While courts remain closed, is there a silver lining for divorcing couples during the pandemic? Absolutely! Alternative dispute resolution (ADR) offers a variety of options and opportunities. In fact, for most couples, there are unexpected benefits. And that goes for their lawyers, too.
It has not been easy to absorb the news that the trajectory of their divorce has been indefinitely derailed. In the old normal, trying as it was to go through the process, at least the promise of having had an end in sight engendered more than a small measure of hope.
For clients who have successfully negotiated and signed their divorce agreements, until they can have the judge’s blessing that their agreement passes muster and they are officially divorced, they are left with a pervasive sense that finality is outside their grasp. And, on the opposite end of the spectrum, for those clients who are well into the heart of the process but still far from settlement, the fact that the courts will be unavailable — and then certainly backlogged — brings on a different host of far-reaching concerns.
Fortunately, those of us who are trained mediators have been able to offer clients an efficient and effective alternative: tele-mediation. In short, tele-mediation is the distribution of mediation services and information through various telecommunication technologies. Most notable of these have been Zoom and Microsoft Teams, modalities that offer document-sharing capabilities and private breakout rooms.
ADR advocates have long sung the praises of this option because it empowers couples to do exactly what they yearn to do now more than ever: take matters into their own hands to the greatest degree possible and fashion their own resolutions without resorting to a court. (Note: For those of us who are ADR practitioners, we generally eschew the word “alternative,” as we believe that it should be the first option that couples turn to, and not a measure of latter resort.)
Despite its name, tele-mediation is a shorthand for all other telecommunication options for divorced or divorcing couples, as it easily encompasses parent coordination matters, collaborative law, arbitration, conciliation, and efforts to settle even the most highly contentious litigation matters.
In the brief time I have been relying more heavily on tele-mediation as an adjunct to my practice, these are the distinct advantages I have noted:
A Little Distance Goes a Long Way
While mediation is a process that is considered by many to be far superior to any of the other divorce resolution options, it is admittedly not easy to be next to, or across the table from, your soon-to-be ex-spouse. As much as we emphasize the need for a “level playing field” as being the sine qua non of mediation, it is unquestionably challenging to make some of the most difficult financial and personal decisions of your lifetime within the confines of a mediation room. Tele-mediation, with its feel of being one step removed, and on your own more comfortable and personal turf, adds that measure of comfort that may well better enable you to get down to the challenges at hand.
Many clients report that their feelings of intimidation, anger, hurt and disappointment can be better managed if they are not within the same physical confines as their spouse. In the same vein, clients report that they tend to be less reactive: there is something about the remote process that enables them to be more reflective and thereby better able to gather their thoughts before responding.
Clients have also shared that they are more willing to say things that would have been more difficult for them to utter in the mediation office (for better or worse). That said, the well-trained mediator recognizes that the art and science of mediation is not just to find common ground; it is also to understand wherein the differences lie, all in the service of working toward resolution.
While being in a mediation conference room is artificial, speaking through various technological mediums with one’s spouse has been an innate and familiar part of the relationship (even if it has not been via Zoom or Microsoft Teams, it may well have been through the not-too-dissimilar FaceTime).
Actual or Perceived IPV
For those matters in which a client would not otherwise feel safe or comfortable in office meetings (even in separate conference rooms within the office), there is something about the feeling of being removed from the same physical space that enables some clients to be more willing to participate via tele-mediation. When intimate partner violence is at issue, gone is the need to plan ahead with couples regarding who will be arriving first and leaving last. The worry about what if the other person is early or late, resulting in an unwelcome physical encounter, is eliminated. A cautionary note: for those matters in which there is a restraining order, the meditator, counsel and the parties must take scrupulous care to ascertain whether tele-mediation would violate a restraining order since amending orders to allow telecommunication conferences cannot occur until the courts reopen. [More about this in Part 2.]
Any mediation process involving clients coming into a mediator’s office has many inherent inefficiencies. For example, as to time management, clients are now freed up from having to tack on driving to and from the office, saving up to an hour at the beginning and end of the mediation. This may also be more economical in terms of any child-care arrangements they may have to make (although child-care arrangements of a different sort may well arise with everyone under the same roof, e.g., one client with older children goes to her car for the tele-mediation conference to be out of the children’s earshot).
I have found that tele-mediations are more goal-oriented. Since people are more comfortable and used to sitting in what this process resembles most — business meetings with agendas and with expectations that business will be conducted cordially, with the plan to have reached certain goals by the end of the meeting — the nature of the process itself has been a model of efficiency. I have also found that there is more attention to preparation: since documents can be shared, the mediator, along with each party, pays attention to what he or she wants up on the screen and what agenda items will be tackled, for how long, and in what order.
Private chat rooms
So often in mediation, an individual needs a break. A “cooling-off” period in private can help the participant regain composure, organize thoughts and press their personal reset button. Or, the mediator may believe it would benefit the process to spend some time with one and then the other participant in the service of shuttle diplomacy — a technique frequently used by some mediators to have sequential private conversations with each participant, all with the aim of finding common ground to advance settlement. Tele-mediation offers these options without compromise to the participants or the process.
As a seasoned mediator, I am left to wonder whether tele-mediation will become a more popular option even when life returns to the old normal.
What’s the silver lining?
Unexpectedly, in these challenging times of remotely sheltering-in-place, tele-mediation is a proven successful modality for “reaching out and touching someone.”