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Bridging the Gap: Mediating in Situations of Power Imbalance
Every family law mediator has encountered a situation somewhat similar to this:
After 25 years of marriage, the kids are grown and Husband and Wife are emotionally done with each other. Husband wants a divorce so that he can move on with his life. Wife is angry that it's come to this, but can't stand another minute. Husband has always controlled the finances, both at home and for his business, Wife has no marketable skills or current work experience and feels bullied by her husband. Husband offers the wife the home and $5,000 per month for five years on a "take it or leave it" basis. Wife would rather take it than confront her husband. After all, "he always gets his way." They come to mediation because Husband says it will cost less.
This situation raises, among other things, the issue of whether mediation is appropriate in the light of an apparent imbalance of power. If the fundamental principle of mediation is that parties' exercise self-determination in reaching mutually agreeable resolutions, is it ever appropriate to mediate when participants do not appear to have equal power or status? Experts have questioned what the mediator's role should be. Is it to advocate for the powerless? To work toward a solution that is equitable and just? To advocate for a settlement that conforms to statutory and case law? To make whatever resolution is possible under the circumstances? In the light of another fundamental principle of mediation - that of mediator neutrality - numerous commentators have addressed this issue without clear-cut conclusions. The purpose of this article is to look at that question through the prism of mediator's practice. My comments address pro se mediations, and for purposes of this article, do not include attorney/assisted mediations, although having attorneys at mediation may, in fact, be one strategy to address perceived power imbalances.
Our starting point should perhaps be the Model Standards of Conduct for Mediators adopted by the ABA, the Association for Conflict Resolution (ACR) and the American Arbitration Association (AAA). Standard VI, Quality of the Process, states:
A mediator shall conduct a mediation... in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants,party participation, procedural fairness, party competency and mutual respect among all participants.
In his book The Dynamics of Conflict Resolution, Bernard Mayer defines power in the context of conflict as "the ability to get one's needs met." He distinguishes between two types of power: structural, and personal. Structural power is situational. It includes the resources that persons possess-their authority, assets, earning power, status, contractual rights and so on-and the legal and political framework within which the conflict occurs. Personal power includes the qualities of the individual-determination, focus, eloquence, forcefulness, knowledge, empathy-that help him or her advance his or her interests. A third category could be added: situational, powers that accrue to an individual because of a particular situation or crisis.
Power comes in many forms, some more subtle than others:
Inevitably the parties in family law mediation have different sources and degrees of power, differ in their awareness of the power they possess, and differ in their ability to assert their power to advance their interests. Many factors enter into the power balance: education; professional status; earning power; self-esteem; depression; sex-role ideology; a sense of guilt or victimization, attitudes of entitlement or obligation. In spite of the complexity, though, it often occurs that one spouse enters the mediation clearly subordinate to the other. In such a case-in the case described at the beginning of this article, for example - should the mediator intervene at all? And if the mediator does intervene, how can he or she redress the "imbalance of power?"
Mayer is not alone when he states that "balance of power is a confusing and possibly meaningless concept." It's not a measurable quantity. Rather, one should look at differences in power and whether someone has the power to make something happen.... the idea that power can be balanced to produce some equality is misleading as it fails to account for the dynamics of power."
Instead of equality, Mayer says, what is needed is that each party have "an adequate basis of power to participate effectively in conflict....they must be able to engage with some hope of being influential and effective." If a party lacks an adequate basis of power due to domestic violence issues, or other emotional, psychological or social factors, a mediator should postpone, withdraw from or terminate the mediation. Christopher Moore states that "all parties must have some means of influence, either positive or negative, on other disputants. This is a prerequisite for a settlement that recognizes mutual needs." If one party has the means to force an "unsatisfactory settlement" on the other, says Moore, ..."the mediator will have to decide whether and how to assist the weaker party." Moore recognizes, however, that "empowerment of the weaker party by the mediator requires very specific intervention moves-activities that shift the mediator's function dangerously close to advocacy."
And here is the debate that splits the field. One school believes that a mediator has an obligation to create fair and equitable settlements and in order to do so must use techniques to shift the balance of power. Another school argues that mediators must not meddle with the power relations of the parties because to do so would compromise the mediator's impartiality, and that a level playing field is an illusory concept.
I submit that the mediator can remain neutral and employ a number of strategies to address inequities of power. The mediator's commitment is to both parties. His/her primary goal is to help them reach an agreement that works for both of them, and in order to do that the mediator must assist both parties in asserting their legitimate interests. Indeed, a party may be dominant as to some issues and disadvantaged in others. The husband may be more dominant and forceful in the matter of financial assets, a wife more dominant in the matter of the children, or in her use of anger to achieve her goals. The mediator may need to help the wife assert her interests productively in regard to assets and help the husband assert his interests with regard to custody.
Bridging the power gap in mediation is not about reaching an agreement that a mediator feels is just or equitable. It is not about favoring the weak against the strong. It is about assisting parties to overcome the barriers to negotiation and agreement that are presented by their perceptions of power that are frequently erroneous or ineffective when exercised and passive impotence or helplessness on the other. The mediator creates a forum and a process in which both parties are able to assert their respective needs and interests.
As the intermediary, the mediator has numerous powers and tools to use toward this end. Christopher Moore enumerates them in his book, The Mediation Process. Some are structural, others are personal.
These are some of the powers the mediator has that can be exercised in an impartial manner. What can the mediator do, however, when it is evident that one of the parties feels hopeless, unable to participate, dominated or intimidated by the other party?
There are many steps the mediator can take in an even-handed way, without becoming an advocate for one party. In joint session or in caucus, the mediator can help the disadvantaged party recognize and use the powers that he or she already has. Exercising the power to say "not so fast" or simply "no" can trump even the most aggressive ultimatum. By emphasizing the voluntary nature of mediation, exploring the consequences of the termination of the mediation, or a range of outcomes in an alternative forum such as litigation, the mediator's process creates an opportunity for the person who feels powerless to explore his or her interests.
First, the mediator can arrange the setting and the format for the mediation in a way that makes both parties comfortable. The arrangement of a table, the mediator's body language, separate conference rooms, breaks for tea, water or coffee. If the mediator moves - to an easel or across the room - the conversation is redirected and focus is deflected from the parties to the mediator.
Second, and perhaps most important, the mediator can help the party understand and articulate his/her interests in the matter. One way is to give the party assignments that require them to develop the necessary information that leads to informed decision making. Another is to ensure that each party has obtained sufficient financial disclosures to develop a framework for options to be generated and assessed.
Third, the mediator can brainstorm with the parties and add suggestions to the different options that might help the parties achieve their respective interests. The mediator can help the party visualize (and sometimes quantify) the consequences of different options-including the consequences of capitulation.
Fourth, the mediator can validate the concerns of each party, including the party who feels that he or she is in a power-down position, validating those interests and helping each party separate out emotions, fears, resentments, values, and real interests that need to be protected, including interests of outside parties.
Fifth, the mediator can help each party see what power he/she has in the situation, which may be unknown to the party -or to the other. The more the parties perceive that both have power to wield, the more likely that they will negotiate in good faith, look for trade-offs, and move toward agreement. In the example at the beginning of the article, the wife may not know that she has the power in her anger, that she has the power to explore all possible options, the power to say no, the power to do nothing. Marriages, especially long marriages, always involve reciprocity, sometimes subtle, and it may be more clear to an observant mediator than to the spouses what compensatory powers may be enjoyed by the "weaker" spouse.
Sixth, the mediator can ensure that teach party's interests and positions are put forward effectively, restating and reframing as necessary. If a party feels intimidates, verbally or otherwise, the mediator has the power to set a structure that will prevent this. The mediator can redirect a conversation, question the relevance or efficacy of inflammatory topics, behavior or issues.
In using these techniques the mediator need not be perceived as favoring one side over the other, which would be fatal to the process. Rather, the mediator appears as the guardian of process, ensuring that each party has a chance to be heard and to have his or her concerns recognized. Full participation by each party, each wielding his or her power with full knowledge of his or her options, will result in an agreement that honors the principle of voluntary self-determination and is based on informed consent.
The Oregon court grants a no-fault divorce, or one person can allege fault to end the marriage. A couple must either agree to the reason for the divorce, such as the marriage has irretrievably broken down due to irreconcilable differences, or prove to the court that the divorce should be granted because one party was under-age or lacked the mental capacity to understand marriage, or consent was obtained either by force or fraud.
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