Mediation and other alternative methods have always been marketed as more flexible, and equally (if not more) successful modes of dispute resolution. These days, in light of the social-distancing and other policies being enforced to combat the spread of the coronavirus (COVID-19) pandemic, mediation has gained traction as a working solution to the inaccessibility of family court.

This is not so surprising since mediation and these other alternative methods have been the preferred escape route from the rigors of family law and medical malpracticelitigation for some time now. In many countries, the doors to court are currently shut to non-essential and avoidable hearings. Unfortunately, that includes family law and medical malpractice cases. Hence, thepopularity of mediation and other ADR. But, even at the moment, mediation is not physically possible and new ways are being devised to use these methods to cater to lingering case traffic.

The effect is that courts and concerned parties are now leveraging the internet and conducting hearings online via web conferencing. These measures are already in wide use and have been well received. However, mediating online brings to light its own set of challenges. Older disputes, for instance, which have already been in court typically find it harder or impossible to make the transition.

But one cannot expect things to be the same as normal and there are, assuredly, opportunities, and challenges going forward.

Leveragingweb conferencing technologies
Web conferencing and other digital technologies are currently the best workable solutions to resolving disputes. Numerous platforms currently exist to cater to digital conferencing needs, and several of them are easy-to-use and do not require any tech-savvy. Generally, these platforms are available as apps and can be accessed on ubiquitous gadgets like laptops and smartphones. They are generally cloud-based and allow for easy collaboration and user control.

Thanks to simple, stable, and scalable interactive software, the Zoom app is the preferred platform for attorneys, and probably everyone else. Parties to mediation will need to purchase a package that will allow interaction with video, audio, and text for as long as it is needed and with as many participants as possible. There is a free version which, despite restrictions, allows people to interact for a respectable amount of time -usually 40 minutes. Thanks to new security upgrades, sessions can now be secured with passwords, and users also do not have to worry anymore about intruders.

Mediators also find extensive use for the Zoom app’s practical features. Parties to in-person mediations do not have to be in the same room, building, or street block to interact; something that helps alleviate tension. The app also has other sleek features; mediators can put parties in different cyber rooms and spare them the faces of opposing counsel and other parties. Mediators can also create even more rooms to interact with either or both of the attorneys. These rooms can also be secured with passkeys, so confidence is kept and parties cannot spy on each other’s rooms.

Mediators can cut off the audio when proceedings get too heated. Users can also do the same to their connection via a toolbar at the bottom of the screen. The chat feature also allows secure text messages from the mediator to one party (and vice versa) while being invisible to the other party. Users can also seekassistance from the mediator via the text feature through a help button.

Written agreements, which are a hallmark of mediation, are still possible with the Zoom app. Once the agreements reached are memorialized in a written document, parties can append their signatures with the use of programs like DocuSign, Adobe, and Clio. The programs should naturally be encrypted for security reasons. Documents, before they are signed, can be reviewed by the parties in concert with their attorneys in the different chat rooms. They can then be shared via e-mail or a screen sharing option.

In place of electronic signatures, parties can be placed on record. With the mediator recording their respective recitations of the terms agreed to. This makes it easier to then draft a formal documentthat can be emailed for review and signature.

The challenges remain
The cost of mediation can be herculean for parties with lower income and paying an attorney and mediator at the same time is often a luxury they cannot afford. Beyond free local mediations by volunteer attorneys, and until courts resume functions at a regular pace, there may be no alternative. Hopefully, dispute resolution centers will take a lesson from the current playbook and start scheduling Zoom or in-person mediations.

For some specific cases, Zoom and other web conferencing platforms may not eliminate all the risks. A victim of domestic violence in the same house with the abuser will be in danger without an attorney physically present. But this is also easily overcome when they are separated and mediate from different locations like in a car or at the neighbors. In any case, mediators will need to properly assess the situation before determining the parameters of a meeting. Otherwise, parties can choose to wait until the proper arrangements can be made when the shelter-in-place orders are lifted.

In conclusion
Despite the great promise of Zoom and other web conferencing platforms in mediation, their use should depend on the merits of each case and the premium placed by the parties on finalizing the process. Some cases require the human element or presence of parties/mediator themselves to be any good. And there is also the seriousness factor if participants can reconcile the gravity of proceedings.

These platforms are here though and are likely to remain long after this crisis. Family mediation has been digitizing for a long time now and has frankly become easier than ever before. The question should not be whether these technologies are viable alternatives; because it is simply obvious, givencurrentcircumstances that they are.

Steven Garver
https://divorcemediationassociatesva.com/