Thursday, March 19, 2020

Replace your cancelled Court Hearing with a Mediation

If you have a court hearing scheduled in the next few weeks, most likely you've been told it's postponed.  While some hearings will be scheduled telephonically and by video conference, the COVID-19 pandemic is likely causing significant delays in obtaining a hearing and an order or judgment.  This is understandable as the court and the bar figure out how to adjust to this crisis.  Regardless of how understandable these delays are, though, the experience for individuals going through conflict must be frustrating, disappointing, and in some cases devastating.

Now is the time to consider your alternatives to court.

Mediation, conciliation, collaborative representation, and arbitration are all available options to those looking to resolve their issues without further delay.  Many of these dispute resolution professionals already have experience using videoconferencing to meet with clients and for us, our business has continued almost uninterrupted.  At my office, Skylark Law & Mediation, PC, the majority of our clients have opted to continue receiving mediation and collaborative services via videoconferencing rather than postponing their meetings.  It's not the same as being in person, but for clients, it's better than waiting to address their pressing issues.

So, if your clients are frustrated by the necessary delays in the court process, consider telling them again about their other options.  If you're looking for family conflict mediators you can find a list of professionals via the Massachusetts Council on Family Mediation website.  If your clients may not be able to afford a private mediator, consider the many community mediation services in Massachusetts that provide services on a sliding fee scale basis - all listed on the Resolution Massachusetts website.

If you're looking for a specific recommendation for a dispute resolution professional in any area of the law, feel free to reach out to me directly, or post a comment to this thread with your referral request.

Finally, this crisis is also an opportunity to think about how we plan to deal with conflict in the future.  We can continue business as usual when this crisis has passed (which it will), or we can reflect on whether this crisis has highlighted a better way to approach conflict.  Take these steps to be better prepared the next time an emergency situation occurs:

  • Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis.  Don't assume your lawyer or the court is going to be there to help, or that they should be your first call when there is a conflict.  
  • For professionals, get trained in mediation or collaborative law so you can provide additional service options to your clients (visit these links to sign up for a mediation training or collaborative law training in the fall).
  • Encourage the Massachusetts Bar Association (or your local bar association) to add mediation, conciliation, collaborative representation, and arbitration, as service options in their lawyer referral directory.  This has been proposed before to the Mass Bar and rejected, but it seems like it may finally be time to recognize how important it is to have alternatives to the court, and that the professionals who offer those alternatives offer a vital service.

Wednesday, March 18, 2020

Co-Parenting in a Crisis: COVID-19 and Beyond

UPDATE: Chief Justice John D. Casey sends an Open letter regarding co-parenting during COVID-19:

"It is times like this, when society faces threats once thought unimaginable, that the rule of law is more important than ever... Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order. In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone."

Additional resources have become available during this crisis, please scroll to the bottom of this post for more resources.

Co-Parenting in a Crisis: COVID-19 and Beyond

by Jennifer Hawthorne

Mediators and collaborative professionals work with parents to create a realistic and practical parenting plan that is detailed enough to provide a roadmap for parents but flexible enough to allow for change given new circumstances.

At times though, even the best reality testing fails because life throws situations at us that may have been unimaginable when the parenting plan was created. What we are all living through now with the COVID-19 pandemic and the necessary social distancing it has brought is certainly beyond what most of us imagined would occur during our lifetimes. This sort of thing only happens in dystopian movies and novels, right?

For families who live in two homes, the social distancing and potential government imposition of a full quarantine, like those already in effect in Italy and China, brings with it challenges beyond staying healthy, keeping your distance from others, and ensuring you have enough food and toilet paper to get you through the next two or more weeks.

For parents, at a minimum, it also means thinking about:
  • When and how your children should move between homes during periods of social distancing?
  • Should the children bring belongings back and forth? 
  • Is there consensus on who will be allowed near the children during this period of social distancing as well as who each parent will be around to allow for proper tracking if either parent or the children begin showing signs of illness? (Significant others, other children in the household, grandparents, etc.)
  • What is the plan if one parent starts showing signs of illness while they have parenting time? 
  • What is the plan if one parent starts showing signs of illness while they do not have parenting time? 
  • What is the backup plan if both parents show signs of illness at the same time? 
  • What if a child becomes ill? 
  • What if both parents are hospitalized? 
  • Do you both have a list of emergency childcare providers? 
  • Do you both have contact information for doctors and family members who may need updating?
  • Where will the children stay if the government stops allowing free movement? 
  • What technology can you leverage to continue to allow the children to meaningfully interact with the non-residential parent if a full quarantine is put into place?
In the short-term, while free movement is still allowed, to keep a sense of normalcy for your children, if at all possible, it’s probably best to stick to your regular parenting plan with lots of hand washing and sanitizing as the children move between households. If because of a lack of school, lack of childcare, and/or employer expectations it’s not possible to stick to a normal schedule, try to come up with a plan that might meet everyone’s needs for the next few weeks. If you need assistance having these emotionally charged and stressful conversations, reach out to a mediator or co-parenting coordinator who might be able to help you talk through some contingency planning.

The mediators at Skylark are available via Zoom so that we can all continue practicing social distancing while still helping our clients make difficult co-parenting decisions.   Although we always encourage dispute resolution before court action, for anyone reading who might be inclined to let a judge determine your contingency parenting plan, it’s important to know that the Supreme Judicial Court has issued multiple orders limiting access to state courthouses and court facilities.  Visit the court's website for the latest orders.

We hope everyone reading stays safe and healthy, and we encourage a little planning now which could provide some relief in the future from the stress that this type of crisis has left us all feeling. Should a health crisis or quarantine arise for your family, creating a plan now will alleviate the need to do so when things become even more difficult.

Even if you have a plan for this crisis, use this time to consider building into your parenting plan a process for how emergency decisions will be made in the future, and who you will work with if you're unable to reach agreement.  Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis.  You may hope you never need them, and if you do then you'll at least feel like one more thing is in your control at a time when other things may feel out of control.

UPDATE: Additional resources have become available during this crisis:

How to Talk to Your Children About the Coronavirus (COVID-19)

Seven Guidelines for Parents who are Divorced/Separated and Sharing Custody of Children During the COVID-19 Pandemic

AFCC - Coronavirus (COVID-19) Resources and Information

As courts and government officials deal with this crisis, more and more will issue orders that address how parenting plans should be enforced during stay-at-home requirements.  A few examples have already been issued:

Chief Justice John D. Casey sends an Open letter regarding co-parenting during COVID-19: "Parenting orders are not stayed during this period of time..."

Dallas County Standing Order Regarding Possession Schedule During School Closures

Ohio Department of Health Stay at Home Order which includes a provision allowing for essential travel to "transport children pursuant to a custody agreement."

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