Addressing Power Imbalances in Mediation

One of the advantages of divorce mediation is that it allows both people in the relationship to come together and speak directly to each other — and just as importantly, to be heard. Mediation facilitates decision-making and encourages compromise, but there is one thing about it that makes some people nervous: how to deal with power imbalances.

Power imbalances can take different forms, such as:

• Knowledge: For example, one person could have a lot of information about the finances and the other person, very little. There could be unknown credit cards, bank accounts, car loans, or even mortgages.
• Verbal Ability: One person might be soft-spoken while the other is very expressive and forthright.
• Cognitive: One person might process information faster and be able to respond quickly — and the other person might be very contemplative and spend more time absorbing information.
• Children: One spouse may be the primary caretaker with an intricate knowledge of the kids’ lives and daily activities, while the other one plays more of a supportive role.
• Financial: This is especially true if one person is a stay-at-home parent who has not worked in years or one spouse has had more say over how money was earned, spent, saved, or invested during the marriage.

Imbalances such as these are not deal breakers for mediation. An experienced mediator has seen all of these types of power imbalances in her career, and will do her best to help balance things out in the mediation room with:

• the questions she asks;
• the information that is gathered; and
• the pace of the mediation.

To further facilitate the process, the mediator may try establishing strict and clear agendas for each meeting, so that everyone is on the same page. The mediator will encourage homework in between sessions, which could include having the parties talk to their attorneys about certain issues, or gathering information on their own.

Other ways of leveling the playing field also exist, such as using consulting attorneys to explain the law, discuss options, and review draft agreements. For the imbalances that are more personality-driven (say one person is more assertive and one person is more passive), divorce coaching could make the difference between a smooth or rocky process. If there’s a financial imbalance, a financial neutral can shed light on the financial situation from an unbiased vantage point — including earning potential and living expenses.

These divorce professionals share the goal of helping their clients be better advocates for themselves during the mediation sessions in addition to the specialized knowledge they offer.

Mediation is a good, worthwhile process that is worth considering for many couples. Don’t assume that power imbalances leave participants with no other choice than the prospect of (expensive) litigation where privacy, convenience, and flexibility become a thing of the past. To learn more about why it’s a good idea to make court your last resort, contact me.

Vacca Family Law Group

One Grand Central Place
60 E 42nd St #700
New York, NY 10165
avacca@vaccalaw.com