How to Address Power Imbalances in Family Law Mediation and Arbitration

Dealing With Power Imbalances in Family Law Disputes

In New Jersey and throughout the nation, many family lawyers prefer mediation over litigation as a means to resolve family law disputes. Negotiated agreements allow for self-determination, and statistics show that mediated agreements are less expensive than litigation, much more likely to satisfy both parties’ disputes and much less likely to be violated than a court order. Often, a fundamental issue with family law mediation is that power imbalances exist and that the typical mediator is unequipped to deal with those inequities that may have a very real effect on the final agreement.

The Principles of Mediation

In order to appreciate the complexities of navigating power imbalances in mediation, it is important to understand the principles of mediation. Mediation is a process through which an impartial third party facilitates negotiation and eventually an agreement between parties involved in a dispute. That third party is a trained mediator. Divorces are typically mediated by divorce attorneys and other family law disputes by family law attorneys focused on those particular fields. Impartiality is integral. The mediator must be neutral in order to be fair, and that presents challenges when it comes to dealing with power imbalances that may be present.

Power Imbalances: Mediation as Negotiation

Mediation is give and take, and inherent to any negotiation are the power structures that exist between the parties prior to entering into the process. A prevalent example is the unequal negotiating power between spouses that divorce lawyers are often required to navigate. A spouse who has more income and is better educated negotiates from a position of strength, and the other spouse’s position of weakness can be further exacerbated by other factors, including status, self-esteem and gender role ideologies.

Neutrality vs. Fairness of Outcome

There is often tension between a mediator’s responsibility to be neutral and their responsibility to achieve fairness in the outcome. Using the earlier example of the power structures between the spouses, most mediators will recognize the weaker party and strive to protect them from an unfair settlement, but their measures must be tempered. Intervening in a significant way may violate neutrality and undermine the core goal of achieving empowerment for both parties, and further complicating matters is that there is no clear definition of neutrality for mediators with which the entire legal profession agrees.

Legal Representation for Both Parties

A widespread belief among lawyers is that the best way to navigate power imbalances while ensuring a mediator’s neutrality is to have all parties represented by their own attorneys. In this scenario, the mediator can focus on the process and remaining impartial, and each lawyer can advise their clients on legal matters and to help ensure that they are negotiating from an equal position. This approach is becoming more prevalent, and it is no longer unusual to have both divorce lawyers directly involved in the mediation. Furthermore, the American Bar Association Section of Family Law now recognizes the continuing duties of family law mediators to include advising the parties involved to seek independent legal representation.

All states allow parties involved in family law mediation to have independent legal representation. Many states explicitly allow that representation to be present during the mediation, and while no state yet requires it, there are efforts throughout the country to realize that requirement. It is also notable that some states still expressly prohibit the attendance of anyone other than the mediator and the parties involved.

Balancing Mediation Benefits With the Potential Downsides

Mediators must seek to strike a balance between all the good that mediation can achieve with the potential problems associated with unequal bargaining power. Many experts agree that a private screening with both parties is an effective starting point. It provides the mediator with the opportunity to identify potential power differences before the actual mediation begins. If there are differences and the mediator chooses to proceed rather than recommend a different course of action, experts recommend that the mediator set clear goals and identify ahead of time the methods that will be used to intervene. Mediators are unable toadvise, but they can raise questions about what is feasible, realistic and equitable.

Family Law Mediation and Arbitration in New Jersey

Here at Lawrence Law, our family law attorneys have extensive experience mediating family law disputes in a manner that is fair to all parties involved. If you are interested in having a divorce or child custody matter resolved in this manner, our firm is happy to review your case. Call us at 908-645-1000 or contact us online in order to schedule a consultation. We have offices in Red Bank in Monmouth County and in Watchung in Somerset County.