ADR Alternative Dispute Resolution during COVID such as Mediation

When Sally* moved back to the U.S. a few years ago, she had hoped it would be a fresh start. Her marriage had been shaky since the recession, and she wanted to give the relationship a second chance. But things took a turn.

“The financial pressure was intense,” she says. “[My husband] started acting very strangely, which I really didn’t understand at first. . . . It wasn’t physically abusive, but it was definitely gaslighting and emotional abuse.” Eventually, her husband admitted he wanted a divorce and said he would move out. But months passed without him filing for divorce. “I waited and waited and waited, and he didn’t do it,” Sally says. “Everybody started saying to me, ‘Why don’t you do it?'” But she was hesitant. California was a community property state, which meant she would have to split all assets acquired during their marriage—most of which she says she had earned or paid for. “He wouldn’t get a job and wouldn’t work,” she adds. “I was the breadwinner and always managed our finances.” Later, she discovered why he wanted a divorce: He had been seeing another woman for years. “I think that’s why all the bad behavior started,” she says. “He wanted me to leave him because he didn’t have the balls to leave me.” Their new reality, in the time of coronavirus, is being isolated in their home together with their two children. It’s a confounding limbo. For Sally, the experience has mostly been less fraught than she expected. “This sounds really weird, but I’ve just enjoyed having everyone at home. It feels like how it used to be,” she says. “Sometimes I’m like, ‘I could knife him in the back right now.’ And other times, the food smells so good and I’m so glad that I don’t have to cook every meal.” As for how her husband copes with not seeing his girlfriend? “I’m pretty sure that’s why he goes to the supermarket a lot,” Sally says. “To FaceTime her.” Being cooped up inside is hard enough for couples that are happily married or cohabiting. For those in the throes of a divorce, a months-long quarantine might be nothing short of a nightmare. “I’ve been living in the same house with my ex pre-quarantine, mostly peacefully,” reads an entry on the Social Distance Project, a compilation of anonymous stories about quarantine relationship drama. “Now we are stuck here and I am working from my bedroom while we share parent duties. The first day of the Bay Area lockdown he had already told me he hated me.”

Mitch Gordon, a divorce lawyer in Chicago, says he started hearing from anxious clients immediately after schools shut down across the state and large events were banned on March 13. “My clients were going insane,” he says. “You have people who are stressed out and panicked and emotionally traumatized as it is. And then you have this added layer of stress.” But it’s not just that spouses—or ex-spouses—are stuck together for the foreseeable future. In states across the country, from California to Illinois, the courts have effectively been closed aside from essential functions or emergency issues such as domestic violence. (Even the Supreme Court has postponed oral arguments.) That means embittered couples likely won’t find resolution in court right now. But even a global pandemic can’t stop them from filing for divorce, or at least entertaining the idea, after months of sequestered bliss. In China, the divorce rate reportedly spiked across two provinces as quarantine restrictions lifted. “I did have somebody who was clearly calling me from his closet or something—he was whisper talking to me,” Gordon says. “The week after Friday the 13th, I had a ton of people make exploratory calls. Those were people who were sort of contemplating filing before this. The questions were mainly forward thinking: ‘I’m not going to do anything now, but in two months or three months, what should I be doing to prepare?'” The quarantine has also presented a challenge for separated or divorced co-parents: How do you honor custody agreements in the midst of a statewide lockdown? “I thought it was a relatively simple legal answer,” Gordon says. “You are allowed out of your house.” He has recommended that people follow CDC guidelines if they do stick to their usual parenting arrangements. Some parents that have opted not to see their children for safety reasons have scheduled “parenting time” via FaceTime or Zoom, Gordon says. “I can’t imagine putting your kid on a plane right now,” says Alphonse Provinziano, a divorce attorney in Los Angeles. “I have two kids myself that are from a prior marriage, and we just decided it was better for them to stay at their mom’s house. We don’t want them traveling around.”

THE DANGERS OF SOCIAL DISTANCING

Five months after separating from her husband, Sarah* was finally moving into her own apartment. She had booked movers and nearly finished packing when, on March 16, multiple counties across the Bay Area issued shelter-in-place orders.

“I was worried the move would get canceled,” she says. “I called [the movers] and luckily they came a few days early. I was very relieved that they moved me. But it was odd having a moving truck and doing all this. The streets were empty and there was no one [outside]. It was just me and two movers and my boxes.” Had she not been able to move, Sarah may have found herself living precariously in the midst of a lockdown. “I left an abusive marriage,” she says. “It would have put me in a [bad] situation if I had to stay there longer. He essentially gave me a date and said you need to get out by this time. Under different circumstances, I would sleep on a friend’s couch or stay with my best friend. But it’s not a situation where you can even go run to someone’s home for shelter. It definitely made me wonder about other people who had the most basic escape plans canceled.” Many couples have quipped that their marriages might not survive a quarantine, but for some people, mandatory self-isolation with a spouse or ex could be downright dangerous. In just weeks, the National Domestic Violence Hotline has seen an uptick in callers, Time reported recently. Victims of abuse and domestic violence are especially vulnerable under a state-sanctioned lockdown, which can leave them trapped at home with their abusers and isolated from friends and family. Some people experiencing physical abuse might not seek out medical help if it means risking exposure to coronavirus—assuming they can even get access to care at hospitals overtaxed by COVID-19 patients. “In the last two weeks, we saw the calls about domestic violence double,” Provinziano says. “Unfortunately in a dysfunctional relationship, a lot of times there is an element of domestic violence. Basically all the calls we’re getting from people looking to hire us have been domestic violence-related. We’ve had people hire us this week to help them get a restraining order.” States such as California have strict protections around domestic violence, which means restraining orders are still considered essential services. Even in the midst of a global pandemic, the courts can order abusers to move out of their home. Still, for victims of abuse who lack the access or means to hire a lawyer, a quarantine chips away at their usual escapes. Domestic violence shelters, which are considered essential services, are overwhelmed as they struggle to keep up with state regulations and social distancing measures. Advocacy groups are using texts and live chats to communicate with victims who are stuck at home. “I’m sure there are a lot of people out there, especially women, who are struggling,” Sarah says, “and are like, ‘Work was my only safe space,’ or ‘The only time I felt secure was at work.’ I think there’s a lot of things we deem nonessential that are actually very essential.”

A POSTQUARANTINE DIVORCE BOOM?

On and off social media, people have wondered if we’ll emerge from quarantine with a divorce boom or a baby boom—or both. The lawyers I spoke to believe the rate of divorce filings will rise, and not just as a direct result of being homebound for months on end. Financial stressors and addiction issues are often fodder for divorce, says Gordon. “I’ve been getting emails from restaurant owners saying, ‘I know I owe you money, but I’m really sorry, I can’t pay you,'” he says. “I have a lot of clients, whether it’s the pilots or the restaurateurs or the people who supply them, whose income is either going to be completely slashed or zero.” Some of his clients have said they may not be able to keep up with child support payments, and Gordon believes many people mulling a separation will lack the funds to actually move out of the house or pay for a divorce. “I think the fallout financially is going to be worse than in 2008,” he says. “People were divorced and still living together because they couldn’t sell the house or afford to get a second place to live.” Some couples may turn to mediation, which is a cheaper alternative to going to court. “It’s just another process to resolve disputes, and it really puts the responsibility on the parties to negotiate and figure out something that works for them,” says Jenna Blackmon, a family law attorney and mediator in California. Mediation is also an appealing alternative at the moment because it can be conducted virtually, which gives couples an opportunity to keep moving forward despite not having access to the courts. For couples who have the good fortune of not being quarantined together, online mediation can sometimes be beneficial, Blackmon says. That’s especially true in abusive relationships or if one person tends to dominate the conversation. “The barrier of being in an online meeting is each person has to speak in turn,” she says. “When you speak over somebody on Zoom, nobody gets heard. It can be a challenge, but if parties are on board with doing it, [online mediation] almost provides more of an opportunity to be heard.” Provinziano, who is part of an ad hoc committee to address the effects of COVID-19 on family law, is doubling down on mediation to bypass the traditional court system. “We’re going to see thousands of cases backlogged when this is all over, and the court system is going to be inundated,” he says. “So what can we do as private practitioners to relieve the burden from the system? We’re trying to create effective solutions with private judges to do mediation.” It’s safe to say some couples may be starved for mediation by the end of an imposed quarantine. As for Sally, she hasn’t quite made up her mind about her impending divorce. “Three nights in a row, we sat and watched Tiger King together,” she says of being quarantined with her husband. “It’s been really weird, but it’s been nice. But then I’m like, ‘Are you fucking delusional?'” She wonders aloud if she’d want to sleep with him again, then gags at the idea. “The thought of that is not that appealing.”

*Names have been changed for privacy reasons.