Power Imbalances – How We Deal With Them – 10 Ways to Equalize Bargaining Power

By John Goodwin of John G. Goodwin, Family Mediator/Collaborative Family Lawyer/Family Lawyer posted in Family Mediation on Friday, June 30, 2017.

Often one spouse is a better negotiator than the other – this is normal. It is also true that there can be power imbalances in other processes – for example where one lawyer is a better negotiator or courtroom lawyer than the other. So we are not talking about perfect equality in any case – just a reasonable and safe process.

So how do we deal with power imbalances in family mediation? Here are 10 ways we can do it:

I. As mediators, we screen for power imbalances from the outset in order to be very aware of the dynamic and take steps to help equalize the negotiation process and to divert cases where mediation may not be appropriate. We have an impartial mediator who helps both parties express their needs and concerns.

II. The mediator manages the communication style (language, gestures, posture, etc) so that all parties can express themselves and be heard in a respectful and productive environment. Bullying has no place in family mediation.

III. We attend to physical security issues (arrivals, departures, furniture, seating arrangements) to help parties feel safe and secure during the process.

IV. Education: Both parties have the time and space to educate themselves on specific issues. The mediator provides both parties with information – the lawyer mediator can provide legal information and the mental health professional can provide mental health/family relations information. Often a person can benefit from advice from a financial professional.

V. We focus on the future, not the past, so that past patterns of inequality are not perpetuated.

VI. We focus on issues, not personalities – again so that past patterns are not repeated and so that we can move forward in a businesslike way to an agreement. If personality conflicts are getting in the way, we can use caucusing where the mediator meets separately with each party until the personality issues are no longer an obstacle to progress.

VII. Full financial disclosure by both parties often has an equalizing effect, particularly where one party has controlled the finances in the past.

VIII. Record of mediation sessions: After each meeting, the mediator usually provides a meeting summary so that the parties can move forward with a common record and not just one persons version of it.

IX. Remember – nothing is decided without full agreement of both parties. Mediation is a voluntary process and no one can force a person to sign a separation agreement. In any case, the agreement is not signed in the mediators office – it is usually done in the office of the lawyer providing independent legal advice – and so the will be no pressure or expectation in the mediation sessions themselves for the parties to sign a separation agreement.

X. Independent legal advice: And finally, the parties can and often should get independent legal advice so that the lawyer will look at a proposed settlement from the point of view of the individual client and highlight any unbalanced settlements and offer an opinion on how they can be made fair and reasonable for their client.

Through these methods and others, family mediation routinely deals successfully with power imbalances.