Feb 28 2008
Dealing with Power Imbalances in Mediation & the Collaborative Law Process
As a family law mediator and collaborative law professional, I am constantly on the alert for signs that my clients lack self confidence in identifying and negotiating their respective needs going forward. A wife or husband who feels powerless in negotiating parenting arrangements or financial matters cannot negotiate a durable agreement in her or his best interests.
Wait a minute, you might say. In every marriage, one spouse is more competent than the other in different facets of a marriage. For example, the husband may see to investments, financing the house and other major purchases, and sometimes the checkbook balancing. The wife may be the “hands on” parent, knowledgeable on the comings and goings of the kids as well as the homework assignments.
That’s all true and, admittedly, we’re not looking for perfection when we talk about power in the mediation and collaborative law context. What is important is confidence in the negotiations. I’m constantly amazed by clients whose grasp of things financial improve dramatically during the mediation process. By the same token, the absentee parent who has this or her children full time every other weekend typically becomes more “hands on” as the mediation and collaborative law process unfolds.
In mediation cases where the lack of self confidence is palpable and continuing, I urge the spouses to retain a certified divorce financial analyst or a child specialist, depending on the issues involved. In rare situations where I conclude that professional assistance is necessary for meaningful negotiations and a durable final agreement, I will insist on this. These jointly retained professionals are barred by agreement from testifying for either party if the mediation or collaborative process fails and their work product is treated as confidential.
In other cases, I will urge a husband or wife to retain a divorce coach to help him or her deal with the emotional fallout of divorce. My objective is always to balance the power between the negotiating parties so they can make wise decisions for themselves and move toward their preferred futures.