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One of the chief criticisms of family mediation is that mediation is inappropriate where
there is a serious power imbalance between former spouses.
In this article, I look at the nature of power in mediation.
I show that power is contextual, and that it is therefore hard for a mediator to
evaluate a power dynamic until mediation is well underway.
This does not, however, prevent mediators from manipulating the parties’ power in
an attempt to “create a level playing field.” I
then look at outcomes from mediation vs. outcomes from litigation.
I conclude by discussing the appropriateness of mediators interfering with the
power dynamic of former spouses.
ASSUMPTIONS
For the purposes of this article:
- When I talk about a “mediator” I assume a competent, properly trained
mediator.
- Mediation is voluntarily entered into by both parties.
- The imbalance of power between the former spouses is not extreme.
Mediation does not work when one party cannot overcome his/her fear of the other.
WHAT IS POWER?
Power Imbalances in Mediation
To put it simply, mediation is negotiation
with the help of a neutral third party. In
mediation, each parent should be free to value resources differently according to what
he/she perceives his/her interests to be. When parties value a resource that is controlled
by only one of them, a power imbalance will surely follow.
Without power imbalances, there would be no reason to negotiate.
A power imbalance can arise from something as simple as one parent controlling something
that is desired by the other. For example,
where a parent withholds his/her consent for the other parent to travel abroad with the
children, that parent may be exerting power over the other. Depending
on how important it is for a parent to take a child out of the country (to visit family,
for instance), this could tip the balance of power strongly in favour of one parent.
Resources are not Power
In “Theorizing Power in Divorce
Negotiations: Implications for Practice”, Ellis and Wight show that having power is not
the same as having resources. According to
their definition, power is not only having desired resources, but also how the resource
advantage is used.[1]
Ellis and Wight define “resources” broadly and offer numerous examples: wealth,
education, status, money, intelligence, legal and social norms, control over
communication, experience in negotiation, passivity, social support, and interim custody
of children.[2]
According to Wight and Ellis, power is contextual. Wealth,
for example, is not power in and of itself. Its
power depends on how it is used to effect outcomes. In
measuring how wealth becomes power, Ellis and Wight would consider how it is used to
effect outcomes given its relative importance to both parties.
Ellis and Wight explain further in the following example:
The possession or control of any given resource does not necessarily yield reliable
predictions about how it will be used…for example, a middle-class male who earns five
times more than his wife may be inclined to use money as a weapon…but his inclination is
muted or changed because he was brought up (socialized) to believe in and value gender
equity.[3]
Ellis and Wight found some surprising outcomes in their study. Most
of their hypotheses were not supported by their research.
They found that in family mediation:
- Females who had been physically or emotionally abused by their male
partners were as likely to achieve the outcomes they wanted as females who reported
that they had not been abused by their male partners.
- A majority of females perceived themselves as being “equally or more
powerful” than their male partners who possessed greater resources, both pre- and
post-mediation.
- Female partners who had made the decision to separate were overrepresented
among those who reported being “more powerful’ than their male partners who
possessed equal or greater resources.
- The impact of resources on the distribution of outcomes was greatest where
the spouses possessed non-complimentary resources and they could be traded off against
each other (e.g. wife had child-related resources; husband had money-related
resources).[4]
According to Ellis and Wight, “highly power-imbalanced couples were screened out of the
study at intake”.[5]
Ellis and Wight do not explain what “highly
power-imbalanced couples” means. Some of the
couples that were not screened out had a history of physical and emotional abuse, so I
assume that the couples that were disqualified were clearly unsuitable for mediation.
HOW POWER IS USED IN MEDIATION
The mediator’s job is to allow spouses to reach their own agreements.
If the mediator actively shifts the balance of power to the middle, that mediator
may be disempowering both negotiators – the more powerful by diminishing his/her power,
and the less powerful by undermining the way he/she values a given resource.
In mediation, power is measured by how the parties use their resources to affect the
outcome. This means that a mediator cannot
assess a power dynamic at the outset of mediation. The
mediator has to observe how resources are used before he or she can judge whether they
will be turned into power. Take the example
above of a wealthy spouse who, because of his upbringing, would not use his greater wealth
to influence the outcome of mediation. If the mediator tries to mitigate the wealthier
spouse’s expected power (it is just a resource at this point), then the mediator’s
attempt to balance the power actually disadvantages the wealthier spouse so that mediator
takes a balanced situation and creates a power
imbalance.
THE INFLUENCE OF MEDIATORS ON POWER IMBALANCE
What About Mediator Neutrality?
Research trends over the last decade show
that family mediators routinely use their authority to shape the process and outcome of
mediation, despite the fact that “formal guidelines consistently emphasize mediator
neutrality and client self-determination”.[6]
In their summary of the last decade’s research, Benjamin and Irving state
“there is pervasive evidence that mediators are enormously influential in shaping the
process in such a way as to help clients achieve…’sensible workable resolutions to
disputes’”.[7]
A mediator who does not do this would be very unusual.
Creating a Level Playing Field
Ellis and Weiss observe: “most
mediators…work on the premise that the likelihood of achieving a fair and equitable
settlement is directly related to crating a level playing field in which both partners are
roughly equal.”[8]
John Haynes, an influential writer in the field of Divorce Mediation writes:
“When the power balance interferes with the couple’s ability to negotiate a fair
agreement, I believe the mediator has a responsibility to act to correct that
imbalance.”[9]
Haynes offers half a dozen strategies mediators can use to manipulate negotiations so that
the spouse with more power loses their advantage (when it “interferes with the
couple’s ability to negotiate a fair settlement”).
As discussed above, the research shows that mediators interfere with process and
outcome to guide mediating spouses to what they perceive to be fair settlements.
OUTCOMES IN DIVORCE MEDIATION
One of the main criticisms of divorce mediation is that the more powerful spouse can
use mediation to his or her advantage to obtain a more favourable settlement.
Research shows, however, that outcomes in divorce mediation are not very different
from those reached through litigation.[10]
The extent to which they differ is that in mediation mothers tend to do better
financially, and fathers tend to do better in terms of time with children.[11]
In their article “To Mediate or Not to Mediate”, Marcus et. al. report on their
study of financial outcomes for 400 separating couples, half of whom resolve their affairs
through mediation, the other half through adversarial means.[12]
They were surprised by their findings, although those findings were consistent with
other studies (those of Pearson in 1991, and Bohmer and Ray in 1994).
Marcus et. al. found that:
“not only do women obtain similar
percentages of family income and family liabilities in mediated versus adversarial cases
but they also obtain similar amounts of periodic alimony and similar percentages of $1 per
year alimony…Surprisingly, women in mediated cases obtain a higher percentage of family
assets, receive periodic alimony for more years than their adversarial counterparts, and
obtain greater amounts of child support”.[13]
If we assume, as many critics of family
mediation do, that men wield more power than women in negotiation and therefore do better
in mediation, then the results of this study strongly suggest that either that assumption
is wrong, or that something or someone is interfering with the balance of power.
If mediators influence outcomes to be fairer (or at least more like court orders), is that
really a problem?
For parties who want to avoid the courts and decide to mediate without lawyers, the only
robust check on a mediator’s influence is the parties’ ability to leave mediation.
If a powerful spouse cannot exert his/her power in mediation, he or she is free to
litigate.
One thing that may prevent spouses from leaving mediation more often is that many
mediators present as neutral (though research suggests that they are not), and therefore
the more powerful party may not realize that in most cases the mediator (rightly or
wrongly) has an agenda to diminish their power.
CONCLUSION
Mediator intervention, even if it results in “better” settlements, undermines the
point of mediation (allowing disputants to reach their own outcomes).
If the mediator takes it upon him/herself to evaluate the parties’ resources and
power dynamic, he/she is effectively imposing a solution on the parties.
None of the studies I considered in this paper addressed this problem, maybe
because the research shows that outcomes from mediation are similar to outcomes from
litigation. To paraphrase what I imagine the
argument to be: “there is no problem” because the solutions that are being imposed by
mediators are fair.
Mediation should lead to
results that are better than those reached
through litigation. Mediation is for people
who can get along relatively well. Surely such
people can do better than spouses who are at each other’s throats.
It may be that in the name of
perceived fairness, mediators guide spouses in the direction of deals that the court would
have come up with. These are, presumably,
deals that are less tailored to the parties’ actual interests and circumstances than
mediation normally aspires to. Perhaps the
serious power imbalance that we should be concerned about in family mediation occurs when
a mediator shifts the balance of power from the parties to him or herself.
The mediator should not become the final arbiter of what is fair.
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[1]
Ellis, Desmond and Wight, Laurie. “Theorizing Power in Divorce Negotiations:
Implications for Practice”. Mediation Quarterly. 15 . 3 (1998): 227-230
[2]
Ibid. 230
[3]
Ibid. 231-232
[4]
Ibid. 228
[5]
Id.
[6]
Irving, H. H., & Benjamin, M. (2002). Therapeutic family mediation helping families
resolve conflict. Thousand Oaks, CA: Sage Publications, 360
[7]
Ibid. 360
[8]
Ibid. 91
[9]
Haynes, John. “Chapter 14: Power Balancing” in Divorce
Mediation Theory and Practice (Eds. Folberg, Jay and Milne, Ann),
Guilford Press: New York, (1988), 280-281
[10]
Supra Note 6 at 362
[11]
Id.
[12]
Marcus, Mary, Walter Marcus, Nancy Stilwell, and Neville Doherty. "To Mediate or Not
to Mediate: Financial Outcomes in Mediated Versus Adversarial Divorces." Mediation
Quarterly. 17. 2 (1999): 143-152
[13]
Ibid. 150 |