Mediation in Family Law Cases During COVID-19
Thursday, April 23, 2020
Many family law attorneys would argue that alternative dispute resolution (ADR) formats such as mediation, arbitration and collaboration are more effective than litigation in family law cases. Due to COVID-19, ADR (most often mediation) is the only immediate option available for many. Some family courts are conducting hearings remotely via Zoom, but for the most part they are not able to address non-emergent disputes. As of now, judges are not compelling mediations via Zoom, so attorneys and/or clients have to agree to participate. Users are reporting great results from Zoom mediations, but there are pros and cons to consider.
Technology: Does everyone have the technology needed to participate? Is Zoom secure?
There may be other platforms available, but most attorneys are using Zoom for mediations. Zoom is available on PCs, Macs, Android phones and iPhones. Users can try a free version, but conferences are limited to 40 minutes. However, as long as the host of the meeting – usually the mediator – has purchased a package, there are no time limits, and he/she can invite as many people as needed. Even if users do not have WiFi available, they can use Zoom on their phones. There were initial reports of "Zoom bombings" where outsiders were infiltrating meetings with inappropriate content. Zoom immediately responded with fixes to the program, including the ability to enter passwords to secure sessions.
Privacy: The kids are in the house. What if I want to talk privately with my attorney? Do I have to look at my spouse the whole time?
With in-person mediations, children are usually with sitters or in school so people can travel to the office in separate vehicles and sit in separate rooms to minimize tensions. Depending on the ages of the children and the configuration of the home, it may be impossible to arrange for privacy in four to eight hour blocks. Some have created privacy by being in separate rooms or with one party in the car or at their workplace if they are essential workers who have access.
Zoom allows the mediator to put people into separate cyber rooms so the user does not need to look at their spouse or opposing counsel during mediation. The mediator goes back and forth between rooms and can create multiple rooms to have conferences with one or both attorneys. The mediator has to assign specific people to each room, and only those people are allowed in and out so there is no danger that a user's spouse can sneak into the user's room. For extra security, the mediator can also lock a room with a password.
The bottom of the screen has a toolbar which allows a user to mute your microphone or turn off video. There is also a chat button which allows a user to message those in a particular room. The chats are not visible to people in the other breakout rooms but would be to the mediator when he/she enters the user's room. The chat feature is likely more useful in a large group meeting rather than a mediation setting. There is also a help button which allows a user to message the mediator to enter the user's room for assistance.
Domestic Violence: How can mediators assess for domestic violence and ensure safety for survivors?
Cases involving domestic violence are not often appropriate for mediation – in person or via Zoom. However, the Zoom setting poses additional risks for survivors. They are not able to have attorneys physically present as a support and some survivors are stuck in the same home with their abusers. Safeguards (if possible) include mediating from a location outside the home. Some argue that such mediations qualify as essential under Gov. Whitmer's stay-at-home order, so a survivor could go to an attorney's office to participate.
Michigan's mediation court rule requires mediators to screen for domestic violence before every mediation, and this remains true with Zoom mediations. Just as with in-person mediations, the mediator can call participants separately before the mediation date to screen (Zoom allows the mediator to assess facial and body reactions) or put people in separate breakout rooms during the mediation. Some mediators choose to send questionnaires, though this method is riskier because the mediator cannot see, hear or even be sure who is completing the form.
It is important to assess with an attorney if a Zoom mediation might exacerbate the situation. If a user does not feel safe participating in the process, it may be best to wait until the stay-at-home order is lifted.
Memorializing an Agreement: If we reach agreements how can we make them binding? How can I review a written document with my attorney?
The agreements reached at mediation need to be memorialized in a written document and signed by both parties. Sometimes this can happen at in-person mediations if an attorney or the mediator drafts something during the session, and everyone reviews and signs that document before leaving the mediation. Such review and signing are also possible in the age of Zoom with e-signing through programs such as Clio, Adobe and Docusign (e.g., users should make sure the programs are encrypted for security). Documents can be shared via email or a screen-sharing option. The breakout rooms provide attorneys and clients the ability to privately review a document together.
If time or technology do not allow for electronic signatures, parties can place their agreements on the record, and the mediator can record the recitation via a Zoom feature or on their phone. A written agreement can be drafted from the recording and emailed to everyone for review and signatures. This option may be better for those who prefer to spend more time drafting and reviewing but want to lock down the agreements before someone changes their mind.
Cost: I am not working and cannot afford to pay an attorney or mediator.
For divorce cases, you may have to wait until the courts are functioning at a more regular pace or until dispute resolution centers are functioning with Zoom or back to scheduling in-person mediations. However, some courts are offering free mediations for motions thanks to local attorneys volunteering their time. Contact the court or local bar association for information on such programs.
Conclusion
Zoom mediations may not work for every case. Some attorneys, clients and issues require in-person sessions to be effective, and some do not feel comfortable making major life decisions from their cars. There is something to be said for the human element of mediating in person. However, others want finality of their issues now so they can have some certainty in these uncertain times.
Zoom (and similar programs) are likely to be around well after the stay-at-home order expires. Attorneys, judges, staff and litigants will need to adapt. Thankfully, Zoom is user-friendly and has free, easy-to-follow trainings on its website. The bottom line is that Zoom offers an efficient, productive alternative when people are anxious to resolve disputes but have limited options.
© 2020 Varnum LLP
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ABOUT THIS AUTHOR
Counsel
Shalini is a member of the Family Law Practice Team. She specializes in family law litigation, including high-income and high-asset divorces, custody and parenting time, child support, paternity, property division, retirement benefits and post-judgment matters. Her goal is to help clients during one of the most difficult times of their lives get from Point A to Point B in the most efficient and painless manner possible.
Shalini is a trained mediator and an adjunct faculty member teaching family law at the University of Detroit - Mercy School of Law, as well as a regular presenter...
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Julia is the chair of the Family Law Team and works with clients in family law matters including divorce, child custody, child support and parenting time matters. She has unique experience with international custody cases and valuation and division of high net worth marital estates. She is also a certified mediator with a focus in family law.
Julia's experience also includes representing clients in commercial litigation.
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