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Dispute resolution options in the post-COVID-19 world:

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I went home from work one night, in March 2020, as per usual leaving my to-do list for the next day on my desk.  The next day included the expected set of tasks in my work as a mediator, settlement professional, and lawyer which included calls with clients, settlement meetings, drafting documents etc.

But the next day was not business as usual and my list and expectations went out the window.

Chantel Lawton.

COVID-19 brought with it states of emergency, newscasts updating us on the ever-changing rules around isolation, running of businesses, and everyday life. We became glued to news reports and listened to experts about what to do next and what was around the corner. These were experts that a few days before many of us could not have named. The world in the midst of a worldwide pandemic is one most of us have never experienced in our lifetimes.

I now had all the same tasks on my to-do list while at the same time developing ways to ensure the safety of my clients, my staff, and my family. I also continued to be focused on taking care of my clients, and the challenges that they were already facing as a result of separation and divorce and other legal challenges.

It seemed like in the blink of an eye the world had changed. The schools closed, the court system closed its doors, and the “new normal” began. I came to realize that this shocking change was not unlike what many people experience when they are faced with a separation or divorce. As if overnight their world changes and they do not know what to expect. They don’t know where they will live, where their children will live, how much money they will have to meet their needs, what their budget will need to include, and how they will divide up their assets and debts. The anxiety of the unknown can be overwhelming and daunting at the best of times. Combining those circumstances with COVID-19 can be an unimaginable situation for many.

I knew that the families I worked with still needed my support and help, possibly more than ever.  How I could assist my clients depended on the option that they had chosen to resolve their disputes. As a result of the pandemic I quickly readjusted my practice to provide services to my clients remotely by telephone and video. With both myself and my staff working remotely we have continued to be there for our existing clients and to assist new families faced with separation and divorce. This has included providing online dispute resolution options for my clients.

Some people turn to the court process as a first step when they separate. They do so perhaps because they are unaware of alternative options or because they believe they have no choice but to address their outstanding issues with someone else, a judge, determining the matter for them. As a result of this virus, many families who had been waiting months for a court date suddenly were told they would be waiting for many more months with no specific date being given.

Newly separated families were faced with urgent issues were told that they could only be assisted by the court on a limited and urgent basis. People who anticipated having a long-awaited trial to determine their matters, were told that their trials would be put on hold. All of this was of course understandable in the circumstances of the pandemic, where the priority has been and needs to continue to be keeping people healthy and safe.

Court is not the only option now and it has not been the only option for quite some time.  More and more families are choosing to resolve their disputes through the alternative means of mediation and collaborative process. Those processes continue to provide families with an efficient, amicable means of resolving their disputes.  Many of us who are mediators and collaborative process professionals quickly adapted our process to an online dispute resolution process. This has allowed us to continue to work with families in crisis, even while social distancing.

What does online dispute resolution mean?

Online dispute resolution is when you use some form of technology as part of your resolution process. This technology can take many forms depending on the professionals involved. It can mean that you have settlement meetings by way of video conferencing and/or telephone either together or separately. I make sure to tailor the process to meet my clients needs.

Can you engage in mediation through online dispute resolution? What does that involve?

Yes. Mediation can be conducted through online dispute resolution. Mediation is a voluntary process so each party must agree to engage in mediation and must agree to engage in it through technology rather than in person.

Mediation is a confidential process in which spouses meet with an accredited mediator to assist them in resolving their dispute. The mediator is trained to facilitate the discussion between the spouses and provide to them the information they may need to reach an informed resolution. At the end of the mediation process, if an agreement is reached, a memorandum of understanding or a separation agreement is prepared, and each spouse then meets with their own lawyer to obtain independent legal advice about the agreement.

While each mediator has their own process design for mediation, my process involves having an initial meeting with each spouse separately. When I am engaging in online dispute resolution this involves having an initial video discussion with each spouse during which I explain the mediation process and my role as the mediator. I also gather information from each spouse about the issues in dispute and the important facts. For those that are less comfortable with technology I can begin this discussion on the phone and walk the individual through getting connected to the video technology if that is an option for them.

After this initial intake session, should both spouses agree that mediation is the correct process for them, I generally arrange a group video session with both spouses where we begin the process of mediation. Within the video sessions I can have breakout rooms for each spouse where I can take breaks and check in with each spouse privately, as needed. I can also share documents on the screen so that everyone can see them as we work through various issues. When an agreement is reached, I can also review that agreement with both parties at the same time in a video conference.

Can you engage in collaborative process through online dispute resolution? What does that look like?

Yes. Collaborative process can be conducted through online dispute resolution. The collaborative process again is a confidential voluntary process. All parties must agree to engage in this dispute resolution method and must agree to do so through technology, if applicable.

The collaborative process is a team approach. Each party has their own lawyer who is with them at each session and provides them with legal advice throughout the process. In addition, the team may include two neutral professionals, a family professional (who facilitates the discussion and helps the family address issues of communication and parenting) and a financial professional (who gathers in the financial information, prepares calculations, and assists each party in the financial decisions impacting their future). If an agreement is reached a separation agreement is prepared and signed. No additional independent legal advice is required because your lawyer has been available to provide you with advice throughout the process.

While each team develops the process that is needed for the family they are working with, generally both spouses have individual meetings with the neutral professionals and their own lawyers prior to the initial settlement meeting. When engaging in online dispute resolution those initial meetings may be in person, on the phone, or by video conferencing. We then arrange a settlement meeting which is generally conducted with both spouses and each team member being present. This settlement meeting is conducted by video conference and this platform allows for breakout rooms where each spouse can have private meetings with their individual lawyer or one or both neutral professionals, as is needed from time to time throughout the session.

In my office, I ensure that my clients are comfortable with the video platform prior to our initial settlement meeting and that they understand how it works and what to anticipate in the meeting.  If needed, I have a phone call with my client to assist them in setting up the video technology for the meeting.

What do I do if I am already in a court process and waiting on my next court date?  Can I still engage in another dispute resolution process?

Yes.

If you have a lawyer, you find out what options may be available to move forward with a resolution in your matter.

If your lawyer is trained in the collaborative process and your spouse also has a lawyer with the appropriate resolution training, or if they are able to retain such a lawyer, then you may be able to withdraw from your court process and engage in a collaborative process. This can be done either in person or through online technology. Or, you may be able to put your court matter on hold and choose to engage in mediation. Mediation can be conducted with or without lawyer’s present.

If you do not have a lawyer, you should consider whether mediation or the collaborative process may be right for you.  You may wish to consult with a lawyer to assist you in choosing the right process for your family. Or, you may wish to discuss with your former spouse which option may be best for you.

For more information about Mediation, Collaborative Process or Online Dispute Resolution options contact my office at www.chantellawton.com or 705-878-9949.

Or for more general information about these processes see www.kawarthacollaborative.com or www.oafm.on.ca or www.oacp.co.

Chantel Lawton has been offering services in Collaborative Law since 2012. She has completed specialized training to be able to offer this service to her client’s and has worked extensively with the local group, Kawartha Collaborative Practice, to expand the services available in the area. Chantel is the current chair of the local collaborative organization.

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