Massachusetts Collaborative Law

While over the years I have facilitated many collaborative cases in-person, only recently have I completed my first virtual, collaborative divorce. Under the very best of circumstances, this would have been a highly challenging collaborative undertaking. The necessity to shift from an in-person to a virtual process added a new layer of complexity to the case. Working virtually brought the professional team unique opportunities to problem solve and learn together in order to achieve resolution. The clients also rose to the occasion, moving through many difficulties and challenges, and were able to come to agreement on all issues.  

 

I present my understanding on how to make the shift from in-person to virtual collaborative divorce work, in two parts; Part One is focused on the challenges professionals and clients may face when working virtually, and, Part Two, includes both the solutions used to complete this particular case as well as some further ideas on how to make the shift and successfully collaborate, virtually. Please note that much of the information contained herein can also be applied to a virtual vs. in-person divorce mediation process, too. (It is hoped that your virtual experiences, concerns, and solutions will be shared here, too, as we all collaborate in bringing our best skills to this new way of working).

 

 

Working virtually includes a learning curve for every professional (which continues) but also requires adaptations by clients. For starters, we all needed to find our ‘sea-legs’ for this new type of journey, from setting up comfortable and efficient virtual meeting spaces (for standing or sitting?), clarifying boundaries for timing and privacy, and in accounting for the energy levels and effort needed for virtual work.

 

Other challenges were posed by the differences in and limitations of virtual (vs. in-person) communications. On all fronts, our nimble professional team rose to the occasion with mindfulness and creative problem solving to support our clients in achieving a collaborative success. What follows are my observations regarding the obstacles we faced. 

 

 

 

So much of the meaning derived from our interpersonal communications is understood via eye contact, facial expression and tone. Actions such as looking away/breaking eye contact, raising an eyebrow or changing speaking volume or tone mid-sentence, etc. hold meaning and inform our understanding of what is being said, perhaps as significantly or at times even more so, than the words themselves. Video conferencing, I have learned, limits our capacity to detect any of these. There seems to be a loss of detail or flattening of the visuals (of people’s faces, features, and expressions) as well as in the audio (which has an impact on the sound, inflection, and tone of the voices we are hearing). Additionally, we cannot make real eye contact or decipher who participants are actually looking at, when meeting virtually. 

 

As a consequence, it is difficult, perhaps impossible, for many of us to read nuance in people’s communications over video chat. Without eye contact or clearer facial expression as well as detailed tonal voice changes, it can be hard to understand exactly what a person is intending to convey. Just like the misinterpretations that can happen between clients (even between a professional and a client) based on the limitations posed by email or text messaging, so too does this happen with virtual communications. An increase in follow up or check in questions was needed throughout our meetings to fully understand what our clients were experiencing and truly trying to say.

 

 

In person, we can look away from one or two meeting members as needed, in an effort to give ourselves a bit of a break or a pause from the action, to reflect for a moment, or to simply take a breath. This can be harder to achieve on a video call particularly when a grid of 4 or 5 faces seem to be staring at us. The fishbowl effect, I believe, in part accounts for why these types of interactions/meetings are so much more draining than the in-person variety. This seems to be widespread and even impacts children as I have heard from numerous parents about their little ones resisting the use of video communications, particularly in a group. Many children voice concerns about being on display/stared at or otherwise feeling uncomfortable, agitated and intruded upon during virtual interactions.  

 

 

As has previously been observed and written about by many, it can be a challenge to control impulsivity when engaging in any form of communication where we are not physically in each other’s presence. For a variety of reasons, which cannot be expanded on here, we are all subject to an increased temptation to do or say things that we may not truly mean or that we have not fully thought through when using email, text or even the telephone vs when we communicate in-person. This can be heightened during video communications as the somewhat depersonalized and fatiguing nature of this format can make it easier to relax our filters and just do or say whatever comes to mind.  

 

Additionally, being deprived of the important sensory information we are accustomed to receiving, in-person, can make interactions seem unreal and thus render us less empathetic. This can increase the likeliness of less than helpful word choices or actions. In extreme, it can lead to snap decision making or other process destructive behavior. 

 

 

Clients may struggle to find or control their voices during any type of divorce meeting, be it in-person or virtual. Zoom cuts out voices other than that of the current speaker which can make the ebb and flow of conversation less natural and more stilted. This is particularly challenging for clients who have demonstrated difficulty in making their needs and wants heard (especially to a spouse). Conversely, those who generally have a lot to say, can more easily dominate conversations as the audio cuts out other speakers who may be slower in responding. 

 

 

Additionally, movement from item to item of the agenda poses unique challenges in virtual meetings. Whereas, in-person, the meeting flows rather seamlessly from topic to topic as clients can see the professionals quietly reaching for a document or moving to a different area on their screens as each agenda item is introduced. This is quite different virtually. As clients cannot see the professionals reaching for the next document or file, it can appear, temporarily, that they are not doing anything at all.  In our case this contributed to client anxiety (and agitation) and also resulted in one client feeling undue pressure to fill the silence with words.   

 

 

Clients working virtually from home (professionals too) may feel less inclined to plan transition time between activities. As there is no change in location or commute, the natural breaks that usually afford us some psychological down time between activities are removed. Dashing directly from work activity to a collaborative team meeting without pause may seem to be an efficient use of time. However, the impacts of not allowing for an opportunity to ‘come up for air’ or to simply be still for a moment between meetings can range from attentional difficulties to the depositing of unrelated, residual feelings into the current agenda/meeting. 

 

Additionally, scheduling work and a divorce meeting back to back, for managers, salespeople, bosses and the like, may not allow for the important shift from the work roles of director, decider or persuader to collaborator and cooperative team member.