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.

The Question of Power Imbalance

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.

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

Litigation and Power Imbalances

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.