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Litigation. Collaborative Law. Mediation.

Mediation in a Post-Covid World


When disputes arise regarding family law issues, many people prefer to avoid addressing their personal family matters in a court room. For those parties that want more control over the process and the outcome, and a less litigious and acrimonious process, mediation may be a good option.

In the wake of the COVID-19 pandemic which forced mediators, law practitioners and parties alike to become technologically savvy overnight, virtual mediation has opened the door to an even wider range of individuals who might have shied away from the mediation process before. While we are certainly ready for the COVID era to be behind us, we are hopeful that virtual mediations, practically unheard of prior to COVID, will stick around for good.

What is mediation?

Mediation is a voluntary process that enables parties to resolve their disputes outside of Court while providing the parties with a direct voice in the resolution. During mediation, the parties meet with a neutral third-party to facilitate an amicable resolution of the issues they were unable to resolve on their own regarding their divorce, separation, prenuptial agreement or post-nuptial agreement. Mediators address a variety of issues including issues of child custodychild supportspousal support, and equitable distribution of the parties’ marital property. Given that a mediator is a neutral third party, it is generally recommended that parties each retain consulting attorneys who can represent their individual interests, explain legal concepts, and help each party navigate the mediation process.

Mediation is an incredible option for many divorcing couples because it enables the parties to end their relationship while honoring the best that was between them. This is especially vital for parties who will continue as co-parents for years to come as they raise their children together.

Why might a party be nervous about the mediation process?

While parties do have their own consulting attorneys, usually attorneys are not present during the actual mediation sessions. Thus, parties must be able to speak for themselves. Not surprisingly, the idea of sitting in a room across from your spouse and stating with clarity and conviction what you want in a divorce can be daunting for some. As a result, while the mediation process certainly allows parties the opportunity to resolve their divorce in a more amicable setting than litigation, the mediation process is not necessarily free from the emotional landmines that parties deal with in a litigated divorce, and those landmines can be difficult to navigate while sitting in the same room as your soon to be ex-spouse.

How has COVID changed the face of mediation?

As a result of the COVID pandemic, like so many professionals in various industries, mediators have had to improvise during unprecedented periods of quarantine, and as a result, have begun and continued ongoing mediations over Zoom (something that was done very rarely before COVID). With the advent of “Zoom Mediations,” parties have been afforded the opportunity to sit in the comfort of their own home, all while going through what is arguably one of the most difficult and stressful times of a person’s life – divorce. Rather than being across the table from your spouse, you are now separated by a computer screen. This change has been significant and beneficial for some parties who were previously nervous to speak their mind, or for parties who felt it was too emotionally difficult to sit in the same room as the person they were divorcing. Often, these parties would resort to traditional negotiation or litigation simply because they felt being in the same room as their spouse while advocating for themselves was not an option.

Now, parties can take comfort in knowing that they can amicably mediate their divorce, all while knowing that if the process becomes too much to bear, they can temporarily turn off their video, close their laptop screen, or mute their sound, effectively taking a “moment” to breathe and regroup without the dramatic effect of having to leave the room, which, even when done calmly, can often give the appearance of “storming out.”

Moreover, if the parties have notes from their attorneys, they can access the notes more freely and speak more confidently, therefore feeling the support of their attorneys even if they are not in the room with them. Likewise, it provides the parties with the ability to access relevant information during the mediation session, such as financial statements, allowing for a more fluid discussion rather than having to come back to that issue if the information is not readily available.

Zoom mediations also allow for parties to bring a support friend or family member, who can be sitting in close proximity in another room if the process becomes emotionally overwhelming. To be sure, the computer screen has become a safety blanket of sorts, allowing those who may have avoided mediation because of the “exposure aspect” to instead feel more comfortable expressing what they want in a divorce, or other dispute within the mediation process. As a result, even in a post-Covid world, it is likely that Zoom mediations may become the new norm, or at least a very viable option for those in search of an amicable divorce process, who may not be able to bear the idea of sitting in a closed off room with his or her spouse. Certainly, it is always good to have options, and a virtual mediation is now one more option available to parties in search of an amicable, respectful way to resolve their family disputes.

If you have questions about divorce mediation in NYC, Berkman Bottger New & Schein LLP can help. To learn more about our services, please call (212) 466-6015 or fill out our contact form to reserve a consultation. Proudly serving Manhattan, Westchester, and Bergen County, NJ.