Mediation

A Triumph for the Best Interests of the Child

A Triumph for the Best Interest of the Child by Rachel AlexanderThe Overruling of Baures by the NJ Appellate Court

{7:12 minutes to read}  Relocation is among the most difficult family law issues for families and courts. Relocation is when the parent with sole or primary residential custody chooses to move out of state with the children. The change in parenting roles and developments in attachment theory, along with other areas of psychology are reflected in a recent court decision. The case of Bisbing v Bisbing went to the New Jersey Appellate Court about the issue of relocation.

In the case of Bisbing, the parties mediated their divorce, including agreeing to a parenting schedule for their twin daughters. While the parenting schedule reflected the mother having more overnights than the father, the father had significant weekly parenting time. He was integrally involved with the girls, coached their ski club, and had regular weekly parenting time.

The mediated Marital Settlement Agreement included language whereby the parents acknowledged that a move of either parent of a significant distance, in a manner that would dramatically affect the children’s access to both parents, would potentially impact the children negatively. The agreement stated that the parties recognized the importance of both parents being involved with the children in the manner proximity enables.

In this case, not long after the parties divorced, Ms. Bisbing notified Mr. Bisbing that she planned to remarry and move to Utah with the children. Had Mr. Bisbing consented, the matter would have ended there. Without the consent of the parent of alternate residence, the matter went to court.

The initial court granted Ms. Bisbing’s request to move with the children, presumably following the analysis under Baures v Lewis, and Mr. Bisbing appealed this ruling.

The Baures analysis follows:

Provided the custodial parent is relocating in good faith, for legitimate purposes – such as remarriage, availing herself of more family support, or a substantial employment opportunity – and not for the sole purpose of denying parenting time to the non-custodial parent, the court generally permits relocation. The reasoning is that the custodial parent should not be so restricted by her parenting obligations as to prohibit her enjoyment and enrichment of life. As the custodial parent achieves and accepts new opportunities, so too, the reasoning goes, are the lives of the children improved.

This rational made good sense in the days when one parent, typically the mother, would have close to 100% custody of the children, with the secondary parent being perfunctorily, often minimally involved. In such instances, it would be profoundly unjust to limit the primary parent’s mobility and ability to get on with her life merely to ensure the non-custodial parent a continuation of nominal parenting time. The Bauers analysis provided the moving parent a wide girth – provided the move would not cause inimical harm to the children, and the court would generally permit the relocation.

The Old Standard for Relocation

One of the issues in this case was whether the mother knew she wanted to move away with the girls and did not negotiate in good faith during the mediation. The Marital Settlement Agreement, the result of the mediation, included a provision about relocation stating neither parent would relocate more than 20 miles without the consent of the other parent. There was other language stating that the parents acknowledged that living within proximity of and having access to both parents is deemed to be important, and that relocating might detrimentally affect the children’s relationship with the other parent.

The New Standard: From Inimical Harm to Best Interest

In the case of Bisbing, Baures was overturned by the Appellate Court. This case reversed the looser standard of inimical harm to the child, in favor of the new standard: whether the move would be in the best interest of the child. This new analysis shifts the burden to the moving parent not only to show that the move is in good faith, but also to show that the move is in the children’s best interests. This showing needs to outweigh the presumption that the children are generally best served by having regular access to both parents. The new analysis also no longer rests on the presumption that what is good for the primary custodial parent is necessarily best for the children. In Baures, the analysis was the much lower standard such that if the move would do no harm to the child, it was permitted.

Important input from the therapeutic community says that children are served generally by having significant access and opportunity to build stable relationships with both parents, and that involvement of both parents in raising the children is optimal. This also reflects the changes in parenting that the last decades have seen, with more equal parenting time favored and 50/50 custody often being the norm. As the social, familial structures evolve, so inevitably does the law.

A final note: A couple years ago, a family judge fairly new on the bench, disclosed that relocation cases are the toughest and most gut-wrenching cases over which he presides. There is no outcome that leaves the parties untouched by some loss. On the one hand, this change may limit a divorced parent’s ability to get on with their life by remarrying, moving, or taking advantage of opportunities available to him or her. On the other hand, the non-moving parent and the children could be denied the fundamental opportunity to share these very important growing years, and may forfeit the opportunity to forge the sort of attachment that endures and provides a vital resource for a lifetime.

We will continue to see the law on this complex subject develop. Importantly, the needs and best interests of the child are perhaps being allotted the gravity they deserve.

Stay tuned.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

The Focus Oriented Divorce Has Arrived

The Focus Oriented Divorce Has Arrived by Rachel Alexander{2:30 minutes to read} I am pleased to announce the completion of my certification as a Focus Oriented Professional, and a Certified Focusing Trainer. The certifications are the culmination of over two years of study, learning, and practicing. I have often made mention of the focusing training, teachers and the Focusing Institute in my blogs. Focusing can offer immediate relief to the divorcing populous through its many accessible tools. I’m excited to introduce it to those who would benefit so much from it — particularly those traversing their divorces.

I look forward to exploring this together through articles and attunements (soon to be available on the website). Attunements, much like guided meditations from a Focusing perspective, will be available as audio blogs that can be listened to at your leisure. They are offered as another tool for support, integrating the Focusing approach with the challenges of divorce. I hope to soon be offering some podcasts and blog interviews with premier practitioners in this field.

Focusing concentrates on how change occurs. Change is the reason people seek treatment, and the inability to change is why treatment fails. Other therapeutic approaches delve into insight, analysis and causation, and though often result in clients gaining understanding of what went wrong, offer no clear way forward — no transformation, no way to live differently. The intellectualizing of issues and identifying their origin does not automatically, alone, result in resolution. Clients are often left with insight, but without relief. Focusing operationalizes a process required for change. Not just theoretically, but in real time.

Focusing has informed my mediation practice, and will now be even more substantially incorporated into the support group meetings, and the services offered by Alexander Mediation Group.

As we support you on the journey from here to where you are headed, I am dedicated to learning more of what would be most useful to you, and welcome your questions, comments and requests.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

Pathology Pointing: Why it Doesn’t Work in Divorce

Pathology Pointing: Why it Doesn’t Work in Divorce by Rachel AlexanderWhat is the difference between Pollyannaism and a Balanced Realism Approach?

{4:36 minutes to read}

Pathology Pointing

Our western medical model is pathology-based; our biology is organized around identifying problems. Evolutionarily, problems = danger. But could there be usefulness to hanging out in what is working? This takes a kind of courage perhaps to overcome some fear that issues will get bigger or take over if you don’t keep watch over them. Who will do the worrying if I take a nap?

The question is this: can we turn towards what’s good even while there is bad stuff going on? This requires tolerance and vigilance. Can we rebuild healthy tissue to overwhelm the unhealthy cells? Can we implement this as part of our strategy even while eradicating the cancer? This reshaping brings more possibilities than dead ends. (Which reminds me of my hair see how the negative comes right up?!)

In addition, focusing on one or the other’s pathologized or problematic behavior usually just results in vilifying one person and victimizing the other, positioning the parties in defensive, adversarial postures. We are not ignoring any of the problems, rather we are addressing them in a potentially more effective way.

What’s Right?

Why don’t we ask this question at least as often as we ask what’s wrong? In order for something favorable to take hold, it needs our attention. Literally. It needs about 1-2 minutes to imprint on us and become a resource we can recall. So says positive psychology. Whereas negative experiences imprint automatically and remain with us always, favorable experiences must be consciously attended to in order to root.

In divorce mediation, exploring what is already working is often the most important time spent. We know there is a lot that hasn’t functioned well; after all, we’re here. But often there is much that operates well. When we locate that, we have a blueprint for what can be built.

How to Focus on Strengths

Here are a few lines of inquiry that help people establish a way into what works:

Tell me about a time that:

  • You felt heard by your spouse;
  • Your spouse came through for you;
  • He or she demonstrated great parenting;
  • You were relieved the other was there; or
  • You functioned well as a family.

What are you most proud about? 

  • The way your children relate to one another and each of you?
  • How your kids are developing as students? As individuals?
  • The ways you and your spouse have provided for/nurtured/guided them?
  • How you both are handling the current conflict?

This focus serves multiple purposes. It helps people re-organize their thinking by turning their attention to what they have done well in the past and what they have now that’s worth protecting. Someone focusing on what they do have is likely to want to blow things up as an expression of their anger and grief, taking the family down with them; they are more likely to attend to what is valued. This approach transforms into positive self-regard and self-efficacy two things much needed in divorce. Additionally, it helps people identify what each party calls successful or functional, and then dialogue about it, developing common ground.

Like anything new, shifting focus takes discipline, and the development of new muscles. Most of us are pretty toned in the complaining portion of our anatomies but are a bit flabby in identifying what is going well.

Even rewiring a room takes skill, patience and some expertise. Rewiring our minds is a much bigger job. Our minds, in fact ourselves, are far vaster and more miraculous than any structure, so be kind with yourselves as you begin to remodel your own interior.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

The “We Space”

The "We Space" by Rachel Alexander{4:12 minutes to read} The “we space” is what is created when two or more people are in a relationship. A couple has a different energy than each person on his own; a family has a whole dynamic greater than the sum of its parts.

Sharing a story about your day might be a different experience depending upon who you are telling. Recounting to your 15 year-old, your best friend or a work colleague will be a whole different thing. Not only might you use different language, emphasize different aspects, frame the story so it’s relatable to your audience, but your experience of being heard and being with your listener will vary.

Even a non-verbal experience, like watching the same movie, would have a whole different feel if shared with your wife as opposed to your ex-girlfriend. You are ostensibly the same, the movie is unchanged, but the experience is affected by the “we.” The difference has to do with whom you share the experience. Not only your sense of who you are while with the other, or your sense of who the other is, but all of what is created in your being together – the something between the two of you – the relatingness itself – which has its own particular quality. In fact, when couples choose to divorce, it often has to do with a deterioration of their “we space.”

“Me Space”

How we pay attention to ourselves and stay tuned-in and online with ourselves is the “me space.”

“Ooh! I’m getting a – I don’t know. I know we just walked into this restaurant, but I’m getting a weird feeling here. You know what, I’m gonna check out the menu next door.”

“You Space”

The “you space” is the other person, who is a whole kind of mystery and universe unto themselves. Often we are attracted to people who have an intricate and unique “me space,” where they are managing their own stuff in a particular way that appeals to us.

A relationship is more than the people inhabiting it. It is the relating that occurs between them. What happens when we sit down together on the sofa and engage? What is created between the two of us that is neither me nor you? We are both the players, contributors, but there’s something else. Almost like a child that is created between the two of you; without both of you it would not be there, and yet it’s neither of you. It is distinct and can, and ought, be treated as such.

The “We” of Divorce Mediation

The “we space” provides an opportunity in mediation. The “we space” is sans blame, sans judgment. Without the focus on what is who’s fault.

When we focus on what is between the two of you – two people in conflict, often in pain – we can begin to work with something much more malleable and faultless then either of you, your shortcomings or past foibles. In shifting our attention from each of you as separate entities, to the relating born of the two of you, we have an entry point for our work, and can begin to engineer something new together.

Like copilots of a ship, a Relation Ship, rather than determining who must walk the plank, we can direct our course towards the brightening horizon.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

Mindfulness and “Self-in-Presence”: A Tool for Divorce Mediation?

{5:18 minutes to read} How do we get present?Mindfulness and “Self-in-Presence”: A Tool for Divorce Mediation? by Rachel Alexander

Last time we looked at the importance of mindfulness and getting present, so how do we do it?

Practice, practice, practice!  And, softly, softly, softly.

One suggestion: set an alarm on your smartphone to sound a gentle tone several times during the day.  When you hear it, simply bring your awareness back to yourself and your body, perhaps offering yourself the gentle prompt: “How am I right now? How am I feeling just now? Where is that located in my body?” It’s very simple, and takes less than a cluster of seconds. It’s merely taking a pause. A simple checking in, noticing, without trying to rectify, manipulate or adjust anything.

Grounding techniques also encourage mindfulness. Simply tap your feet on the floor, left then right, several times until you are able to bring your awareness into the feel of your feet in your shoes, stockings, and on the floor beneath. Simply paying attention to the sensation can bring one back to the present. Physical exercise, meditation, prayer, yoga, and time in nature all help bring us into conscious awareness. Anything that helps our senses return to our surroundings and our attention return to our bodies reorganizes us to the present.

Mindfulness and “Self-in-Presence”: A tool for divorce mediation?

Ann Weiser Cornell and Barbara McGavin, inventors of Inner Relationship Focusing, developed the term and concept “Self-in-Presence.” They suggest that “self-in-presence” is required not only to experience a “felt sense” (a bodily experience of something not yet articulated, at the edge of one’s awareness) but for meaningful personal change to occur.

What is “self-in-presence?” It is a state of grounded, non-judgmental awareness. It is the ability to turn toward whatever is arising in you: experience, thoughts, emotions, and so on.

This is similar to the “observer” self in Buddhism and mindfulness practice. There is an awareness of the body in space, on a chair, in contact with the world around it. There is a focusing attitude of “interested curiosity,” a turning towards oneself in the way one would turn towards a lost child or young animal upon first meeting. This is an approach of care, a slowing down, an attuning to. It brings a listening intent. It keeps company with.

We are in self-in-presence when we can acknowledge our internal and external environment with a compassionate curiosity, a befriending, a welcoming of everything exactly as it is.

To summarize:.

  • Simply turn toward yourself exactly as you are in this moment — do this by pausing and bringing your awareness to your body and breath now, and in any moment you remember.
  • Notice that you are having an experience and see if you can get a sense of it in your body. See how that might feel different than the sensation of being indistinguishable from the experience you are having.
  • Practice keeping company with yourself — your feeling or your perception — rather than identifying as it. When you notice yourself having a strong reaction, you are already expanding, as you are now both the one experiencing something and the one observing the experiencing.

Try taking this further by changing what you say to yourself from “I am _______ (furious, thrilled, overwhelmed) ” to ”something in me is _________ (furious, thrilled, overwhelmed).” For example,“I am angry” becomes ”something in me is angry.” By experimenting with this linguistic shift (which I learned from Ann Weiser Cornell), you create more space for the vastness and complexity of all of you.

Regardless of how overcome we feel by a particular sensation or feeling at a given moment, we are each — always — much more than any one thing. This is also called “disidentification.” You are not your emotion, or only your emotion. By making this shift, you invite the more of you that can notice the angry (or activated) part without merging with it. The you that can keep company with all of what is occurring for you.

Once we are in (indeed, are) this expansive, observing space, we can be both with ourselves and one another differently. In this way we welcome wholeness, healing and conclusion.

Special thanks to Ann Weiser Cornell for her comments and suggestions on this article.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

Mindfulness and Mediation

Mindfulness and Mediation by Rachel Alexander{3:30 minutes to read} In some spiritual practices, a bell sounds several times a day calling the observant to prayer. Like a mindfulness bell, it brings the devotee back to what is important: her God; her Self; the precious here and now.

When people are not in the here and now, they are in a default-geography of past and future. A space that does not, in fact, exist. The past no longer exists and the future similarly has not yet been born. It is the landscape of fear, unconsciousness, muddled and circular thinking. It is where unhappy, historic narratives are recited, churned and finally stagnate into algae-clogged swamps.

It’s the habitat for loud, punishing declarations. “I’m getting an attorney/walking out/telling the children what you did.”

This is the place of Nothing Good Happening.

When people are in the conflict of divorce, repeating reactive behaviours, the inclusion of mindfulness practice helps slow things down. Slowing down makes one observable to one’s self. Slowing down helps one catch up with oneself.

Like slowing down film footage in order to see the material more precisely – to glean what is otherwise unobservable, or slowing down the car when finding your way through a foreign neighborhood – we slow down when emotions are high and what we are doing matters.

Mindfulness slows us down so we can make better decisions, fewer mistakes, and take the appropriate level of care. Counterintuitively, slowing down helps us ultimately pick up the pace sooner.

Getting divorced without mindfulness is like holding a board meeting with most of the members absent. The decisions made will be less informed. The required quorum might not exist, so no decision reached will hold.

Einstein said: “We can’t solve problems by using the same kind of thinking we used when we created them.” Shifting gears into an aware, thoughtful space immediately shifts people from causing problems to resolving them. When divorcing clients are attuned to themselves, they can better:

  • Simultaneously observe and engage, interact purposefully;
  • Access their innate intelligence;
  • Identify authentic wants and needs;
  • Regard the other party with clarity and spaciousness, experiencing relief; and
  • Cooperate to problem solve and co-parent.

When people are fully present, they have access to their best selves. They are not ruled by what is old and outdated – be it behavioral patterns or “unfinished business” that continually surfaces and runs away with them.

Mediation is about listening purposefully and intently. This can only take place in the present. Almost every mediation client identifies the breakdown of communication as a primary catalyst in the collapse of the marriage. Listening is how conflicts get resolved. It’s the balm for emotional abrasions.

So how do we get present? More on that coming up in our next blog.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

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

To Mediate or Not to Mediate: The Question of Power Imbalance, Part III by Rachel Alexander{3:42 minutes to read}
Litigation and Power Imbalances

DANGER!

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.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

Happy to Announce…

Happy to Announce ... by Rachel Alexander{3:12 minutes to read} I am pleased to announce that on June 22, 2017, I became of counsel to the firm Gruber, Colabella, Liuzza and Thompson. This is the culmination of a long relationship with the first named partners, Mark Gruber, Esq. and Chris Colabella, Esq., who have been my go-to people since I began in the field almost ten years ago. They have practiced matrimonial law for 40 and 29 years, respectively, and are not only experienced but excellent at what they do. This firm has been my first referral when clients need a review attorney or representation in litigation.

Mark Gruber is well know for teaching countless Continuing Legal Education (CLE) courses for lawyers.  Mr. Gruber, with partner Natalie Thompson, Esq., publish and lecture statewide the Family Law Practical Skills Series for ICLE.

The firm is a strong and capable one, with attorneys who are adept, client-centered, and experts in matrimonial as well as other areas of law. Their outstanding support staff is highly trained and effective. Together with the attorneys, they are able to streamline workflow and keep costs reasonable and fair for clients.

As of counsel, my focus will remain on mediation. I will continue my own practice and collaborate with Gruber, Colabella, Liuzza and Thompson if or when a case goes into the contested arena requiring trial and motion practice. Through our affiliation, my clients will be able to continue working closely with me while benefiting from the resources and breadth of experience of the firm.   

This fall 2017, my colleague, Daniel Agatino, Esq., a member of the firm, and I will be rolling out a podcast series with a goal of providing another accessible resource to our clients and the community.

With an office in Hopatcong and another by the courthouse in Newton, Gruber, Colabella, Liuzza and Thompson has been providing excellent service to the residents of Sussex County for over two decades.  As my practice area spans Essex, Union, Morris, Hunterdon, Somerset, and Middlesex Counties, our affiliation will allow us to serve a larger geographic area and increase our ability to help more people. I look forward to serving current and future clients with this expanded resource base.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

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

To Mediate or Not to Mediate: The Question of Power Imbalance, Part II by Rachel Alexander{3:42 minutes to read} In Part I of this series, we defined a power imbalance and how to spot it. We discussed two of six integral recommendations in working with it in divorce mediation. This article continues where we left off, exploring the other four.

Third: Slow Down and Pay Attention

In mediation, there must be a slowing down, a carefulness and attention. This is always so, but when the intensity is part of the couple’s history, and emotions can escalate into impulsive, harmful actions, a heightened awareness is needed so that things can be seen before they manifest. I aim to track the clients very closely, listening intently to what is both said and unsaid, attuning to what is happening for them from one moment to the next.

Fourth: It Is Here Anyway

Part of the mediator’s job is to address what is there. I find it helpful to know this: it’s there anyway whether you want to talk about it or not. This is freeing. You are not opening a can of worms when the worms are already squirming about, uncanned. In other words, not talking about something actually doesn’t mean it’s any less there.

Fifth: Creating a Team

Including other professionals mitigates the isolation that is part of the dysfunction. Encouraging more connections and resources helps not only support the couple, but also invites witnesses, which can encourage both parties to act in less regressed, primitive ways. The dynamic, their covert culture, becomes permeated by helping professionals who can gently loosen the party’s’ grip on one another and bring into the light what has bred and grown with the help of darkness. For example, when wanted, the clients will release their therapist(s) to speak with me. Their role may be less substantive and more dynamic – their inclusion in the process helps neutralize and open up a closed system. Their presence of itself changes the molecular structure of the relationship.

Sixth: New Rules

In the first mediation session, we determine the rules that must be in place for the mediation process to continue and for the clients to feel safe, both in and out of sessions, while practicing a new way of relating to one another. This is a big ask, so we keep it simple – maybe just one or two new rules that are vital and clear.

For example: only talk about stuff in mediation, leave it all here, no berating the person afterward; leave it alone; and how to be safely in the same house between sessions.

Anything that arises, you jot down and both agree you will leave it for session.

If something starts feeling unsafe, both parties acknowledge the other’s right to leave the house/place immediately and end the interaction, and there can be no repercussions for exercising this right. Agreeing to this in advance can make it feel less threatening/abandoning when one party physically removes him/herself from a situation.

We’ve addressed power imbalances in mediation, but what happens in litigation? We’ll examine this question in Part III, the final portion of the series.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305

 

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

To Mediate or Not to Mediate: The Question of Power Imbalance, Part I | Rachel Alexander{4:00 minutes to read} Certain relationships are problematic and challenging, whether in mediation or litigation. This article looks at one particular challenge – power imbalances – and how they are managed in mediation vs. litigation.

Many, if not all, relationships experience power imbalances at different times. In fact, power imbalances are one of the main concerns expressed during individual intake calls.

What is a “power imbalance?”

Here are some examples of possible imbalances:

    • She pays all the bills: I have no idea what our household finances are.
    • He has a Wharton MBA and I am a school nurse; how can I competently discuss our assets in a mediation setting? I am totally disadvantaged!
    • She wants the divorce and I don’t – I don’t even want to be here. I’m devastated, and she already has both [emotional] feet out the door.
    • There is a history of emotional and psychological abuse. He manipulates and bullies, and I am afraid of being made uncomfortable during sessions and punished afterwards.

While violent and dangerous situations need a more structured, heavily resourced environment, there are more moderate cases of power imbalance that can be appropriate in a mediation setting.

Spotting power imbalances

Power imbalances often show up in a secondary manner. For example, a new client might ask: May I bring my friend?

While I ultimately discourage this because of a myriad of issues including confidentiality, the more important question we discuss is: What purpose would be served by your friend’s presence? From there we uncover feelings of unsafeness, concern about being intimidated and losing her voice. Once the concerns are expressed, we can determine how to manage them together. We contract for candor and safety.

How does a mediator address a power imbalance? Two of the 6 recommendations follow. (The remaining 4 will come in Part II.)

First: Onboarding the “Victim” to Participate in Protecting Him/Herself and Creating a Workable Environment

Speaking with the “disempowered” party about how to best create a safe environment and making a contract for candor with the client – to express to me any time she feels this dynamic is surfacing – encourages an environment where we are collectively responsible for the hygiene of our working space. The mediator asks the client to stay aware of how she is doing in the sessions and verbalize immediately any time she is feeling uncomfortable and that the dynamic is in play.

Second: Adopting a Helpful Presumption

There is this working presumption: When a relationship feels unsafe for one person, it is certainly also destabilizing and threatening for the other. The power dynamic often can be reframed and understood as both people experiencing intense, threatening feelings but acting them out differently.

The mediator’s recognition that both people are experiencing a loss of power can already begin to shift the power imbalance, affecting how the mediator treats the parties, thus affecting how the parties respond. Instead of regarding one party as “perpetrator” and the other “victim” – an unhelpful, polarizing space to work from – the mediator can approach the parties with the sense that they are both suffering. While the disempowered spouse may feel threatened, bullied, abused, the “powerful” spouse may also feel out-of-control, attacked, maligned.

Power imbalances are worthy of our attention. More to come on this important topic in our next article.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 832-2305