As I mentioned in my last blog post outlining a few tips for videoconferencing, a discussion of the decision-making process as to whether to participate in mediation or conciliation via videoconference could be its own blog post. So, here it is!
On July 13, 2020, Massachusetts state courthouses physically reopened to the public for limited purposes, including some in-person proceedings. However, most hearings continue to be conducted by telephone or videoconference, often scheduled half an hour apart from other cases. The result of the Court’s closure in mid-March due to COVID-19 and only gradual reopening since then is that the Court system is struggling to play catch up on matters that were not able to be heard during the Court closure, plus keep up with the continual new filings. Parties are facing significant delays in getting their “day in court,” which is requiring parties and their counsel to think outside of the box and come up with creative solutions to address the ongoing needs of divorcing parties and their families. One of these solutions may be to participate in mediation or conciliation via video conference. While there is a difference between these two forms of alternative dispute resolution, for purposes of this post I will refer to both mediation and conciliation collectively as “mediation.” The greatest benefit to participating in virtual mediation is that divorcing parties may be able to resolve their divorce case quickly and avoid waiting for the Court to schedule their matter for a hearing. This can all be done without even setting foot in a courthouse or other public space where there are increased risks of the spread of COVID-19.
Here are some points to consider when deciding whether or not to participate in mediation via videoconference:
- Format – While the goal and concept of mediation are the same for all cases (a neutral party assisting the divorcing parties in reaching their own agreement), the format each mediator uses for their sessions varies greatly. This is particularly the case with virtual mediation. Some mediators may schedule one session, where everyone dials into the videoconference at one time. The mediator then provides the ability to conduct “breakout” rooms for privileged settlement discussions between the parties and their lawyers and to allow the mediator to conduct shuttle diplomacy, going back and forth between the two sides. This format most closely follows a typical in-person mediation session but requires the mediator to be technologically savvy. Other mediators may schedule serial sessions – often speaking with counsel first to obtain pertinent background of the case, then scheduling one session with one party and their attorney, and a separate later session with the other party and their attorney. The mediator then schedules additional sessions with each side, or with everyone all together, as needed. While there are certainly benefits of conducting mediation in this style, if the mediator, attorneys, or parties, have busy schedules, scheduling a quick succession of sessions may be difficult, which could cause resolution to be delayed.
When deciding whether or not to participate in virtual mediation, it is important to learn from the mediator how he/she conducts his/her sessions to determine the best fit for the parties and the overall case.
- Potential cost savings – A divorcing party’s pocket, and the environment, will likely feel the impact of not requiring their attorney to travel to a mediation session. Attorneys won’t be billing for their commute time. There will also be less time wasted sitting around at the mediator’s office waiting for someone to show up, or for a party to speak with their attorney before the mediation session starts. With virtual mediation, everyone is forced to do their homework in advance of the session and to dial in precisely at the scheduled time. The cost savings for serial sessions may also be great, as the party who is not engaged with the mediator for a session does not need to pay their attorney to sit with them while the mediator speaks with the other party, as they would otherwise in a typical in-person mediation session.
- Psychological impact – While my undergraduate degree is in psychology, I certainly do not proclaim to be an expert by any means on the psychological impact of in-person versus virtual mediation sessions. However, there is something to be said about the level of motivation to get a case settled that comes with everyone being face-to-face (not on a computer screen). Everyone is forced to leave their office or home, travel to be at a mediator’s office, pay their attorney (and often the mediator) to be there, and sit all together, often in one room, at one time. Whether it’s the feeling of being uncomfortable being in the same room and just wanting to get the case settled so a party can leave, or the motivation that comes from having a mutual goal of resolving an often long-overdue dispute, the like-mindedness that results may be lost when mediation sessions are being conducted virtually.
- Privacy concerns – With any online or virtual activity, there will always be privacy risks associated. There have been many articles and investigations about hackers gaining access to videoconference meetings, and each virtual host (Zoom, GoToMeeting, etc.) has done what they can to secure their meetings by enabling meeting ID’s and passwords. Setting aside the unknown hackers, there have also been concerns raised that the “breakout” room provided by the mediator through the videoconferencing application may not be completely secure, which may expose privileged attorney-client communication. One way to combat that concern is to consider not having privileged attorney-client communication occur in the “breakout” room. Rather, a party and their attorney in a “breakout” room can mute themselves from the videoconference and then speak by a separate phone call or text message.
The decision of whether to participate in virtual mediation should be discussed in-depth with counsel, as the facts of each divorce matter are unique, and videoconferencing may not always be the best option. However, as the backlog in the court system will likely continue well after social distancing guidelines are lifted, it is likely that we will see more and more divorcing parties elect to take matters into their own hands and schedule virtual mediation sessions.
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