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Mediation at a (Social) Distance

Finding Common Ground: Mediation in the Age of Social Distancing

Mediation is a popular and growing part of the legal landscape, especially among those who value creative decision-making and cooperation. In the age of COVID-19, though, mediation has faced a challenge. In an industry that strives to get all the parties in the same room, determining how to respect social distancing regulations has led to some key changes in the mediation process.

The Key Elements of Mediation

Mediation has become a staple of family courts over the years, and mediation is required in several states for both child custody disputes, as well as dealing with the economics in a case. Mediation has become common enough that any good family law attorney will understand how it is used, and most divorce attorneys will look to it as a potential option for their clients.

If you ask an experienced family lawyer how mediation works, he or she will likely bring up a host of key points. Knowledgeable attorneys talk about the importance of communication in these sessions as well as the ability of the parties to settle their disputes without having to deal with the often-expensive process of going to court. Most lawyers will also point out that the key element of mediation is cooperation. If the two parties are unable to work with one another, mediation becomes difficult.

When it comes to mediation from a distance, it’s not necessarily the form of the sessions that matters, but rather, keeping the spirit of the discussion alive. When individuals attempt to mediate in a time when it is not feasible to bring people into close contact, these concepts — cooperation, communication and decision-making — become paramount for the mediation process to preserve its value to participants.

Understanding Time Frames

It should come as no surprise that one of the biggest adaptations being made in the field of mediation has to do with timing. Simply put, there are only so many certified mediators, and the risks associated with travel have become significant enough that resources are being stretched further than ever. As such, it has become common for the timetables for mediation, including those sessions mandated by the court, to be lengthened dramatically as more cases are added to the docket.

As with many other legal proceedings, in-person mediation has become something of a risk management problem. Not withstanding the fact that traditional mediation requires bringing the parties and their lawyers into the same room but also that a mediator must move between several such groups during the course of the process. Having to adapt to a different approach may mean that it takes more time to accomplish the goals of mediation.

It must be noted that the slowdown of sessions is not always negative for a trained family lawyer. A good custody or divorce lawyer can use the time between deciding on mediation and the availability of the mediator to better prepare his or her clients on how the process works and what to expect. Whatever speed the process does move, the field is adapting to the pandemic by moving forward safely.

Utilizing Technology

While in person mediation may be a challenge now, videoconferencing has provided an incredible resource. As with many other fields, mediation is leveraging technology in new ways. At Lawrence Law we saw this technology as an opportunity to continue helping clients by using video conference capability from day one of the pandemic.

With this technology we can have various “breakout rooms” where each party is placed in their own virtual room. The mediator can go between rooms efficiently, effectively and with significant progress being made.

Reliance on Trained Mediators

Given the technological and scheduling challenges that distanced mediation requires, one of the biggest changes relates to how professional mediators handle their work. No matter how much technology has improved, nothing is quite the same as being in the same room as the involved parties. Mediators are now seeking ways to preserve the experience under these difficult circumstances.

While a mediator should always be a neutral party to the resolution of the dispute, he or she does play an important role in facilitating communication between all the parties. A great deal of what a good mediator does involves reading the nonverbal cues of the various parties to learn when to step in, when to redirect or when to let things proceed without intervention. It’s no surprise that mediating in this manner is more challenging when all the parties are in separate locations and speaking through a computer screen.

Mediators are learning to adapt by mastering how to read the parties’ nonverbal cues that they reveal when using technology. Mediators will encourage parties who leave themselves muted for long stretches of time to turn their microphones back on, for example, or note when someone seems to be distracted by things outside of the mediation call. Every mediator handling these meetings is now responsible for learning a host of new cues in order to effectively bridge the communication gaps in each session.

Navigating Socially Distanced Mediation

Navigating the changes brought on by mediation won’t be easy, but it may lead to improvements in the field. Mediators are learning new ways to facilitate communication and all the professionals who are impacted are becoming more familiar with a host of useful new technologies. Ultimately, both mediators and attorneys will end up learning the skills they need to help their clients successfully mediate their disputes whether they occur in person or must take place at a distance.

If you know that you’re going to utilize the mediation process, working with a divorce lawyer who is already familiar with both the traditional and distanced formats will help you feel more comfortable with the process in either case. Whether you are dealing with court-ordered mediation or you have chosen the process yourself, you deserve skilled representation. Jeralyn Lawrence and Rita Aquilio are trained mediators and are ready to assist those in need. To get the most from mediation, make sure to contact Lawrence Law: email info@lawlawfirm.com or call 908-645-1000.

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