Mediation during COVID-19

With the closures of courts, mediation has become an important tool for resolving family law disputes, but how is mediation being conducted while maintaining social distancing measures?

Many lawyers have switched to the use of video conferencing programs such as Zoom to conduct mediations. With these video conferencing programs, the lawyers, the clients, and the mediator are able to conduct a full mediation without meeting in person. Furthermore, many video conferencing programs, such as Zoom, allow for either all parties to be present on screen at once or in two separate “breakout rooms”. These breakout rooms allow only, for example, a spouse and his or her lawyer to be able to see and hear each other. In addition, the mediator has the ability to bounce between the two rooms, similar to if the parties were in separate rooms during an in-person mediation.

But, do you need to be with your lawyer in person during the mediation?

You do not need to be in the same room with your lawyer as many video conferencing programs allow multiple participants at once. However, if you do wish to still be in the same room as your lawyer, Baker Newby LLP has put in social distancing measures to ensure your safety, as well as our staff’s safety, during your mediation. Baker Newby LLP is also equipped to allow both you and your lawyer to video conference at the office, but in separate meeting rooms. This option allows those clients who do not have the proper equipment for the video conference to have that equipment available, without also needing to be in the same room as someone else.

What about confidentiality during video conferencing?

The same rules that apply to in person mediation apply to mediation done over video conferencing- a person who is not contractually bound by the confidentiality provisions contained in the mediation agreement should not be present in any of the physical rooms of any mediation participant. This means that if you chose to not be in the same room as your lawyer during the mediation, you must ensure no one else in in the room with you or listening to the mediation. In order to comply with the confidentiality of the mediation, we recommend you set up the video conferencing in a room with a door and use headphones or a headset during the mediation.

While we do not anticipate in-person mediations disappearing post COVID-19, expect that mediations held through video conferencing programs to be the new normal going forward during this pandemic.