Resolving a Divorce through Virtual Mediation

Although there are many days that one might feel the COVID situation is never going to go away; life must go on.  The result of the Court’s closure in mid-March due to COVID-19 and only gradual reopening since then is that the Court system is struggling to play catch up on matters that were not able to be heard during the Court closure, plus keep up with the continual new filings.

Parties “Day in Court” are facing significant delays and their counsel is having to think outside of the box and come up with creative solutions to address the ongoing needs of divorcing parties and their families. One of these solutions may be to participate in mediation or conciliation via video conference and by participating in virtual mediation; divorcing parties may be able to resolve their divorce case quickly avoiding the wait for the Court to schedule their matter for a hearing.  This can all be done without even setting foot in a courthouse or other public space where there are increased risks of the spread of COVID-19.

While the goal and concept of mediation are the same for all cases (a neutral party assisting the divorcing parties in reaching their own agreement), the format each mediator uses for their sessions varies greatly. This is particularly the case with virtual mediation. Some mediators may schedule one session, where everyone dials into the videoconference at one time. The mediator then provides the ability to conduct “breakout” rooms for privileged settlement discussions between the parties and their lawyers and to allow the mediator to conduct shuttle diplomacy, going back and forth between the two sides. This format most closely follows a typical in-person mediation session but requires the mediator to be technologically savvy. Other mediators may schedule serial sessions – often speaking with counsel first to obtain pertinent background of the case, then scheduling one session with one party and their attorney, and a separate later session with the other party and their attorney. The mediator then schedules additional sessions with each side, or with everyone all together, as needed. While there are certainly benefits of conducting mediation in this style, if the mediator, attorneys, or parties, have busy schedules, scheduling a quick succession of sessions may be difficult, which could cause resolution to be delayed.

A divorcing party’s pocket, and the environment, will likely feel the impact of not requiring their attorney to travel to a mediation session. Attorneys won’t be billing for their commute time. There will also be less time wasted sitting around at the mediator’s office waiting for someone to show up, or for a party to speak with their attorney before the mediation session starts. With virtual mediation, everyone is forced to do their homework in advance of the session and to dial in precisely at the scheduled time. The cost savings for serial sessions may also be great, as the party who is not engaged with the mediator for a session does not need to pay their attorney to sit with them while the mediator speaks with the other party, as they would otherwise in a typical in-person mediation session.

There is something to be said about the level of motivation to get a case settled that comes with everyone being face-to-face (not on a computer screen). Everyone is forced to leave their office or home, travel to be at a mediator’s office, pay their attorney (and often the mediator) to be there, and sit all together, often in one room, at one time. Whether it’s the feeling of being uncomfortable being in the same room and just wanting to get the case settled so a party can leave, or the motivation that comes from having a mutual goal of resolving an often long-overdue dispute, the like-mindedness that results may be lost when mediation sessions are being conducted virtually.

With any online or virtual activity, there will always be privacy risks associated. There have been many articles and investigations about hackers gaining access to videoconference meetings, and each virtual host (Zoom, GoToMeeting, etc.) has done what they can to secure their meetings by enabling meeting ID’s and passwords. Setting aside the unknown hackers, there have also been concerns raised that the “breakout” room provided by the mediator through the videoconferencing application may not be completely secure, which may expose privileged attorney-client communication. One way to combat that concern is to consider not having privileged attorney-client communication occur in the “breakout” room. Rather, a party and their attorney in a “breakout” room can mute themselves from the videoconference and then speak by a separate phone call or text message.

As the backlog in the court system will likely continue well after social distancing guidelines are lifted, it is likely that we will see more and more divorcing parties elect to take matters into their own hands and schedule virtual mediation sessions.  The decision of whether to participate in virtual mediation should be discussed in-depth with counsel, as the facts of each divorce matter are unique, and videoconferencing may not always be the best option.  Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.