamily TRO hearings are public, with public records that are easily accessible, even by employers and landlords doing background checks on applicants.
Mediation preserves relationships for parties who may need to have regular contact after the dispute is resolved. If it fails, the parties can always go to court.
That said, if you are at risk of ongoing harm or harassment by someone you are not related to, have never lived with in a family setting, and have never been in a romantic relationship with, a nonfamily TRO can offer valuable legal protections.
Nonfamily TRO applications are frequently denied by the court (up to 50% of the time) due to common mistakes, so be prepared.
Provide details about what happened: It’s not enough to say, “I was threatened.” Write a step-by-step outline of what transpired so you can tell your story in a calm, coherent way.
Include names, dates, times, and places as much as possible. Remember, the judge does not know anything about your case. If you jump around and skip steps in the story the judge may have difficulty understanding your situation.
Gather evidence: The law requires the person filing a TRO (the “petitioner”) to support their claims with clear and convincing evidence. This is a much higher standard than the preponderance of evidence required for other civil (non-criminal) cases.
People frequently submit secondhand statements from a purported eyewitness. This “hearsay” is generally not admissible (there are some exceptions) because it is considered unreliable and does not allow for cross-examination of the person who made the statement.
Serve the TRO: After the judge signs your TRO, its protections won’t take effect until it is served on the other party (the “respondent). Family court TROs are served by police, nonfamily TROs are not. You can hire a process server or sheriff. Otherwise, it can be served by any person who is not a party and is 18 or older. A list of process servers is available at the courthouse. Proof of service must be filed with the court.
Consult an attorney: I highly recommend conferring with a volunteer attorney at the courthouse Self-Help Center. There is no charge, and the information can help you prepare for court.
Precautions: While the TRO is in effect, there should be no contact either by the respondent or by anyone acting on the respondent’s behalf. Petitioners are urged to take precautions at all times and report any violations to the police immediately.
Michelle Kanani Laubach is deputy chief judge of Hawaii’s Third Judicial Circuit.
