supporting our family law clients in virtual dispute resolution


by Alexis Squier, a Principal at Strata Law Group, PLLC

Like so many colleagues, I have engaged in a number of meetings and Collaborative divorce sessions in the virtual environment over the last few months, and I have been intrigued by the behavior and impact on the participants when we use virtual platforms for legal negotiations.  The nation’s delayed recovery and practitioners’ growing comfort with remote work systems mean that we may be using virtual negotiation for quite some time into the future.

Preparing our clients for the emotional components of a virtual meeting is as important as making sure they have the technical tools needed to participate.  I recently gleaned the following tips from a panel of highly regarded Seattle-area mental health professionals during a discussion organized by King County Collaborative Law:

Tip One.  Prepare for the Online Disinhibition Effect.  This term was coined by John Suler over 15 years ago and describes the looser social restrictions we might feel online compared to what we experience in face-to-face contact.  When engaging with others while appearing only as an email address or even a pseudonym, we may be less inhibited by social graces that would otherwise encourage more polite interactions.  Online we feel less vulnerable and thus, less accountable. The same effect can occur in negotiation on a virtual platform.  The separation of space that a Zoom meeting offers on a two-dimensional screen can embolden some people to say things they might not say to a person sitting across the table in the same physical space.

Although we are not managing the “toxicity of anonymity” in virtual dispute resolution, we are managing the impact of not having to address the immediate reaction of the other person while in the same physical room.  Sometimes feeling emboldened can be a good thing, especially for people who may struggle with self-expression or who need a safe environment to speak up.  Disinhibition can also be unhelpful and sometimes toxic.  When mediating or working in a Collaborative session, bringing this concept up proactively with your client may be helpful. How might your client respond to the distance that the virtual world has to offer in this meeting?  How has she/he experienced this effect in the past?  What can you do to help manage the effect if either your client or the other client or participant becomes too aggressive or becomes too passive in the face of the other’s aggression? Raising awareness of the Online Disinhibition Effect may help our clients better manage these challenging meetings in the virtual world.

Tip 2Use Your Interpersonal Skills.  When a client is in distress, we as lawyers can feel uncomfortable about giving emotional support – and that can be exacerbated when the client is distanced on screen. In preparation for the meeting, discuss areas that are likely to be emotional triggers for your client and ways they tend to respond to such triggers.  Will they shut down?  Will they lash out? Strategize with your client about how best to ensure they will feel supported and heard while maintaining respect for the process. During the meeting, pay close attention to signs that your client needs support, which can be harder to detect online and will need to be more intentional when you are not sitting in the same room.  Ensure break-out rooms are set up at the outset of the meeting, then use those break-out rooms to have a private conversation with your client when needed. Validate and normalize their feelings and experience. During a global pandemic, we are all experiencing stress that may cause more extreme feelings. It makes sense that both lawyers and our clients feel more fear and anxiety. Use active listening to fully attend to your client’s story without judgment and without going to resolution, allowing them the opportunity to simply be heard. Use reflective listening by mirroring their experience in your own words to show your understanding, again without judgment. This approach can give clients the space to gain better understanding of their own experience in order to move through emotional triggers that might otherwise cause barriers to resolution.

Taking the time to work through the “hot spots” in a negotiation is just as important in virtual as in in-person meetings. We need to be aware of these areas and not afraid to dig in just because we are separated from our clients.  On screen, our clients can also benefit from our remembering to use those active and reflective listening skills to connect with and reassure them of their ability to move through a challenging negotiation.

Tip 3.  Shorten Sessions and Take Breaks.  We have been hearing more and more about “Zoom Fatigue” and the brain’s limitations associated with the increase in virtual meetings. Seeing multiple people on a two-dimensional screen for hours at a time is taxing on the brain. We are deprived of experiencing body language of participants and of peripheral vision that allows us to sense the feelings in the room.  Instead, we are looking at individual faces and are being seen more intensely, as well, without the whole package of non-verbal cues that helps our brains interpret those emotions subconsciously. We simply have to pay more conscious attention when we are on screen. When we add that layer of brain exhaustion to the exhaustion inherent in major decision-making, we are asking a great deal of ourselves and of our clients to make practical well-reasoned decisions in the virtual setting.  Clients who are in an emotional discussion making big decisions may become exhausted sooner and may simply need to vent their anger or frustration when triggered. It is better for the whole group to take a break than for one person to walk away from the camera.

Make a plan with clients ahead of time to give a signal that it is time for a break.  Ask your client, “How will I know if you need a break?”  Normalize taking breaks ahead of time to allay fears that this is a big deal; it is not. Use break-out rooms to check in privately with your client if needed.  Once in a break-out room, you can even suggest that your client take a walk out of the room where they are sitting and come back when he or she feels ready to participate again (do this from a break-out room). Keeping the meetings shorter is important, as well. I find that two hours is about the longest most people can keep their attention in a meeting and be productive. I have been scheduling more targeted meetings that are shorter in duration. Some folks are even scheduling “movement” breaks every 30 minutes or so. Providing the space and time for clients to take care of themselves emotionally is worth the extra time it may take in the meeting; they will very likely be more productive.

Remember that our clients are making decisions about the most important issues in their lives; decisions that will impact their financial comfort, their housing, and their relationships with their children.  When they are making these decisions alone in a room looking at a screen of faces, they deserve our extra attention to their well-being and their ability to fully participate in the dispute resolution process.

Resources:

https://www.nationalgeographic.com/science/2020/04/coronavirus-zoom-fatigue-is-taxing-the-brain-here-is-why-that-happens/

https://www.scientificamerican.com/article/tough-choices-how-making/

https://www.adrtimes.com/library/2011/11/22/empathic-listening-dispute-resolution.html