Emerging from COVID-19 – How Virtual ADR Survived and Changed the Way Mediation in Matrimonial Matters is Conducted

Emerging from COVID-19 – How Virtual ADR Survived and Changed the Way Mediation in Matrimonial Matters is Conducted

Alternative Dispute Resolution

Within matrimonial cases lie many disputes that need to be resolved, such as child custody, child support, alimony, and division of assets.  When dealing with such important and personal matters, litigation is not always the best option for resolving disputes.  It is often time-consuming, rigid, and expensive.  It is therefore wise to look into other ways to come to a more efficient resolution.

Alternative Dispute Resolution (ADR) offers ways of resolving disputes outside of the traditional courtroom, including collaborative divorce, mediation, and arbitration. Collaborative divorce is a process in which both parties and their respective lawyers commit to resolving their issues fairly and equitably, in a cooperative rather than adversarial style. Parties pledge that they will not resort to the court system. The process is speedy, protects the privacy of the parties, and seeks to find the best solution for all through creative problem solving. However, this process requires willingness to collaborate from all parties involved.  One drawback to collaborative law is that a party needs to agree to discharge their attorney if the process fails and litigation ensues.  This can be difficult if the party is happy with their representative, and expensive if they have to hire a litigator to reinvent the wheel, so to speak.

Mediation also requires willingness to communicate and compromise from all parties. In mediation, parties must work together with the guidance of a mediator who supervises the negotiations but does not order a result. The mediation process is completely confidential and can result in flexible and customized solutions.   Most mediators will recommend that each party hire an attorney to review the mediated agreement to ensure that their best interests are being met. When parties avail themselves of this option, in some cases, the individual lawyers thwart the mediation and the case proceeds to litigation.  Parties need to remember that the individual attorney work for them and not the other way around.  If the spirit of cooperation exists, they will reach a consensus.  

Arbitration is the most formal of the types of ADR, with an independent arbitrator, chosen by the parties to oversee the process.   The parties work with individual counsel to present witnesses, documents, and arguments. The arbitrator serves as a quasi-judicial figure, applies the law to the facts and renders a decision. Arbitrations are still less formal than litigation, allowing for flexibility in scheduling and a speedier result.

Of the three, mediation tends to be the most common in matrimonial disputes.

Typically, ADR is done in-person. However, in light of the COVID-19 pandemic, any norms that we have become accustomed to have been challenged. With courts shutting down and limiting their functions, attorneys have had to figure out the best ways to move their cases along. Even as the courts reopen, safety and distancing requirements are still in place, case backlogs exist, and matters must be prioritized. ADR is as appealing as ever during these uncertain times, as it eliminates the litigation process and provides more flexibility. Thankfully, technology has come in handy for many as platforms like Zoom, WebEx Meetings, and Skype have changed the game. Virtual conferencing and appearances have been utilized in legal proceedings before, such as when a client cannot attend a hearing. This is not a new phenomenon but perhaps may be becoming the new normal.

Virtual ADR is conducted through programs that are easily accessible – via phone, tablet, laptop, or desktop, making these processes readily available for attorneys and clients looking to move their cases forward. The portability of many of these devices also allows for spouses, even those confined to the same home, to physically separate – perhaps to an office or even to their car – to engage in these virtual proceedings in a private manner. Also, many programs have data encryption to provide secure and private environments to mediate and resolve disputes. These programs allow participants to engage in group settings and also private break-out sessions where individual parties can discuss privately with their own attorneys or with the attending mediator or arbitrator. Documents can also be shared electronically and even signed electronically should an agreement be reached. The ability to meet virtually, discuss the case, exchange relevant documents, and even sign agreements has allowed divorce attorneys to advance their client’s cases even during a pandemic.

Technology is ever-changing and constantly advancing the way we operate. Attorneys, judges, mediators, clients, and the like have realized the freedom and flexibility technology can offer when it comes to ADR. Matrimonial disputes involve many aspects of a couple’s private matters, and mediation offers a more private way to work through those disputes. The ability to conduct these mediations remotely has allowed for attorneys and clients to advance their interests and resolve disputes so that they may continue on with their lives, despite the ongoing pandemic. Following the success of many virtual mediations in matrimonial disputes, it is likely that this platform will continue even beyond the isolation of the pandemic.

In the firm of Fass & Greenberg, LLP., both partners, Florence M. Fass & Elena L. Greenberg, in addition to being trained litigators, are trained in mediation and collaborative law.   We are equipped to assist potential clients resolve their differences outside of the courtroom, whether in person, or virtually, depending upon the needs or the circumstances. 

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