Family Law in the Time of COVID-19: What to Expect During Online Mediation
This article expands upon an earlier one discussing mediation, online mediation, and technology do’s and don’ts, which you can read here.
So, what should you expect during online mediation?
Video Conferencing Software
ODR or virtual mediation takes place using video conferencing software (such as Zoom, Microsoft Teams, etc.). This means that participation occurs over video (or, over a telephone if video is unavailable) and participants can see and hear one another.
Tip: Ask your mediator in advance what software he or she uses and watch a tutorial on YouTube or the software’s website. Familiarizing yourself with the software in advance will alleviate some of the stress, so you can focus on the issues you are there to mediate.
The software used usually allows the mediator to create “rooms”, so video screens showing all or some of the participants. When in a room, participants should be able to see and hear everyone else in the same room. When in separate rooms, participants can only see and hear participants assigned to their room, not anyone in other rooms. The mediator can move between rooms.
These rooms are generally used for different combinations of participants:
· everyone in the same room; and/or
· just one party (and their attorney, if participating) together with the mediator in the same room (called caucus or breakout), while the other party (and their attorney, if participating) wait together in a separate room; and/or
· just the attorneys and the mediator in the same room, while the parties wait in their own separate rooms.
The different room configurations allow a mediator to communicate with everyone together or with each party (and party’s attorney, if attending) separately. Sometimes separate rooms (or caucuses) are needed to help move settlement discussions along because they are opportunities to say things that you may not want to say to the other participant and to break out when communication in joint session becomes unproductive.
Tip: A mediator may caucus with one party for more time than the other. This happens. Usually because one party needs more time to share or process information or form a settlement response. Be prepared for unequal division of time and wait time.
Chat & Communication Features
When the mediator is in another room, you may need his or her attention. The software may have features to reach the mediator such as:
· Raising your hand
· Asking for help
Tip: If the software offers none of these or you are unsure how to use them, ask the mediator for a direct dial phone number to call if all else fails.
Likewise, if in joint session and you want to talk only with your attorney, ask for a break or timeout. You may also be able to send a chat message to only your attorney.
If documents are important for settlement, know what documents you need and develop a plan with the mediator (and your attorney if you have one) before your session.
This may involve sharing documents in advance or during the session (such as with screen sharing).
Sharing documents calls for decisions about which documents go to whom, when, and how. For example, some documents may be confidential and only intended for the mediator, while others may be needed by all.
Don’t let the what, when, and how of document sharing derail your mediation. Plan in advance.
Tip: If you’re unfamiliar with the video conferencing software, don’t try to screen share documents using unfamiliar software. Especially if the documents contain sensitive information. Instead, develop a plan for sharing documents securely and in advance using familiar tools and software.
Respect & Professionalism
During online mediation, make it your focus. Distractions and multitasking show lack of respect for the mediator, participants, and the process. And, detract from active listening and critical and creative thinking, which are essential to successful mediation outcomes.
Online mediation means you are on video. Be aware of your demeanor, facial expressions, and camera positioning. Also, some mediators do not allow participants to opt out of video or go off screen (which bring into question confidentiality and may result in termination of the session).
If participating from a place with background noise, use headphones and a microphone.
And as with in person mediation, talking over other participants does not help get your point across. Quite the opposite.
Tip: Model the behaviors you want reciprocated.
Online mediation is here to stay. With its many conveniences, advanced planning will help you make the most of it and set yourself up for mediation success.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.