Section Review

From left: Susan M. DeMatteo, Karen J. Levitt and Cynthia T. Runge

As a result of the pandemic, it is harder for families to access justice than ever before. Even with the use of lawyers, many individuals are struggling to move their cases forward. Some struggle as a result of their own limited means, while others lack knowledge about how to get into court, or how to use or access technology to help them in court, among myriad other challenges. As such, those trying to resolve their family law matters during the pandemic confront barriers, many of which did not previously exist. Ultimately, the lack of access to justice flowing from the pandemic is hurting families who need help.

Mediation and other dispute resolution processes, such as collaborative law, can provide options for those whose cases are seemingly frozen in court, as well as for those who have not yet filed. Family law mediators can make their clients’ mediation experiences useful and impactful even in the virtual world. As a result, mediation can be a lifeline to help parties move through physical and emotional barriers to dispute resolution. But what do those barriers look like?

Physical barriers

Family law mediator, collaborative attorney and parent coordinator Susan DeMatteo says that “Parents dealing with a divorce during the pandemic face extra challenges and barriers that inhibit their ability to resolve their cases. These parents are juggling more responsibilities and challenges than ever before. Fewer daycare slots are available for young children. Most schools are operating on a remote basis or using some sort of hybrid model. While most parents are not technically ‘homeschooling’ their children, these parents still need to be available to assist their children as they navigate the remote learning environment. This is all happening while the parents are juggling their own work responsibilities. Their own jobs may require physical attendance at the workplace, or they, too, could be working some sort of hybrid model. Navigating a divorce during this time adds yet another level of barriers and challenges to the mix. They now worry about how to work with family law professionals in a remote manner. Do they have and understand the technology? How will they use it to communicate with family law professionals and with the court? While many people have become proficient at attending virtual meetings, it may be a challenge for others. How will they gather the necessary financial disclosures and then review, discuss and exchange the documents in a safe and private manner? How will they discuss co-parenting in a private setting away from their children? As family law professionals, it is important that we address these concerns with our clients. We can offer as much flexibility as possible for our clients, and we can assist them in using technology and offer assistance and suggestions for gathering documentation. As family law mediators, we can offer these lifelines to help them overcome physical barriers that are getting in the way of their divorce process.”

Emotional barriers

Cynthia Runge, mediator, collaborative attorney and family law attorney, says, “Clients frequently express a sense of frustration and uncertainty, not knowing when they will be able to get into court. As family law professionals, we know it is important to acknowledge what our clients may be dealing with emotionally during the pandemic: overwhelmed with work/life responsibilities, safety/privacy concerns about how they will participate in the mediation or collaborative process without interruption, financial concerns due to layoffs or limited work ability/capacity, among other pressures. As a result, self-care practices for both the clients and the mediator are even more important than before. Adequate sleep, eating nutritional food, and regular exercise are all well-known tools for maintaining health and managing stress. Mediation is often less expensive and far less stressful than litigation. Mediation, in my opinion, is also more mindful. Mindfulness practices take many shapes and forms: meditation, being in nature, yoga, and focusing on the breath can help all of us stay more grounded and centered during unsettling times. Mediation is a more mindful process because it allows us to create a reflective space for resolving disputes. It allows us to be focused on the present moment and all the emotions that are present in that moment. Having that space for discussion and reflection can be a lifeline to all those involved in family law matters. Mindfulness is something I endeavor to incorporate into my own day-to-day practices and suggest to others going through the divorce process.”

What are some of the challenges for family law mediators during the pandemic?

Karen Levitt, mediator, collaborative professional and family law attorney, says, “The psychological barriers to parties who are either in the court system already or wanting to get divorced and have not yet filed cannot be underestimated during the pandemic. It is not just about when they will get into court; parties are confused about whether and how they can access the court system and have a real sense of being ‘stuck.’ For mediators, it is important to find time as part of the mediation process to acknowledge the high level of stress being experienced by our clients during the pandemic and show empathy and compassion, but also provide them hope for resolution and the future. The mediation ‘lifeline’ gives clients balance between their emotional needs and feelings during the pandemic, and the practical realities of wanting to get divorced and move forward in life. Mediation can provide access to that safe space where clients can have guidance and support in working through their issues, with or without attorneys present, and whether in or out of court. Mediation is a necessary component of access to justice for many; mediators thinking creatively about ways to provide services to meet the needs of the times is critical. Mediators need to be technologically competent, bring in third parties when needed to address complicated or highly charged issues that might benefit from the expertise of a neutral, and expand their tools and techniques to make room for pandemic-related concerns, many of which are totally new to mediation.”

What tools and techniques are available to help parties move forward with their family law disputes?

One technique that mediators can use is to find ways to build trust with clients from the start. Although most mediators are currently only mediating virtually, parties still need to feel really heard. How can mediators help? Karen Levitt says, “Take the time to meet and talk with the parties first, just like you would if you were meeting in person. Consider using breakout rooms to check in with each party to see how they are doing, assuming the parties agree to private caucuses. Streamline ways to exchange documents in advance of mediation sessions, where it is harder to do by Zoom through screen sharing. Utilize forms to make things easier for clients.” These are just a few tips that can have a big impact on the effectiveness of the mediation.

As mediators, we regularly use reframing as a tool. Bill Eddy, a well-known licensed clinical social worker, lawyer and founder of the High Conflict Institute, asks parties in a mediation, “What is your proposal?” in order to help high-conflict parties forward. Karen Levitt observed an interesting variation of that technique while serving as a mediator in a family law case. In that situation, one of the lawyers asked the other party, “What would it take for you to accept our proposal?” Asking questions that help parties use their own problem-solving skills can help them produce the best results. For more tips and ideas to effectively use mediation as a lifeline to help parents, see the information below.