Mediation During COVID-19

Mediation is Available in Michigan During the Coronavirus

Most courts in Michigan require parties to participate in mediation.  You may have received a notice in the mail that you needed to select a mediator, or you may have an Order requiring you to attend mediation.  But how does that work when many parties are required to stay at home or want to stay at home due to health concerns?

First, what is mediation, and how does it work?

During mediation, a neutral third person, called a mediator, helps the parties by discussing their disputes and reaching a resolution.  There is a wide range of qualifications and quality of mediators.  

Next, do I have to attend mediation during COVID-19?

If you received a court order, then, yes; you must comply with the court order.   Mediations occur via Zoom meetings to safeguard parties’ health.  If you believe that mediation via Zoom should not happen, your first step should be to discuss your concerns with your attorney.  If your concern is invalid, you should not pursue a frivolous request.  If you have a valid concern, you may have some alternates available, such as postponing mediation.  Lastly, if you want mediation canceled, you will likely have to file a motion to request the court’s permission.

How Does Mediation Via Zoom Work in Michigan?

Some elements are similar to regular mediation.  Both parties can attend with or without their attorneys.  Before you start your mediation via Zoom or other video conferencing, ensure that the mediator uses a secure portal.  If you are concerned about your mediator’s use of Zoom or other video conferencing software, you should request your mediator to provide a written security protocol.  A few suggested security measures that you should expect are:

• Participants must use a password to enter the meeting;
• The meeting will be locked once all participants have signed in;
• A warning to all participants to keep the sign-in link meeting ID and meeting password secure;
• A warning that participants should not access the meeting on a public network (i.e., a library’s or coffee shop’s wireless network);
• Participants should use the latest version of Zoom software to ensure the latest security patches.

If you have not used Zoom before, you should familiarize yourself with Zoom. You should be able to turn the audio and video on and off, and you should be able to switch between a speaker screen and all participants’ screens.  During the mediation, it will be beneficial for you to see all participants’ faces.  Nonverbal language may give you essential ques.

An advantage of a Zoom mediation is that a mediator can control each party’s ability to speak; or in other words, the mediator can mute a party when it’s not his or her turn to speak or when tempers flare.  Competent mediators employ a Zoom subscription that allows them to meet with a party in a ‘breakout room’ without the other party present.  Such meetings often occur during face to face mediation and should occur during a Zoom mediation as well.  If an agreement is reached, the mediator should have the ability to immediately provide the parties with a written version of their agreement and allow for e-signatures on the agreement. A signed mediation agreement is binding.  For more information about binding mediation agreements, review our blog.

What are Some of the Disadvantages of Virtual Mediation for a Family Law Matter?

Zoom is a great technology, but technology sometimes fails.  When a party cannot turn on the audio or video portion, the mediation must be postponed.  Likewise, Zoom can “freeze”, creating an audio or visual delay.

Most clients would not consider bringing their children to the mediator’s office, but with school not in session, children are sometimes nearby, and children should not overhear family law mediations.  Although children may not appear on screen or be heard, parents might allow children to view the proceedings.

Zoom allows a party to record video conferencing, and this may inhibit parties from honestly expressing their thoughts and feelings, which in turn may prevent settlement. Additionally, although settlement negotiations are not admissible evidence, the temptation of producing a mediation recording may cause a disgruntled party to seek a judicial review of the agreed-upon settlement.

Will You Benefit from a Zoom Mediation?

Realistically, if you do not attend mediation, your case may be on hold for an extended period.  As long as your case is on hold, it will be difficult or impossible to pick up the pieces and rebuild your life.  If you are unable to settle during mediation, you wasted a few hours, but at least you learned valuable information about the opposing party’s viewpoints. 

If you were ordered to attend mediation and have some questions, we provided some information about Settlements options, including Kitchen Table Negotiations, Mediation, and whether you should settle your case.   If you would like to discuss your options, contact our family law attorneys at 616-285-0808.