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

{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.