Test Negative & Stay Positive! Checking in on the Influence a Global Pandemic has on Divorce Mediation and the Mediators Themselves

Almost two years has passed since we wrote our first blog post about the havoc COVID-19 was causing in parenting plans (Co-Parenting in a Crisis: COVID-19 and Beyond).  Little did we know how long this crisis would persist and all the things that it would change.  We continue to contemplate how long we’ll wear masks in public and whether we’ll ever shake hands regularly again, and yet life goes on.  People get married and divorced, and they still need help figuring out how to navigate family conflict.  

As we continue to help people with these major life decisions, we’ve noticed some of the potentially long-lasting effects of the pandemic.  Below is a list of what we’ve seen change about our practice, and we’re interested to see the comments and if your experience has been similar or different:

Video Killed the In-Person Star

I spent my childhood (and 20s and 30s) wondering when we would regularly use video screens to communicate like they did in every science fiction show.  While we had the capability to Skype and Facetime long before the COVID-19 pandemic, it really hadn’t become commonplace until a large enough portion of the population was forced to figure it out to continue working and socializing safely.  

Even the Probate & Family Court in Massachusetts began holding hearings by video, something we were always told couldn’t be done.  While there remain challenges, especially with the large population the court still serves, some of us are wondering why would we ever go back to in-person for certain transactions.  For example, in Massachusetts there is the option for filing a Joint Petition for Divorce, which is intended to streamline the process for couples who have reached a full agreement.  While the statute still requires a hearing to approve the divorce, there is no reason these hearings have to be in person and scheduling these hearings virtually saves parties money and time, especially if they are paying counsel to attend.  Even if many other hearings go back to in person, the court should strongly consider encouraging parties to reach agreement by rewarding them with this simpler, cheaper option for finalizing their divorce.

There is a lot lost by moving a mediation online (reading body language, forming personal connections, eye contact, etc.), which is why the majority of the mediation community resisted online work for so long.  Despite these issues, there is also much gained by moving mediations online:  it’s less travel for the parties and counsel, it allows people to attend from a space that feels comfortable and safe to them, it allows the mediator to stay safe (medically), and in some ways it can be more comfortable for parties, especially if they are in a high conflict dispute.  In addition, people can choose the best mediator for them without being concerned about the geographic location of the mediator.  For all of these reasons, it is clear that video mediation is here to stay, and we expect it to be at least half of our practice going forward.  That also means we need to keep improving on the technology and the experience video mediation offers to clients.  Just like offices have to consider how they may need to remodel to fit this new world, mediators have to revamp their practices to accommodate a virtual practice.

The Lonely Office

Designing an office for mostly in-person meetings is very different than designing an office where everyone needs to be able to meet virtually (and privately), potentially at the same time.  While offices had been moving away from rows of private offices to open spaces with private meeting rooms adjacent, we may be headed back.  Each individual may not need as much space if they’re not meeting people in person in their separate offices, but they will need private quiet space to conduct confidential video meetings.  

Of course, that’s only for the people that return to the office.  Many people had to create home office spaces to accommodate their own personal needs, especially if they had children remote schooling.  This has created a divide between those who like working at home (and can do it efficiently) and those who can’t.  Most offices in the future will likely be a mix of people in person and people working from home.  Again this opens up great geographic possibilities, but also raises lots of questions about how to create a work culture when people are not regularly present in person, and how to balance the need for physical office space with the cost of maintenance.  

Personally, I am not as good at focusing when I’m in my home environment and I need the separation of office and home.  Except for the necessity of remote schooling for a period of time, I have returned to the office and have found it to be quite lonely.  Even when people are here we’re masked and it’s not the same as the feel when a workplace is bustling with activity.  It’s so different working in an office now that a comedy like The Office may not even make sense to future generations except as a historical period piece which we’ll have to explain to our grandchildren.  

While this is the type of change that workplaces undergo periodically do to market changes, industry changes, and, now, global pandemics, it’s hard to really understand the full impact these work changes have had on individuals because at the same time we are all participating in a shared traumatic event.  We may be depressed that work is less social, but that’s certainly not the only factor.

Shared Trauma is Still Trauma

Helping people resolve conflict is a tough business on some days, and when everyone is stressed out by the effects of a global pandemic, there are days when it feels impossible.  As mediators we face all the same challenges that the rest of the world is facing: the possibility (or reality) of losing loved ones to this disease or its complications; the possibility (or reality) of getting sick ourselves; caring for children navigating home schooling, masking in school and restrictions on socializing; work stoppages, and supply chain shortages; restrictions on our own socialization, travel and leisure activities; and not knowing when or if this is all going to end. Actually, the fact that we may be experiencing some of the same traumas as our clients can be an asset in the mediation process.  

It might help us make connections with our clients, help us with our need to empathize, and provide us and the clients with each other a shared experience to build on.  Despite these potential upsides, trauma is still trauma, and this pandemic has reminded many of us of the need for self-care, both professionally for ourselves, and as something we recommend to our clients.  We can only take so much conflict and if we’re not dealing with these extra stressors in our lives in an effective way we won’t be effective mediators.  Similarly we need to remind our clients that the extra stress put on them by the world right now is going to make their family conflict harder, and that it is still not their fault. 

The skills and lessons we learn as mediators are that much more important now to helping clients deal with conflict, and there is even more we have learned and can learn from this crisis.

Planning for the Unplannable

When finalizing a mediated agreement there should be a reasonable amount of reality testing.  It’s the mediators job to not take the easy answer, but rather to question solutions and as ask “what if” questions to make sure the solutions are complete. “What if you can’t refinance and buy her out of the house?”  “What if his contract doesn’t get renewed?”  The COVID-19 pandemic has taught us numerous additional potential conflicts to anticipate and hopefully help our clients plan for and avoid: “What if you disagree on medical treatments for your children?”  “What if a child becomes ill and is required to quarantine?”  “What if extended family is not in agreement to the safety standards you both agree to for your family?”  “What if there is an additional tax credit tied to who lists the child as their dependent?”  While no-one can anticipate every eventuality, we can learn from these experiences and help our clients make more robust and long-lasting agreements.  

At the same time as we use this experience to grow we’re left with the same uneasy feeling that plans are never guaranteed and that loss is always a  possibility of living life.  At it’s core the pandemic hasn’t changed any of that, just reminded us how much we should appreciate what we have today and never stop looking for the ways in which we can bring light to the darkness.  At my birthday party this past November, I discovered one such bright spot when I realized how much more fun it is to loudly clap out my birthday cake candles instead of blowing them out, a new tradition I plan to keep in years to come, hopefully someday forgetting where and when it started and just enjoying that moment of celebration.