In our two most recent posts, we addressed certain safeguards that may improve mediation’s effectiveness when there is a higher than average level of conflict between participants, including considering a structured mediation process, and taking advantage of pre-mediation coaching. Today we will look at another common aspect of high-conflict divorce mediation: the existence of “power imbalances.” How do power imbalances tend to show up in divorce mediation, and what can mediation participants expect from a mediator in terms of safeguarding against the possibility that a power imbalance might sabotage a potentially successful mediation?

Power Imbalances and Divorcing Couples

Power imbalances in divorce are extremely common and come in many forms. Examples include:

• One spouse possesses more control over, or knowledge about, marital income and assets.
• Children have greater loyalty to one spouse.
• One spouse is still emotionally invested in the relationship, while the other is fully disengaged.
• There is a history of abusive behavior by one spouse.
• One spouse has a more dominant or aggressive personality and delivery style.
• There is untreated addiction or alcoholism in one spouse.

Power Imbalances in Divorce Mediation

Effects of power imbalances can range from marginal to extreme. In general, they tend to exacerbate emotional defensiveness and reactivity. The more severe an imbalance, the trickier it will be to have a successful mediation, and the more important it will be to have a skilled mediator who can help the participants navigate stormy waters. Severe imbalances such as a history of abuse may prevent mediation from being effective at all. If an abused spouse feels too afraid to stand ground, mediation cannot succeed. However, as we discussed in a previous post, in some cases a highly structured process is still the best available option. Addiction in one party tends to hijack power away from both parties, and unless the addicted party is in treatment, mediation is unlikely to be fruitful.

An important feature of power imbalances is that they are often not as they first appear. Multiple imbalances may exist, and in some cases they may actually cancel one another out. For example, early in a mediation, it often appears as though a high earner with a dominant personality holds greater power. As things unfold, however, it sometimes becomes apparent that the other spouse has a stronger emotional connection with the children, and/or a lower emotional investment in continuing the marital relationship. The high earner may in fact be taking rigid financial positions at least in part to try to hold onto a perceived single source of power.

How Mediators Can Address a Power Imbalance

It isn’t possible to equalize every imbalance, nor should that be necessary to achieve a positive result in mediation. It is not a mediator’s job to jump in and advocate for either party.  In fact, a mediator who jumps in precipitously on behalf of an apparently weaker party will almost certainly alienate the other party and sabotage the success of the mediation. By jumping to intervene, a mediator also risks misinterpreting the power interactions, which, as noted above, are often complex and subtle. On the other hand, if a mediator allows a flagrant imbalance to exist without acknowledgment, the weaker party may feel that the mediator is tacitly taking the stronger party’s side.

In many situations, a mediator can prevent power imbalances from destroying the effectiveness of the process by taking one or more of the following actions:

• Suggesting that each party use a consulting attorney. If necessary, attorneys can provide extra support by attending one or more mediation sessions. Participants need to take care to choose mediation-friendly attorneys, however, to minimize the risk that increased attorney-involvement may actually push the matter away from mediation and towards the courtroom.
• Suggesting that the parties use neutral experts. A financial neutral can review and summarize the marital financial scenario, and a child therapist can provide feedback and input regarding custody solutions.
• Neutralizing the ability of either party to dominate the other. The mediator can clearly establish ground rules and insist that both parties stick to such rules. The mediator can also carefully monitor talk time and not allow either party to dominate the conversation. An aggressive negotiating style is particularly amenable to neutralization by such techniques, as this type of style can be intimidating, but does not in and of itself reflect any actual power.
• Supporting self-efficacy in participants. If one party is putting forth most of the proposals and the other seems confused or fatigued, the mediator can call time and allow proposals to gel rather than allowing the latter party to be railroaded. If either party is continually being talked over, or is not expressing rights and needs, this should act as a signal to the mediator that the parties may need to take a break and focus on coaching, or perhaps have an attorney consultation. It can sometimes be helpful to have third-party coaching continue throughout the mediation process.
• Daring to broach difficult topics. In divorce mediation, emotions can eclipse logic to the point that resolution of even simple issues becomes impossible. If either party seems more willing to risk litigation than to entertain reasonable settlement possibilities, this is a sign that emotions have taken over. A mediator can offer participants the opportunity to defuse any emotions related to perceived power differentials by expressing perceptions directly to each other, and to demonstrate understanding by paraphrasing each other’s concerns. The mediator can then summarize and acknowledge all perceptions, while also expressing the importance of not allowing perceptions to get in the way of building mutually-beneficial solutions. Participants must understand that mediation is not an appropriate vehicle for deep exploration of past issues. If emotions are too raw to move forward after a brief intervention, it may be advisable to take a break to return to mediation coaching, or even to more in-depth personal therapy, before trying to continue the mediation.
• Being willing to terminate mediation.  Ultimately, if a power-differential is restricting either party’s ability to participate effectively, terminating the mediation may be the only feasible solution. An experienced mediator should be able to recognize when the process has moved past the point of no return.

How to Protect Yourself in a Power Imbalance

If you feel that power differentials will play a big role in your divorce settlement, and especially if you believe that you would be the weaker party, discuss this with potential mediators before making a hiring decision. Don’t go into mediation without first hiring a consulting attorney, and be sure to take advantage of pre-mediation coaching to practice self-determination and self-efficacy before entering the mediation room.

Are you interested in talking to one of our experienced mediators about your divorce? Contact us today for an initial consultation.