This issue of Dispute Resolution Magazine focuses on especially timely difficult conversations. Like many of you, for the past year we have been starting almost all our telephone, email, and Zoom conversations with comments such as “I hope you are well” and careful inquiries about the health of friends and family members. COVID-19 has changed everything, starting with how we connect with each other, and we think it’s important to reflect on what we have been through, collectively and individually, what have we learned from the pandemic, and what we need to know to move forward. The articles in this issue look at how families and businesses have dealt with the uncertainty, grief, and conflicts that have developed in conjunction with the pandemic and the vaccine.
The virus has caused great devastation and prompted a wide range of difficult conversations, from discussions in businesses forced to fire employees to devastating farewells, conducted over iPads, to parents and friends who have had to die alone, with only devoted and exhausted nurses at their sides, in ICUs. Because so many people have suffered loss, we find California attorney and mediator Dana Curtis’ piece on grief – and how mediators can benefit from a deeper understanding of its impact on the parties and the process – especially thoughtful. Curtis focuses on the importance of mindfulness about the parties’ and the mediator’s own grief, and her article is all too relevant to the collective and individual grieving we have experienced this year.
Alternatives to traditional litigation can help with personal and professional conflicts, especially in a time of limited in-person court hearings. Lisa Nerenberg, the executive director of the California Elder Justice Coalition, writes about the promise of restorative justice programs in elder abuse cases, with processes that allow elderly victims to ask for what they want to happen to their alleged abuser. Nerenberg suggests that many times those who have been abused want their relationships repaired and their losses recovered, not for the family member to be punished or jailed. Restorative Justice programming, she notes, can create a space for this to happen and provide important opportunities for victims to participate.
The pandemic has affected all families, whether through death or illness or (less severely but still significantly) the need to maintain distance from loved ones. For many families with ill, older, or mentally disturbed family members, the impact has been catastrophic. Frederick Hertz, an attorney and mediator with an office in Oakland, California, who is co-editor for this volume, interviewed professional administrators in nursing homes and ombuds responsible for advocating for patients and families and learned how pandemic rules and policies have prevented family and friends from visiting loved ones in nursing homes or hospitals and stopped them from advocating at their bedsides. Ombuds and advocates, many of whom are themselves in high-risk groups, have had to figure out how to balance safety, well-being, and oversight.
Benjamin Widener, a New Jersey-based attorney who specializes in labor and employment law, writes about vaccines in the workplace, looking at how the law has developed over the last six months and how dispute resolution processes can help employers. He recommends that employers not mandate the vaccine without an easily understood plan that anticipates accommodations as well as employee resistance and concerns.
We do hope that you and your families are well, and we also hope that as we navigate the many difficult conversations still to come, we all consider the lessons from the pandemic and how they can help guide our conflict resolution practices.
– The Dispute Resolution Magazine editorial board