Readiness for Mediation Part II – Power Imbalances

Last month we talked about choosing mediation in a high conflict situation, and how taking certain steps in advance might improve the chances of a successful outcome. High conflict, however, is not the only reason someone seeking a divorce might question the suitability of an amicable process. There are a few other scenarios that also raise such questions. Many of these have something in common. They all involve some form of power imbalance.

Power Imbalances in Divorce

A power imbalance in divorce is any dynamic that gives one party a stronger initial negotiating position than the other. It might be a glaringly obvious dynamic. It might also be something you are unaware of until you realize that you just do not believe that you would get a fair outcome if you were to sit down and negotiate with your spouse.

One of the most common power imbalances in divorce is financial disparity, where one spouse has more assets and earning power than the other. If only one spouse is worried about paying a lawyer or being self-supporting after the divorce, the imbalance is obvious. Power imbalances can also be more subtle, however. For example, one spouse may have a domineering personality or even a personality disorder. One spouse may remain more emotionally attached to the relationship, creating a potential vulnerability to overreaching by the other spouse. One spouse might have more power in a battle over parenting time because of a stronger bond with the children. An untreated addiction in one spouse might not initially seem to confer power on that spouse, but it is easy to see how it could take power away from someone who is trying to negotiate fairly and logically with the addicted person.

Unaddressed power imbalances in divorce can be a serious problem. Unfortunately, it is not possible to equalize every imbalance. If a personality disorder is severe, or if one spouse is abusive, this can prevent mediation from being effective at all. In most cases, however, a skilled mediator can do a lot to level the playing field.

How Mediators Can Address a Power Imbalance

Mediators must remain neutral. This means they cannot attempt to rectify an imbalance simply by jumping in on the side of a party who appears to be at a disadvantage. In most cases, however, the same safeguards that tend to be effective in dealing with high conflict in mediation will also be helpful when dealing with power imbalances. As we noted last month, these safeguards include pre-mediation coaching, and a more structured mediation process. The following can be especially helpful:

Participation by consulting attorneys

Mediators generally recommend consulting attorneys in all divorce meditations. This becomes an even more important precaution in the presence of a significant power imbalance between the parties. Unlike the mediator, who must remain neutral, your consulting attorney is there specifically to protect your interests and advocate for you. Ordinarily, mediation attorneys work mainly behind the scenes, as a resource for parties to consult with between sessions. A mediator who sees an imbalance around one or more issues might suggest that parties bring their attorneys to sessions focusing on those issues. Bringing attorneys to mediation can significantly increase costs. If attorneys attend only a session or two, however, costs should still compare favorably to litigation.

Use of experts

When one party starts with an advantage, the other party needs to be able to rely on someone to present the facts in a neutral and objective manner. If the advantage is financial, a joint financial expert can fill this role. In some cases, a joint expert might not suffice, and each party may need to hire their own independent expert. A consulting attorney can provide guidance in this area.

Clear ground rules

A mediator who is used to dealing with power imbalances will insist that both parties stick to firm ground rules. If one party is dominating the mediation, additional ground rules beyond the usual might be necessary. For example, the parties may want to place limits on the amount of time that either of them can talk interrupted. This can prevent either party from steamrolling the other.

More frequent caucuses

As a rule, most of the time in divorce mediation, the parties speak to each other face-to-face. In a situation involving a significant power imbalance, the mediator should be willing to spend more time speaking to each party separately. To maintain neutrality, however, it is critical that the mediator’s time with each party remain the same.

Protect Yourself in a Power Imbalance

There is no question that dealing with a significant power imbalance can make mediation more challenging. The truth is, though, that power imbalances also make litigation more challenging. Choosing mediation is often still the better approach, provided that you have both a mediator and a consulting attorney with experience handling such situations. Taking advantage of pre-mediation coaching to build your negotiating skills before beginning mediation can further buttress your odds of success.

Virtual Mediation for Divorcing Couples with Power Imbalances

We are all looking forward to a time when it is normal once again to meet face-to-face across a table. Nevertheless, as we noted last month, there is no reason to delay mediation until that time. The virtual format lends itself well to the type of more structured process than tends to be helpful both in cases of high conflict and cases of power imbalance. There is nothing to prevent virtual participation by either consulting attorneys or experts.

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