A Silver Lining for Family Law Practitioners and Litigants in These Uncertain Times

Last updated April 24, 2020

The paradigm of practicing family law has changed dramatically since practitioners have been presented with the concerns of social distancing as a result of the Covid-19 pandemic. Those concerns have resulted in innovations that benefit judges, attorneys and particularly clients in terms of efficiency and lower costs.

When the pandemic began, court appearances for trials, in-court case management and settlement conferences were adjourned without date, creating delays for litigants and concern among practitioners. No new dates were being scheduled by the court. Arbitrations were adjourned, without date. Mediations that had been ongoing were also adjourned due to the need for social distancing, rather than meeting in a law office conference room to resolve all issues. Family law practitioners who had relied upon in-person, face to face communications in court and with clients had to meet the challenge of advocating for their clients in the context of a ‘new normal’.

Challenges are always met with innovation and creativity, and the challenges facing family law practitioners have been no exception. Gradually, in addition to being closed to the public, the courthouses were closed to judges and courthouse staff, necessitating conducting court business remotely. At first, a judge would simply conduct a conference by way of telephone. Involvement of two attorneys, two clients and the judge in a telephone conference call had always been problematic, however. The judge had difficulty controlling when an attorney was arguing and how long that attorney was permitted to speak; it was difficult if not impossible for the judge to interject and to be heard. The judges then began scheduling ‘Zoom’ conferences and motion oral argument: virtual court appearances. In doing so, a judge is able to maintain a regular schedule for appearances and hear and decide motions on a timely basis, without adjournment. Most impressive, however, has been the efficiency and cost-effectiveness of a virtual court appearance, for the attorneys and the clients. Travel to the courthouse and parking is eliminated. Waiting in the courthouse for the judge to be available is eliminated. Oral argument is generally heard when scheduled. A judge is free of the distractions that he or she might experience in a courtroom, delaying the proceeding. The general time frame for the appearance is established in advance. The parties appear and are sworn in, participating in the entire proceeding, in their homes. Attorneys argue on behalf of their clients as they would in a courtroom, with the added advantage of being able to clearly view each speaker. A ‘Zoom’ family law trial or plenary hearing with the direct and cross-examination of witnesses, the introduction of documentary evidence and impeachment creates unique challenges for the judge and the attorneys. Those challenges, however, will be overcome.

Virtual mediation is also an innovation that is a cost-effective and productive way of resolving family law disputes. Sessions can be conducted at the convenience of the parties, early or late, to meet any child care concerns. Mediation is conducted when scheduled, with the mediator conducting the session and counsel and the parties participating in-person, at home, as they would in a law office conference room. If an attorney and his or her client wish to confer privately, out of the presence of the other participants, they can simply leave the Zoom session and rejoin utilizing the same identification number and password. The session then continues until the parties have arrived at a resolution of all issues. The mediator then prepares the customary Memorandum of Understanding, to be discussed and converted to a Marital Settlement Agreement.

Because these virtual innovations benefit the judges, the attorneys and the clients in terms of efficiency and lower costs, I believe, thankfully, that these innovations will become part of our regular court practice. As a mediator, I will continue to utilize virtual mediation as I have done for the past weeks with positive feedback from all participants.

CSG’s Family Law Group is closely monitoring the current situation and assessing its impact on family court procedures. The Group – comprised of six seasoned attorneys focusing primarily on matters involving divorce, child support, custody, prenuptial agreements, alimony, domestic violence, arbitration, mediation and collaborative law – will continue to keep you apprised of new developments as they arise.

For additional information pertaining to the coronavirus outbreak, please visit CSG’s COVID-19 Resource Center.

This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.

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