Family Mediation During the Coronavirus Pandemic: Unprecedented Times Call for Extraordinary Measures

Although the coronavirus pandemic has impacted virtually every aspect of American life, its effects are amplified for divorced families with young children, and even worse for families in the midst of divorce. Divorced and divorcing parents and their children are under virtual house arrest, without the usual responsibilities and diversions of work, school, playgrounds, playdates, movie theaters and restaurants. Co-parenting arrangements between estranged parents that were challenging under the best of circumstances have become for many infinitely worse under the stress of the pandemic. Time-sharing schedules may no longer be relevant and/or practical:  Many parents don’t know which order to follow, their court-ordered parenting plan or their local or state shelter-in-place order. Some parents are using the pandemic as an excuse to shirk their time-sharing obligations. And in many cases, child- and spousal-support orders have become more difficult, if not impossible, to comply with. Fuses are short, anxiety is high and many parents are turning to their lawyers and the courts for relief. However, because most courts are closed except for emergencies, litigation is in most cases foreclosed. Mediation is the obvious alternative, yet traditional family mediation itself is foreclosed due to the need for social distancing. Where are distressed parents to turn? 

These words from Abraham Lincoln, spoken during the midst of the Civil War, arguably are applicable now: “The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew.” The family mediators at JAMS have risen to the occasion, speaking with each other and with other family law professionals to come up with the best family mediation protocols to use during these difficult times. Here is a sampling of our thoughts:

1. Recognize That People Are Scared and Stressed Out. In this milieu of fear and uncertainty, many divorcing and recently divorced parents are functioning with diminished capacities. People are scared and stressed out. “How am I supposed to create a parenting plan while I’m grieving the loss of my marriage as well as coping with this pandemic?!” They need emotional support, not just from mediators, but from their attorneys and other divorce professionals as well: empathy, warmth, care, tenderness, positive regard. Before turning to the business side of things, help your clients deal with their underlying anxiety: The concern about changes to support or custody can be an attempt to cope with fear. This pandemic is disorienting, and clients need our help to create a realistic and supportive narrative for what’s happening. Both the lawyers and the mediator need to reassure the parties using sentiments such as the following: “You can get through this and you will get through this. You have what it takes. And I’m right here with you. We’re in this together. You are not in this alone.”
   
   
2. Get Out of Business-as-Usual Mode. This is not the time for litigious behavior, threats or nasty letters. Lawyers must set aside their differences and problem-solve together in order to help the families they serve. If your clients are freaking out, then be their rock of support. If opposing counsel is being unreasonable, don’t respond by getting defensive or playing hardball. Instead, try to find any positive intent in his or her comments and respond to that. Gently remind him or her that this is a shared problem and that you need to work together for the benefit of both of your clients.
   
   
3. Get Creative. Creativity is often one of the first casualties when people are in survival mode. Offer practical options for dealing with the stresses created by the pandemic. Suggest ways in which both parents can get the resources they need. Because we need to work together under these trying circumstances, be open to trying joint sessions. If the parents can’t even be in the same virtual room together, perhaps the lawyers can. Parties and counsel need to see each other as human beings and treat each other with gentleness and respect. The more relaxed the atmosphere in the mediation, the more creativity can flourish.
   
   
4. Focus on the Essentials. Strive to reach agreement on what’s absolutely necessary and to put off the rest until more details emerge.
   
   
5. Remind the Parties to Keep Their Focus on the Kids. Canadian mediator Brian Galbraith recommends telling parents the following: “During this crisis, your children will look to you and how you are reacting to current events. They need to see parents who are cooperative, confident and working together to ensure they are safe, happy and healthy.”
   
   
6. Existing Custody Orders Should Be Followed Absent Emergencies. One of the more common disputes we are seeing involves custody orders. The consensus among JAMS family mediators is that parties should be encouraged to follow court orders and agreements unless there is a truly compelling reason to deviate from them, in order to protect the children from the coronavirus. If a parent has been exposed to the virus or is showing symptoms of infection, that parent should self-isolate. Communicating remotely on a regular basis with the children is encouraged, and you can discuss how the parties might make up lost time once the pandemic passes. If the children are already in a household where someone has been exposed to the virus or is showing symptoms, they should not go to the other parent’s home until that parent has fully recovered from the illness. Even if no one is sick now, contingency plans should be made anyway.
   
   
7. Make Sure Both Parents Are Following Social-Distancing Rules. If either or both parents are dating, this needs to be discussed. Allowing visits from significant others or to their homes is in violation of social distancing and should be discouraged. Agreements should be reached regarding the parties’ contact with other people.
   
   
8. Create Temporary Custody Agreements. Many stressed-out parents are having to home-school their children while either looking for work, working remotely or working under extraordinarily difficult conditions—and may need to alter parenting schedules. Again, flexibility and creativity in the context of joint problem-solving are the keys to arriving at the best solution for caring for the children.
   
   
9. Create Rules of Engagement for Divorcing Couples Still Living Under the Same Roof. A number of us have mediated cases in which the parties were planning to separate but neither had moved out of the marital home when the shelter-in-place order went into effect. Living under the same roof as your soon-to-be ex can be challenging, stressful and even dangerous (reports of domestic violence have spiked during the quarantine). These clients may need help with creating clear “rules of engagement” and drafting a schedule that establishes who the on-duty parent is and what their responsibilities are. They should strive to eliminate all vagueness and uncertainty in order to avoid further conflict and stress.
   
   
10. Encourage Self-Care. Perhaps the most important contribution we can make to our clients’ capacity for positive co-parenting is to ensure that they have the support they need. Isolation should be avoided, and regular communication with friends and loved ones should be encouraged. Self-care is just as essential for the professionals as it is for their clients. If we do not have adequate resources, we will pass on our anxiety to those we work with, and we will be less effective and supportive.

Stephen H. Sulmeyer, J.D., Ph.D., joined JAMS as a full-time neutral after nearly 20 years as a mediator in private practice. He has a dual background as a commercial and intellectual property litigator as well as a clinical psychologist, specializing in the settlement of disputes involving professional and intimate relationships.