How I became a fan of Virtual Mediation
Mediation is a way to resolve family law disputes where a neutral third party, the mediator, assists parties in trying to reach an agreement. The mediator does not advocate for either party or make any decisions. The decision-making authority is left to the parties. The mediator’s job is to help parties work out their own agreements by exploring the parties’ needs and interests and by helping them formulate specific solutions to resolve the disputed issues. That is one of the most attractive reasons for mediation — the parties maintain control of the process. This doesn’t mean that each party won’t have to make concessions, but if the parties do reach an agreement, it will be their own settlement, rather than a decision imposed upon them by a judge. Going to court can be very expensive, time consuming (taking sometime years to resolve), and the ultimate outcome completely unpredictable.
In a nutshell, Mediation is a powerful tool in a family law case.
Before COVID, family law mediations were conducted the following way. Each party and his/her lawyer would travel to the mediator’s office, where each side would be put into his/her own conference room. The mediator would go back and forth between the two conference rooms sharing offers, meeting sometimes two to three hours with each side to help craft a settlement. While the mediator was in one party’s room, the other party and his/her lawyer would be analyzing issues in the case, preparing to address the other side’s next offer, and once that was done…….waiting. Mediation is a process, and it can take a long time. Most mediations will last all day and sometimes into the evening before a settlement on all issues can be reached. Besides bathroom breaks or maybe a break to just take a walk outside, each party is in the same conference room all day long with his/her attorney. While I have found mediators to be great hosts who provide snacks and lunch, the process itself can be grueling for parties….and their lawyers. However, it’s one grueling day that can result in the entire case being resolved, so it is well worth it.
Fast forward to the Coronavirus—a global pandemic. How do we mediate now? The North Carolina Dispute Resolution Commission now requires that all court-ordered mediations be conducted remotely via electronic means.[1] Most mediations are conducted by Zoom or Webex technology. So, how does remote mediation work?
The mediator sets up the virtual mediation, providing each participant with the credentials to access the virtual mediation. The mediator puts each party and his/her attorney in their own “virtual room”, so that the parties aren’t in the same room. The mediation process works the same as if in person, with the mediator transmitting the offers by email or other electronic means rather than delivering those by hand to each room. If a settlement is reached, the parties can utilize a virtual notary to acknowledge their signatures or make other arrangements for signing in the physical presence of a notary either at the mediator’s office or at their attorney’s office, depending on the facts and circumstances of their particular situation.
So, why do I love Virtual Mediation?
- Clients are more relaxed. Rather than being in a mediator’s office with their soon-to-be ex-spouse across the hall, they are in the comfortable surroundings of their own home. The mediator is in his/her office/home; the lawyers are in their offices/homes; and the clients are in their homes. I have found that clients are more focused on the issues, more open-minded, and less stressed about the whole process. Moreover, when the mediator is in the other side’s “room”, your client is free to go make a sandwich, get a cup of coffee, relax in his/her own space. You don’t have that same “comfortable level” in the traditional mediation setting.
- Clients save money. Mediation is a process. Depending on the issues and the personalities involved, often the mediator is in a party’s “room” for well over an hour or more. (I had one where the mediator was gone almost four hours in the other room). When the mediator is with the other side, unless you and your lawyer are analyzing issues, preparing a proposed response, etc., you may have some “down time” where you are just waiting for the mediator to come back with an offer. Rather than just sitting with your lawyer in the mediator’s office paying the lawyer’s hourly rate, you and your lawyer can “leave” the virtual room. The client can unwind or do other things (like work) until the mediator comes back, and the lawyer can also be working on other client matters. This saves your client money. So far, I have had cases where the client saved several hundred dollars from my “going off their clock” when the mediator was in the other party’s room. Family law cases are expensive, and every bit of savings counts.
- Virtual Mediations “may” be shorter than those conducted the traditional way. There are no statistics on this. I haven’t had a 1,000 virtual mediations; I have had seven. From those, I have found that because we were online staring at a screen, we had to be more focused and ultimately used less time to address issues. Nothing scientific about this; just my impression.
Mediation is a power tool in resolving family law disputes. While COVID has created a lot of obstacles for families, I think that virtual mediation has yielded some positive results.
[1] With the agreement of all parties, and ability to comply with safety guidelines the parties may conduct the mediation in person. The parties may also seek an order from the court to conduct the mediation in person. Any mediation conducted in person shall be done in strict compliance with all executive orders and social distancing requirements. All parties to the mediation shall use appropriate social distancing practices and safety procedures.
