On May 8, 2020, almost two months to the day since the beginning of quarantine, a study group made up of AFCC-CA members, a Los Angeles-based multidisciplinary consortium of professionals who are dedicated to helping parents and children experiencing separation or divorce, held its first virtual meeting. Fittingly, attorneys Fern Topas Salka, CFLS, and Jeffery Jacobson, CFLS, together with mental health professionals Nancy Satenberg, Ph.D., and Vi Ballard, MFT, examined “Major Changes to Family Law Practice in the Zoom Era and Beyond: A Discussion of Emotional and Process Changes Taking Place as a Result of the Pandemic.”
In a world full of distress and marked by a feeling of loss, the key word the speakers emphasized was MORE. Distress shrinks people’s window of tolerance and they respond by becoming more of what they already are (e.g., anxious, introverted, dramatic, risk tolerant or risk averse, even more violent). Most of all, stuck in their homes with children who are extremely upset and maybe still sharing a home with partners with whom they are dissatisfied, they become more dissatisfied and lonely. In the immediate moment, professionals can help such unhappy clients by normalizing feelings and offering ways to stay socially connected; but, ultimately, we may expect to see a significant increase in PTSD in the future.
Incompatible personal responses to the trauma of the pandemic and its resultant quarantine have already begun to create timing issues for couples who are not faring well with each other. There are those who want to allay their anxiety by asserting control and moving forward and those who want to do nothing. Unsurprisingly, there are also those who want to use the crisis to slow the divorce down or to separate one parent from the children.
Professionals dealing with the pandemic are also experiencing their own grief and loss. There is more isolation, purposelessness and even fear about an uncertain future about the flow of clients and the lack of technological expertise.
Transitioning to a Zoom practice also creates significant changes in the settlement process itself. It is harder to assure confidentiality on a Zoom call since sessions can be surreptitiously recorded, kids may be nearby, and third party eavesdroppers can go undetected.
Conducting conferences via Zoom also creates boundary issues. Sessions conducted from the professionals’ personal living spaces may make it difficult to keep professional and personal separate. This problem, however, may turn out to be a welcome change, especially for women, who have long complained that it was difficult and inappropriate to have to pretend they had no personal lives while they operated in the professional arena. Now that men as well as women have visible children, dogs and even bathrooms, the artificial barriers that troubled women may come tumbling down for all of us.
There are new border issues for clients, too. Sharing the same house, sometimes the same bed (even during a settlement meeting), makes it complicated to move to a business-like rather than intimate relationship. Compounding the problem is that this is happening at a time when parents need more information, transparency and cooperation than ever.
As to the longer-term impact of what we all hope will ultimately resolve itself to permit more in-person interactions, there are three major questions to which we do not yet have answers:
- Will the many examples of couples who attempt mediation and are able to cooperate as they separate during the pandemic have a lasting impact on the public in spreading the use of CDR? We can reasonably speculate that such increased exposure to a “new” way of separating, together with the major backlog in the courts as a result of closure and reopening restrictions, will likely result in an increase in the demand for consensual dispute resolution (CDR). While this is a generally a very welcome change, there is a concurrent risk that many attorneys who are untrained as mediators will try to do the work without acquiring the skills, and that this will sully the public’s impression of the process.
- Will more attorneys be open to following the lead of many more progressive jurisdictions where CDR becomes PDR (Primary Dispute Resolution)? In California, acceptance of CDR by lawyers and even the public has come about very slowly and reluctantly. In 2000, a series of high-level proposals to revamp our system to keep up with progressive jurisdictions such as Australia and British Columbia was roundly defeated by the efforts of trial lawyers. Today, many jurisdictions around the world have surpassed this state in promoting CDR not as an alternative and lesser-than option, but, rather, the first place the process must begin. Perhaps this time, with the help of mental health professionals, financial neutrals and a growing army of attorneys who are learning more collaborative, solution-oriented, interest-based skills, we will be able to convince the public and our professional colleagues that real “protection” for families will not come from an adversarial approach.
- Will we design a better system for families in transition that includes more suitable ways to separate and make parenting determinations? The changes that are needed must be systemic. We need a system that deals with all aspects of the separation (legal, financial, emotional) from the very outset of a case, provides information and resources for these aspects and encourages and offers methods of solving problems without winners or losers.
The changes that are being wrought by the coronavirus crisis provide an opportunity to make long-needed personal, professional and systemic changes. The speakers on this panel challenge AFCC and other organizations who deal with divorce and separation to become active participants in formulating such important change.
FERN TOPAS SALKA, J.D. is a sole practitioner in West Los Angeles. She is a Certified Family Law Specialist, former Chair of the Family Law Section of the Los Angeles County Bar, the Family Law Section of Women Lawyers of Los Angeles, and the CDR Sub-Committee of the Family Law Section of the California State Bar. She is co-founder and present Trustee of the Los Angeles Collaborative Family Law Association (LACFLA) and was a select fellow of the American Academy of Matrimonial Lawyers. Ms. Salka’s proudest professional achievement is the creation of the State Bar’s CDR Committee Panel of Adult Children of Divorce, which has been presented to the family law judges of Los Angeles County, attorneys, mediators, mental health professionals, teachers, clergy and parents.
Fern Topas Salka, J.D. is a sole practitioner in West Los Angeles. She is a Certified Family Law Specialist, former Chair of the Family Law Section of the Los Angeles County Bar, the Family Law Section of Women Lawyers of Los Angeles, and the CDR Sub-Committee of the Family Law Section of the California State Bar. She is co-founder and present Trustee of the Los Angeles Collaborative Family Law Association (LACFLA) and was a select fellow of the American Academy of Matrimonial Lawyers. Ms. Salka’s proudest professional achievement is the creation of the State Bar’s CDR Committee Panel of Adult Children of Divorce, which has been presented to the family law judges of Los Angeles County, attorneys, mediators, mental health professionals, teachers, clergy and parents.