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To Mediate or Not to Mediate: The Question of Power Imbalance, Part III

Rachel Alexander Aug. 15, 2017

{3:42 minutes to read}
Litigation and Power Imbalances


Safety is essential always, and certainly in mediation, where a degree of candor, contact and exchange are generally required.

So, if the mediation environment is unsuitable, what then?

Entering litigation is not necessarily the answer. Troubled relationships present issues in any forum, but litigation can exaggerate and worsen power struggles and psychic issues between parties. A mediator is trained to neutralize power imbalances; a litigator trained to create them.

  • Litigation can exacerbate the stress points in personalities and relationships.

  • Litigation can quickly bring out the most regressed fight or flight (usually fight) responses in litigants.

  • Litigation is an engagement in a power struggle, now with more players, investment, and consequences.

For parties already struggling to assert their power or free themselves from subjugation, the courts are an inhospitable theater for the drama to play out. It’s difficult not to feel attacked when you are either a plaintiff or defendant. (And actually being attacked!) Parties can feel particularly triggered and retraumatized by their involvement in a contested action.

When a client needs an advocate—when a spouse is uncooperative, unpredictable, aggressive, unreasonable and unable to engage constructively—it may be necessary to retain counsel.

So, can I have an attorney without entering litigation?  

A resolution-oriented, mediation-friendly attorney can help facilitate a settlement rather than take you into battle. Here is where selection is paramount. All attorneys are not equally oriented to holistic resolution, but rather trained to soldier into conflict. Through their combat orientation, they approach divorce as a win/lose enterprise. The legal system is organized around this as well.

At the risk of repeating myself:

Where families, intimate relationships, and children are concerned, putting them through litigation is like feeding them into a meat grinder.

I think this well crafted image speaks for itself.

Mediation-trained, resolution-oriented attorneys generally aim to enter into conversation immediately with one another and enter settlement conference before entering motion practice or letter writing campaigns. That is, they work towards a more structured, more peopled version of mediation or negotiation. This negotiation includes the clients, but is led and managed by counsel. This adds a level of distance between parties that can be helpful when direct interaction has been destructive.

Attorneys can still work cooperatively, both promoting civility and comity between parties while supporting a resolution of issues necessary to finalizing a divorce.

Cooperation is faster—it usually expedites the process and frees parties from being dependent or entangled in a relationship that has become toxic or disempowering.

When the power imbalance doesn’t reach the level of feeling threatened, a skilled mediator can often serve the clients. If safety is at issue—by this I include a perceived threat to one’s well being and sense of security—having independent representation may be in order.