I teach a two day workshop later this month (March 23-24) that helps mediators mediate effectively when the power at the table is not even.
What do you do, for instance, where one person is wealthy and a skilled negotiator, while the other has less money and fewer skills? Do differences in attributes like these actually lead to greater negotiation power? Or what about personality differences– say where one is aggressive and competitive, while the other is passive and cooperative?
How can a family mediator help a couple negotiate a separation agreement when their relationship was defined by violence or abuse? What is one of them has a mental illness or an addiction? Or what if one has the closest bond with the children and is willing to use that to leverage higher spousal support payments?
All of these are examples of potential power imbalances in mediation. In each case, the mediator will need to meet the parties, separately and confidentially, before starting the process to determine whether the case and the parties are good candidates for mediation. This is called “screening” and it is a well-developed, sophisticated and highly intuitive process. Skilled mediators will screen out the cases that are better suited to other processes, such as lawyer-led negotiations, collaborative law or court. If the case is appropriate, the mediator, if experienced, will know how to structure the process to ensure that it remains emotionally and physically safe for both parties and their children.
Screening is both an art and a science and it takes lots of experience, practice, training and instincts. If you are interested in learning more about this critical step in the mediation process, consider taking our 14 hour course. It runs later this month.
2 Comments
I am a great believer in mediation but sometimes I can’t help but wonder. Since screening “takes lots of experience, practice, training and instincts” and is “a sophisticated and highly intuitive process” what happens if a less experienced mediator fails to identify power imbalances and a passive conflict avoider ends up negotiating with a skilled and angry manipulator. Is “shadow of the law” enough to prevent the more vulnerable party from walking away with an unfair agreement? Especially if the parties are unrepresented.
This is a good question. Like all things, you want to make sure that any professional you hire knows what they are doing. Not all experienced mediators screen; and not all mediators who screen are thorough; and even the best mediators who screen well can miss things. Screening is a very intuitive process; and there are people who are better at keeping secrets than we are at screening. All of which is to reiterate; you ask a good question.