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Jennifer Winestone • April 11, 2020

Online Mediation: The Good, The Bad and the Necessary

With safer-at-home ordinances, court closures, increased stress, anxiety, uncertainty and changes of circumstance, mediation has become an increasingly important dispute resolution process for many families dealing with conflict (old and new). With most mediations now proceeding virtually, via Zoom and other videoconferencing platforms, there are a lot of articles and advertisements touting virtual mediation as the brave new frontier of dispute resolution. Online Mediation has many positive attributes. It also carries challenges and risks different from those in a face-to-face process. It’s important to consider both the benefits and the challenges to this form of process, so you can be better able to mitigate the risks and engage in as productive process as possible in the circumstances. So, here it is: the good, the bad…and the necessary.


The Good:

  • Flexibility and Convenience: There is no doubt that remote mediations are convenient. Your mediation is facilitated from the comfort of your own home, allowing broader flexibility of schedules and access to your professional. No more fighting traffic for an hour each way for that two hour session at the mediator’s office. In fact, parties will have more options for choice of mediator since they won’t be limited by mediator location.  
  • Technology Tools: Online mediation platforms can allow for face to face virtual contact, while also allowing the mediator to share their screen when running support calculations, preparing draft provisions, and listing issues and proposals on a virtual “white board”. If agreed between participants, parties can screenshot, record, and transmit/share documents and proposals in real time, adding to efficiency of process (no excuses for forgotten documents ‘at home’) and active engagement (no need for note taking and less opportunity for mistaken recollection of events). 
  • No Childcare: Online sessions do not require coordination or cost of babysitters. Parties can arrange a private space for the session, while caring for their children at home. Of course, the children must not be in earshot of the session and the custodial parent must ensure safe play is possible without the need for supervision. In some cases, sessions might even be scheduled after bedtime or during naps.
  • Built-In Security: Family dynamics are complex and screenings for domestic violence and physical safety in mediations are imperfect. In circumstances where parties are not living in the same house, computer screens provide a natural physical safety barrier.


The Bad:

  • Confidentiality Breaches: With online mediations, the mediator has less control of the peripheral space beyond the speaker view. Accordingly, it is possible that, despite the confidentiality rules and the commitments of the parties, unpermitted observers could be in the room during a confidential session.  
  • Hackers: Cyberattacks, like Zoombombing (when an unwanted guest joins the videoconference), can raise a serious threat to the confidentiality of the process, privacy of the parties, and security of their personal and financial information.  
  • Communication Limitations: Experts state that over 80% of communication is nonverbal (some say it’s more than 90%). Online mediation is limited in its ability to provide participants with a complete communication canvas, which can limit the mediator’s ability to interpret party cues and optimally facilitate their communications and negotiations.
  • Distractions: Participants engaging in an online mediation may more easily become distracted by incoming texts, emails and outside noise. A party may even self-distract as a form of passive and defiant disengagement from the negotiations. It may be difficult for the mediator to pick up on a party’s disengagement in an online session, impacting productive communications.
  • Bandwidth Disruptions: The internet is working on overdrive these days. Low bandwidth and other technology glitches can significantly impact the effectiveness of a mediation, interrupting the flow of the process and momentum of the parties.


The Necessary:

Unless your conflict can wait out the current crisis, online mediation may be the only form of mediation process available to you right now. Even after the social distancing restrictions have lifted, it may be some time before parties are opting for in-person meetings again. There are no perfection guarantees in any process and, with advance planning, many pitfalls can be minimized or avoided. 

When preparing for your online mediation session, ensure your mediator has set ground rules for confidentiality and party commitment to participation from a private and quiet space. Mediation confidentiality ought to be reiterated at the start of each session. If a participant or the mediator believes someone else may be in the room or within hearing, the session should be terminated and reconvened at a later time when confidentiality can be better secured. The mediator should use a unique meeting password and upgraded subscription plan in order to provide additional account security from potential hackers. The mediator should also continuously monitor the participants screens and end the session immediately upon the entry of an uninvited guest.  

Distractions can be limited by turning off notifications in your settings and asking that all participants do the same. Like with confidentiality, reiteration of the tenets of the mediation process (i.e. voluntariness and self-determination) can help to remind parties that they are in control of the ultimate decisions made and, accordingly, party participation is crucial to a successful process. 

Bandwidth disruptions and other technological glitches may be largely unavoidable, however can be managed by putting a contingency plan in place prior to the session (i.e. continuing the session via audio conference call; setting a backup continuance date/time; etc.). Plan with detail: If we lose connection, who will be re-initiating the call? How will the mediator be discounting time lost due to technology failures?

Facilitation of party communication through a screen may be more limited than in-person, but the limitations can be mitigated through the increased use of tools, like caucus (single sessions), for checking in with individual parties for feeling, engagement and comfort level. Online tools like “breakout rooms” provide an easy transition to caucus.

No matter the real or perceived limitations of online mediation, the benefits of an available consensual dispute resolution process in the current crisis far outweigh the challenges. Recognizing both the ‘good’ and the ‘bad’ allows parties to maximize advantages and plan for potential challenges, optimizing their potential for resolution. 

A Divorce Mediator’s “Divorce Don’ts” Guide (So You Can Do It Better): Divorce Don't #2

February 2, 2021
Sometimes a hateful marriage can lead to a love affair with your divorce. Yes, really. Although divorce is a sad and traumatic experience for most, it can also be the start of new journey of freedom, independence, and autonomy. For some, having been diminished and silenced in an unhappy and overbearing marriage, divorce is liberating and empowering. While there is absolutely nothing wrong with doing a little ‘good riddance to bad rubbish’ dance and enjoying a little tryst with your divorce, take heed not to make it a long-term commitment. Edith and Merwyn have been married for over 30 years. They have three grown children together. In the early years of their marriage, Merwyn worked long hours and had an almost singular focus on all things work-related. After their first child was born, Edith reduced her work hours to part-time to devote more time to their son’s care. By baby #3, it was clear that between Edith’s part-time work schedule and Merwyn’s ‘round the clock workstyle, they needed a little help. Edith interviewed 30 local nannies in the span of two weeks. None of them fit. Edith expanded her search scope and eventually found Ariel, a young 20-something living overseas, that Edith felt she could trust with her three young children. Edith hired an immigration attorney to help with the visa requirements and paid for Ariel’s flight and moving expenses. The children loved Ariel who proved to be a big help around the house as well. To help Ariel adjust to her new American life, Edith paid for English tutoring lessons and introduced Ariel to her friends and her younger generation extended family. Edith and Ariel became good friends and, eventually, it was as if Ariel was family. When Merwyn left Edith for Ariel a few days after their youngest child’s 18th birthday, Edith was completely blind-sighted. Heartbroken, humiliated and betrayed, Edith was determined that she would make Merwyn pay for all the pain he’s caused her. She retired early from her job, determined to devote all her time and energy to preparing her divorce battle. She directed her attorneys to leave no stone unturned. Merwyn remained unapologetic and narcissistic. Refusing to be relegated to a defensive position, Merwyn responded to Edith’s tactics with an equally aggressive and litigious offense. Ultimately, the case was concluded by a two week trial. It has now been five years since their divorce was finalized and there have been three post-judgment proceedings. Their youngest child is now in law school. He hasn’t spoken to Merwyn since Merwyn moved out of the family home. In the time since the separation, the other two children have gotten married. The weddings were uncomfortable and stressful affairs for both parties and their children. Merwyn and Edith are expecting their first grandchild in the Fall, the week before their latest post-judgment hearing for modification of spousal support. Did I forget to mention the outcome of the trial? Not really. The parties were saddled with more years’ of post-judgment litigation, bitterness and pain. When engaged in a particularly painful and potentially high conflict separation, it is helpful to develop a two-pronged goals perspective. From a micro perspective, focus on the interests underlying the issues of your divorce (i.e. custody, property, and support issues) and set your current goals in accordance with those interests. From a macro perspective, focus on future goals and big picture interests. For example, if your macro goal is to be able to be in the same room with your former spouse, without being overcome with anger, hurt, shame or guilt, tailor you actions and develop strat egies for achieving this. Curious about other Divorce Don’ts? Check out our upcoming blogpost for Divorce Don’t #3: Don’t Delegate Your Divorce”.

A Divorce Mediator’s “Divorce Don’ts” Guide 
(So You Can Do It Better): Divorce Don't #1

January 29, 2021
Divorce Don’t #1: Don’t Be a Rights Fighter. Don’t let your perception of what’s “right” and your “rights” overshadow and overtake your goals. Being overly principled and a “rights fighter” will fuel your energies in your divorce battle. But know that proclamations of right/wrong and good/bad inevitably invite offensive and defensive response tactics from the other side. War tactics come at great cost; some people can spend their entire divorce budget on one motion. The Stevenson family lives in an upscale Los Angeles suburb. The Stevensons have recently separated and have started discussing how to handle the logistics of their separation and modest finances (moving out, telling the kids, splitting the debt, selling the house, etc.). Recently, seven-year-old Julia has been exhibiting behavioral issues in class. Julia’s teacher reached out to her parents, Mary and Jonathan, to address Julia’s behaviors and consider different options for help. Mary and Jonathan cannot agree on which option to choose. Mary wants to try some non-interventionist options, like yoga and changes to diet; Jonathan wants to enlist the assistance of a therapist. Mary is vehemently opposed to mental health interventions. After hearing that Jonathan met with a therapist for a consultation without her, Mary calls a lawyer. After retaining the lawyer, Mary spends two hours in his office discussing the issue in detail. Mary instructs her lawyer to proceed with a motion seeking sole legal custody of Julia, or in the alternative, sole decision-making authority for all mental health-related decisions. Mary’s lawyer spends 3 hours preparing motion materials (in California, a family law motion is known as a Request for Order). Mary augments some facts in support of her request. After a further one-hour meeting, Mary’s lawyer revises the paperwork to add the new facts and apply them to her legal arguments (1.5 hours). She then sends it to the Court for filing and serves Jonathan with the motion. Mary’s lawyer has already spent 7.5 hours on her case, which at $500 per hour, calculates to a $3,750 legal bill. On receiving Mary’s motion, Jonathan is incensed. He spends days stewing in disbelief and rage over Mary’s narrative, which he thinks relegates his fatherly role to nothing more than chauffeur and short-order cook. Jonathan calls three divorced dads he knows for advice. He’s referred to a lawyer his friends think is a real ‘shark’. Jonathan meets with the lawyer, who prepares a response and, after a few drafts, files and serves the Response on Mary’s lawyer, who prepares and serves a “Reply.” Jonathan’s fees to this point are $6,000 and Mary’s fees, inclusive of the Reply, now total $6,500. In other words, together, Mary and Jonathan have already cumulatively spent $12,500. They are still 6 weeks away from their hearing date. By the date of the hearing, Mary and Jonathan have each spent another $2,000, on telephone calls to their respective lawyers and the lawyers’ telephone calls to one another trying to negotiate an out of court settlement, bringing their total combined legal fees to $16,500 . Tensions in the home have gotten pretty bad and Mary and Jonathan can no longer stand to be in the other’s presence. Julia’s behaviors have gotten worse and her grades have suffered. She has also taken to biting her nails and the skin on her fingertips. Julia has also been experiencing nightly nightmares. Mary now sleeps with Julia at night in effort to help calm her. Jonathan thinks this is hindering Julia’s ability to self-regulate and exacerbating her anxieties. He asks his lawyer to prepare a supplemental declaration to inform the judge of these new facts and developments. Mary, of course, prepares her own responding supplemental declaration. The current total combined legal fees are now $19,000. On the date of the hearing, the motion is continued to a new date. The new current total combined legal fees are $21,000. The case is eventually heard on the new motion date at 11:30 a.m. and is argued in the span of 30 minutes. The judge takes the matter upon submission and reserves her decision. The combined total legal fees are now $25,000 and, by the time they receive the judge’s decision two weeks later, it is over $27,000. Julia’s behaviors have continued to escalate. Her nail biting has caused a finger fungus for which she is now being medicated. Jonathan has moved out and has recently motioned the court for an order for the immediate sale of the family residence. If, after reading the above vignette, you find yourself wondering, “Who won?” instead of “Does anyone really win?”, you may be a rights fighter and you may be at risk of dragging out the length and increasing the cost and conflict of your divorce (without even trying). You will recall from the start of this vignette that Mary and Jonathan have modest assets and current debt. They also have a child who has evidenced some new troubling patterns that need to be addressed. When the issue with Julia arose, Mary and Jonathan had different opinions about how to best address it, but they shared a common interest. Mary and Jonathan wanted to help their daughter. By focusing on this mutual goal, Mary and Jonathan could have had a dialogue and brainstormed all options together. While it is unlikely that either would have convinced the other that his/her opinion was right, they would have at least had the opportunity to properly consider all options, including the option they both ultimately chose – a costly and lengthy court battle. The risks of the ultimately chosen path included enormous family financial cost, which resulted in decreased family resources. It also delayed Julia receiving any help at all for some time, which exacerbated the problem. Curious about other Divorce Don’ts? Check out our upcoming post for Divorce Don’t #2: “Don’t Get Married… To Your Divorce"

This Court IS NOT in Session: 
How To Deal with Your Family Law Proceedings In the Wake of LA Court Closures

By Jennifer Winestone • March 20, 2020
The Superior Court of the State of California for the County of Los Angeles has issued an emergency order that provides for the closing of all Los Angeles courts for judicial business, except for a specific and limited list of time-sensitive and essential functions. For family law proceedings, the limited exceptions include family temporary restraining orders, ex parte proceedings, contempt proceedings where custody is at issue, and Hague convention matters (international kidnapping). The order, while no doubt necessary to its purpose of protecting the health and safety of the public and court personnel during the pandemic, leaves family law litigants without access to judicial relief on important matters during a time of crisis and arising changes of circumstance. In the wake of this pandemic disaster, we have been challenged to balance work-from-home schedules, homeschool of our children, health scares and quarantines, mass layoffs, social distancing and isolation, while keeping our wits about us despite the angst of our health and financial uncertainties. The court closures are yet another challenge requiring new strategies for achieving relief and remedy. Lawyers and litigants will have to rely more heavily on direct negotiation tools, mediation and collaborative processes. Consensual dispute resolution processes, in the best of times, have been alternative options to traditional litigation; now, they are, in most circumstances, the only avenue to expedient relief. Here are some things YOU can do to get your litigated matter on new track to resolution: Prioritize. Triage the most pressing issues that must be addressed quickly – a recent layoff or sudden reduction of income; new custody parameters due to quarantine and/or school closures, a health crisis resulting in increased need, etc. Plan. Contact your attorney and, together, devise a best course of action for dealing with the priority issues. Be mindful of new obstacles, like opposing counsel and opposing party’s potential schedule changes, health issues, and increased work demands in the current climate. Know your BATNA. BATNA stands for “Best Alternative to a Negotiated Agreement”. Strategize negotiation proposals with consideration of your realistic and current BATNA. For pressing matters – those that can’t or don’t want to wait - it is very likely the BATNA has changed. An “I’ll see you in Court” approach simply won’t work. Focus on your interests instead of your ‘rights’ and consider your WATNA too (Worst Alternative to a Negotiated Resolution). Consider your options. There are many process options other than court. Educate yourself on the different options available (mediation, arbitration, collaborative family law, negotiation), as well as their benefits, disadvantages and differences. Arbitration, a process most similar to traditional litigation in that a third party adjudicator makes the ultimate decision, can offer flexibility in terms of scheduling and procedure (videoconferencing may be available if the arbitrator and all parties agree), however it is likely also the most expensive option with parties footing the bill for their attorneys and the arbitrator’s fees. Collaborative family law, a process in which parties, both represented by their own collaborative attorneys whose mandate is to represent their client’s individual interests and also help them reach settlement, agree (in writing) to keep things out of court. It provides the benefit of attorney representation and guidance, but risks the case having to start from scratch with new counsel (that’s the deal), if the matter falls out of the process. Mediation is a facilitated negotiation. Parties can have their own representing or consulting attorneys or proceed without legal counsel at all. The wide flexibility of mediation can be a blessing and a curse, and much depends on the style, experience, skillset and mindset of the mediator. Direct negotiation, with lawyers or without, provides the advantage of not having to add people or proceeding. However, in many cases, due to the level of conflict, the complexity of the issues at hand, and/or personality difficulties, reaching ultimate resolution, without assistance, may be unlikely. Act. And, act responsibly . Life won’t wait for the pandemic crisis to end – and, from what we are being told, it is going to take some time before our old way of life – or something like it - resumes. Accept that we are living in a new normal for now and take action to move forward within the new paradigm. All dispute resolution processes require some form of agreement, including which process to use. If you have been laid off and can no longer comply with your support obligation, simply ignoring the responsibility and defaulting will send the other side a message of disrespect and bad faith, making later agreements more difficult to reach. If you are under self-quarantine (or should be) and require accommodation to your custody schedule, be honest about it; your co-parent will be more likely to agree to makeup time or other accommodation, if he/she feels you have been truthful and child-centered. The courts will ultimately re-open, but they will do so to a backed-up docket of cases to hear and judgments to process. There may be increased proceedings where parties are representing themselves, due to new economic circumstances and inability to afford counsel, forced to navigate complicated procedures on their own, resulting in increased continuances and longer wait times for hearings. Manage your expectations for what things will be like when they return to “normal” again and continue to engage positive strategies for dealing with your dispute in the meantime. Stay healthy, stay safe and try to stay calm. We are all in this together.
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