Abby Tolchinsky and Ellie Wertheim

Mediation is a tool that lends itself to these critical pandemic times. At a time when most of us are self-quarantining and social distancing—and when courts are open for emergencies only—mediation offers the best option for conflict resolution. Parties need immediate relief and whatever certainty they can get during these uncertain times. In our practice, we are finding parties mediating interim agreements and post-divorce agreements to accommodate the particularities of parenting and financial issues, presented by the coronavirus crisis. There is little we can control and so much unknown, so much fear for one's own well-being and for that of our loved ones. But in mediation, parties do have agency to express values, risk thresholds, as well as how they wish to raise their children, and protect their financial futures to the extent possible.

As with all gatherings—from cocktail parties to seders to classes and doctor appointments—mediations are taking place on Zoom. There are, of course, drawbacks to not being together in one room. That said, we've found parties to be open, vulnerable and engaged in the process, even embracing all that an online platform has to offer. In particular, a physical distance from the conflict can chip away at some of the guardedness we experience in person. From the comfort and privacy of one's own room, parties are less inhibited, less formal, all the while under excessive levels of anxiety due given the moment.

With respect to parenting time, out of fear, necessity, and deep concern, many parents are unilaterally taking action outside of the four corners of their agreement—in some cases, agreements that have, until now, stood the test of time. And, as courts are staffed to hear emergencies only, where one parent acts without consulting the other, the options for swift resolution are limited. We have seen recent cases in which one parent decamps from the epicenter of the virus (New York City) to a second home out of the city, precluding established shared parenting time with the other. And what of the cases in which one parent is a grocery clerk, firefighter, nurse or other critical frontline worker? These types of cases have received quite a bit of media attention, as parents have grappled with the safety and well-being of the children, recognizing that parents whose work entails a higher level of risk of infection, may find themselves potentially and indefinitely cut off from their own children. Another concern that has been raised in mediation includes: one parent not knowing who is coming and going from the other parent's home, thus transmitting risk of exposure to COVID 19.

A court in Canada was called upon to address this issue. A mother asked the judge to suspend visitation with the father in order that their nine-year-old child remain in her home and not risk exposure and transmission of the virus. The court was quite clear that the relationship with the father was vital, that there was no particular risk and that it is essential, particularly in these times, for parents to make every effort to cooperate:

Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

a. The disruption of our lives is anxiety producing for everyone.

b. It is even more confusing for children who may have a difficult time understanding.

c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.

d. Vulnerable children need reassurance that everything is going to be ok. It's up to the adults to provide that reassurance.

e. Right now, families need more cooperation. And less litigation…. None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.

Ribeiro v. Wright, 2020 ONSC 1829 (CanLII).

On a similar note, in these pages, Judge Jeffrey Sunshine recently implored parents to remember that in these fraught times children need to be met where they are, both emotionally and developmentally. In particular, this requires extending every effort to make them feel secure. They have experienced divorce, and therefore loss. Let them experience this moment with a sensitivity to their well-being: "I hope over the next few years children will be telling me how positively their parents behaved to make sure they were safe, allowed access by technology if illness or the risks of travel prevented access, and that both of their parents put their differences aside and they did it for me." "COVID-19 and Future Custody Determinations," NYLJ March 27, 2020.

And when changing schedules, health risks, falling incomes and savings accounts, all present too big a challenge for parties to meet on their own, mediation is an ideal option for a facilitated conversation. It affords parties a direct space in which to communicate. The hope is that there will be a speedy resolution where one is called for, resulting, potentially, in an interim agreement that can take into account the needs of the whole family for the duration of the period of sheltering in place.

With respect to what are likely to be significant financial challenges as a result of the current economic shut down, we can use a few reference points: one, historically, the 2008 financial crisis marked by tremendous job loss and diminished incomes; two, in our mediation practice, we always include discussions about adjustments to support should incomes or circumstances change; and three, the child support law has a formula for such adjustments.

Still, there are some immediate needs that have arisen: Many have been let go or furloughed from their jobs and will be receiving unemployment benefits. They may well need to make adjustments to budgets and to previously agreed-upon spousal and child support agreements, for the benefit of the whole family's well-being. It is essential, of course, that any modifications be executed with the same formalities as the original agreement in order to avoid any claims of outstanding arrears.

As we work with parties to mediate equitable distribution of marital assets, a few additional points to consider: One, the CARES Act provides, with some parameters and caveats, the ability to withdraw up to $100,000 penalty-free from retirement accounts before age 59½. This gives mediation clients some flexibility when thinking through cash flow and budgets, particularly in the coming months, if there has been a job loss, and with opportunities to re-contribute in the future. Asset valuation calls in these times for collaborative and creative reality-based solutions. In mediation, we insist that parties engage one neutral appraiser for a home or a business they are seeking to value and distribute, thereby pre-empting a "battle of the experts." Obtaining that appraisal now, when there is no real liquid market in many cases, creates a challenge—and perhaps an opportunity. We don't know when, if, or how the different markets will recover, but parties to mediation are often creative in their approach to solutions. They can, for example, set future time frames for re-valuing and perhaps re-balancing the distributions accordingly. Or parties may consider taking an average of several appraisals over time in order to start to move the resolution process forward now, thus capturing the shifting markets.

We work with parties to arrive at legally viable resolutions that are tailored to their specific values, needs and reality. Particularly in these unprecedented times, resolving conflict in mediation calls for resolutions that are not one-size-fits all. There are interim agreements for parenting time that include who will supervise what aspect of the homeschooling endeavor and who can be present in each home during the period of shelter in place. We are already seeing people coming to their own creative solutions: couples long separated find themselves living together, away from their primary residence, in the hope that such an arrangement provides safety and sanctuary for the entire family; teenagers attending state school rather than private university as family assets have lost value and parents are experiencing pay cuts; a health care worker parent, whose schedule has doubled due to needs in the hospital, agreeing to a modified parenting schedule on an interim basis—both in the hopes of protecting the health of the family and with the cooperation of the other parent who is taking on the added days.

Mediation is a tool that lends itself to these critical pandemic times—for families previously living with great levels of tension and conflict, the chance to have a facilitated conversation and ease the pressure can help spare them added anxiety and even resolve or preclude anger. For families whose financial and parenting agreements no longer comport with the realities of their current incomes and lifestyles, mediation too offers an opportunity to reconsider terms under the new circumstances.

Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.