This year Women’s History Month coincides with the one-year anniversary of the COVID-19 pandemic. There could not be a better time to discuss how women, and especially mothers, have been affected by the pandemic. In the past year, there have been an overwhelming number of articles on the disproportionate impact of the pandemic on women, and especially women of color. As a woman, a mother, and a mediator and arbitrator, I have spent time thinking about how these issues affect me and the dispute resolution profession.
Among the many articles on this topic, the New York Times’ series “The Primal Scream” affected me deeply. It explores the pandemic’s effect on working mothers and discusses the systemic challenges reflecting a society that does not support working families. One particularly chilling article provided a ground-level view into the lives of three women who are balancing their careers with having kids who are learning remotely.1 As the pandemic has exposed how our current system is stacked against working mothers, it is worth considering what this means for the dispute resolution profession and the clients and advocates we serve.
The pandemic has triggered the loss of childcare and the added responsibility of managing online school for many families, as 65% of households have reported using online learning during the pandemic.2 As these conditions make it more difficult for people with children to balance work and life, the hardship for those with school-age children is even more pronounced. These challenges are even more pronounced for women of color.3 Although fathers are taking on more responsibilities, these burdens disproportionately fall onto mothers.4
Many of the parties and lawyers I encounter in my cases have children at home. Although most of my mediator and arbitrator colleagues no longer have young children at home, a growing number of us do. I am quite fortunate. I have been able to work as a mediator and arbitrator from home, with technology making the transition almost seamless. My kids are old enough to navigate remote learning without much assistance. My husband is supportive of my career and shares in childcare and household responsibilities. Yet every day requires a delicate dance about whose commitments are more pressing; who really needs quiet time to work; and who will make sure that the kids log in to their classes, do their homework, and eat lunch. And who will walk that pandemic puppy?
While videoconferencing platforms make virtual alternative dispute resolution (ADR) possible, there are some real-life difficulties behind the screen. Being able to participate in a day-long mediation or arbitration with children at home takes tremendous planning and effort for parties, lawyers, and neutrals. I have had parties who are mothers appear in virtual mediations on their phones from their cars or from their lawyers’ offices wearing masks, sometimes with young children in tow and on-screen. In one case, an attorney (and father) conducted the entire mediation from his porch, which was the only quiet place he could find. Counsel with kids in online school have struggled to maintain sufficient internet bandwidth to accommodate everyone’s needs, which can interfere with virtual sessions.
While the pandemic has wreaked havoc on most everyone’s lives, many people may not be aware of the extra onus on working parents. In many mediations and arbitrations, the participants do not know each other well or even at all, and the proceedings tend to be more formal (especially arbitrations). It is understood that everyone has to adjust their schedules to make time for a mediation or arbitration; this was true before the pandemic. But the increased burdens on parents, and particularly mothers may create new inequities.
One trend I have observed since the pandemic started (and even before) is that fathers are more likely to raise issues concerning their childcare responsibilities than mothers. It has been noted that men advance further in their careers as a result of having children whereas women are more likely to suffer setbacks.5 Despite all of the progress women have made, fathers, who are still more likely to be perceived as breadwinners, feel more comfortable speaking up about their childcare demands, while mothers, more likely to been seen as caregivers, are concerned about appearing less committed to their careers if they raise these issues in the workplace. This trend continues to play out in the virtual ADR world, where the barriers between work and life have been broken down.
However, virtual ADR may also provide participants with additional flexibility that can benefit mothers. In a recent mediation that went late, an attorney and mother needed to take a break to put a young child to bed, and she then returned to the Zoom to finish hammering out the settlement details. Obviously, this could never have happened in an in-person mediation. Perhaps there is an opportunity for more openness and candor about our increased burdens to be more professionally acceptable. Dogs barking is a familiar aspect of the Zoom experience, but are we (mothers and fathers) now more comfortable asking to take a break to comfort to a child exhausted by a day of online classes or to check homework to make sure that a struggling child does not fall further behind?
While virtual ADR has been a success, especially for JAMS mediators and arbitrators, and enabled our profession to carry on, and even thrive, during the pandemic, we must be mindful of the challenges this environment presents for those with children. This is especially true in light of the lack of support provided to families, and the disproportionate impact on mothers. That said, ADR is meant to be a flexible process, with each case tailored to the needs of the parties. We can also use the virtual environment to find additional opportunities to adjust the process to accommodate working parents. As dispute resolution professionals, meeting the needs of the parties is our obligation.