The old school of thought was that mediations could not be conducted when there was a significant power imbalance or when domestic violence had occurred against one party in the relationship, but this is no longer the case with the different styles of mediation available today.
Most of my Pro Se mediations, meaning mediations held without attorneys, are facilitative mediations. This style of mediation involves a mostly “hands-off” approach. Both parties are in the same room with each side relaying their goals and interests. The parties work to negotiate a mutually beneficial resolution through the assistance of the mediator, who may or may not offer creative suggestions. This style works well for most parties, even those with a slight power imbalance.
Parties with a more significant power imbalance should not engage in facilitative mediation, but instead should request evaluative or transformative mediation. Evaluative mediation usually involves attorneys. Hiring an attorney to bring to the mediation will definitely resolve the power imbalance, but will also significantly increase the cost of your divorce. If you cannot afford to hire counsel, but are aware of a power imbalance, you should consider transformative mediation.
Transformative mediation involves educating the parties and helping them communicate through the mediation, and sometimes afterwards as well. Through communication and education, the power imbalance is equalized.
In transformative mediation, the mediator will usually pick up cues that there is a power imbalance and change the course of the mediation from facilitative to transformative. Often parties who have less power in the relationship don’t speak up in mediation, or sometimes don’t know they have the right to seek more support or assets or timesharing in the divorce negotiations. Sometimes, a party doesn’t even know what “more” is or that they may have been abused in the relationship. Abuse can take many forms, but often takes the form of financial abuse. Power imbalance can also occur when one party is simply unaware of the value of the estate or the other party’s income. And sometimes there is a power imbalance when one party simply doesn’t understand their rights at all.
When I see one side of the mediation willing to accept much less than that to which they may be entitled, I may separate the parties and continue the mediation from two separate rooms. This enables the “weaker” party to speak more freely. On the other hand, I may change the parties’ focus from positions in which they are entrenched to goals. A wife with less knowledge of the family finances may not even know she is entitled to spousal support. I may ask the parties to produce budgets. Her goal is to meet her budgetary needs when she cannot actually request spousal support for herself. By presenting each sides’ budgets to the other, I can remain neutral but also correct the power imbalance that has been in place in that relationship for probably a long time.
In other cases, I might intervene when I see a Father seeking significantly less timesharing than that which he may be entitled. Sometimes parties are so used to the dynamics of their relationship that they cannot advocate for themselves at all. My job is not to advocate for either side, however, I can provide tools to both sides when there is a clear power disparity, thereby equalizing some of the power imbalance. I may also suggest including communication protocols in the parties’ documents to enable one party to start asserting himself or herself with more regularity. This is especially important when there are children involved because the parties will continue to have contact with each other for decades after they leave the mediator’s office.
An experienced mediator can help navigate between the different mediation styles and correctly ascertain when transformative mediation should be used to equalize power imbalances in the negotiation.