In our last few posts we have been following three couples attempting to tailor divorce mediation to their own specific needs. Today we are looking at Eric and Eva, a couple in their early forties who have been married for 15 years and have two young children, ages 10 and 12.
In our introductory post, we learned that Eva blames Eric for the breakdown of the marriage. She describes him as a “workaholic” who has long been disconnected from the family. Eric does not contradict this, but says he now wants things to change. He is seeking not just joint legal custody of the children, but also 50/50 shared physical custody. This makes little sense to Eva, who observes that by his own admission, he has never spent much time with the children. She thinks joint legal custody is fair, but does not see shared physical custody as a realistic option. Eric, however, is adamant about this.
Eric and Eva will have to resolve not only their child custody dispute, but also significant economic issues, similar to those we recently discussed in Katherine and Julian’s case. In our next posts, we will look more closely at these issues and their potential resolution through mediation. Today, we are going to consider the threshold question of whether or not Eric and Eva are good candidates for mediation.
The Potential Impact of Power imbalances
Unlike Katherine and Julian, Eva and Eric have already made a firm commitment to divorce. They spent two years in couples counseling without significant progress. Six months ago, they called it quits for good, and Eric proposed moving on to divorce mediation. As an attorney, he knows that this is their most cost-effective option for trying to settle their differences. Eva, however, has expressed some serious reservations about going to mediation with Eric. She is concerned about two types of power imbalance, both of which she fears could put her at a significant disadvantage in a negotiation setting.
Economic Power Imbalance
Eva’s first area of concern is similar to one that Katherine and Julian confronted. There is a significant discrepancy in financial means between the two parties. Eric is a corporate attorney earning approximately $200,000 per year, while Eva is an artist with an average annual income of only about $30,000. As we previously discussed, where one party has greater financial resources, the weaker party sometimes has trouble holding ground in a mediation setting. This concern, however, rarely justifies moving to court. Litigation tends only to exacerbate both the level of discord and the financial pressures on both sides. Like Julian in our previous example, Eva would be wise to confront her weaker position by hiring a good consulting attorney to help her define and maintain firm positions. If necessary, she can further bolster her confidence by asking the attorney to sit in on one or more mediation sessions.
It isn’t just the financial disparity that is troubling Eva. She is more concerned about Eric’s ability to wield power through his forceful personality and his training as a litigator. Her own personality is just the opposite, she says. Her default position is to give in. She believes, in fact, that it was this personality difference more than anything else that ultimately doomed their marriage. Eric’s aggressiveness eventually wore her down. Now she pictures herself going into mediation and just letting him have whatever he wants. She wonders if she would be better off in a courtroom with a zealous attorney to protect her.
Eva’s concerns are not uncommon, and she does need to take them seriously. A very assertive party can mow right over a more conflict-averse party in negotiations. A person doesn’t have to be a trained litigator to have a confrontational style like Eric’s. It’s easy to see though, how his training and background could be especially intimidating.
At the most extreme degrees of this kind of personality conflict, mediation will not be an appropriate venue. For example, if there is any history of domestic violence, including emotional abuse, mediation might not be the best choice. If Eric is unable to see Eva’s side of things, or if he expresses an unwillingness to budge in his demands, these would also not be good signs. In most cases, however, a skilled mediator can work with couples experiencing this kind of conflict and help maintain an even playing field between the parties.
Eva needs to make sure that whoever they hire as a mediator will be vigilant in enforcing mediation ground rules. She is also a good candidate for pre-mediation coaching. She may want to consider keeping a divorce coach handy throughout the mediation process. As noted above, if she feels the need for even more support, she can bring her attorney into one or more mediation sessions.
Mediation and Children
Would Eva be better off going straight to court? Probably not. Mediation has much to offer this couple, particularly because they have young children. Children are especially sensitive to family conflict, which tends to get worse in the course of litigation. One of Eva’s greatest concerns, however, has to do with Eric’s adamant position on shared custody. She is uncertain how to communicate her feelings and beliefs on this issue. Eric, meanwhile, is frustrated by what he perceives to be Eva’s rigid and unfair positions regarding his parenting role.
There are steps that both Eric and Eva can take in mediation to increase their odds of success. Mediation is an excellent venue for crafting parenting agreements that address the needs of all members of the restructuring family. We will talk about some appropriate steps in our next post.
Do you have questions about whether or not mediation is the right route for you in your divorce? Contact us today for a free consultation.