When One Side Won't Come to the Table

Today, I’m thinking about the Ukraine situation.

The most challenging mediation cases are not those where both parties feel wronged equally; instead, they are those where one party has an overwhelming advantage in terms of power and does not view compromising as necessary.

This scenario is playing out in Ukraine. When one party has far greater leverage than the other, the party with the stronger position often has less incentive to engage in productive discussion. This same dynamic can be found repeatedly in family mediation, where these types of power imbalances can create an impression that it is impossible to find a just solution.

Power is at the heart of many divorce and separation litigation issues, and power imbalances can take many different forms. One spouse may have control over the couple’s finances while the other has not been employed for many years; one parent may live close to family members providing support while the other may be isolated; and one spouse may threaten to file a costly divorce lawsuit that the other spouse cannot financially afford to contest.

The problem is compounded by the fact that the more powerful party may not recognize that any type of power imbalance exists. Often, the powerful party views their position as reasonable and believes that their view of fairness is reasonable.

This can happen in In many situations like divorce mediation. The stronger party may threaten the other with a drawn-out court battle that the weaker party cannot afford to engage in. Also, one parent may take the position of restricting access to their children unless they give up their rightful share of property. Mediation becomes just another way for the stronger party to exert their control.

Workable Solutions

Although power imbalances are often viewed as a reason why mediation will not work, it is possible to engage in valid mediation processes with a different approach.

• Recognize the Power Imbalance. Don’t ignore or deny that this is happening. Acknowledge it and identify the imbalance so that it no longer becomes the “elephant in the room” which can impact the likelihood of a successful mediation.

• Level the Playing Field. A guiding principle of mediation is neutrality. The mediator has a responsibility to level the playing field to some extent between both parties. This could include meeting with each party individually, allowing more time for the weaker party, conduct the session via a video chat, etc. The goal is to allow the weaker party to express themselves without fear or intimidation.

• Discuss the Alternatives. The stronger party may feel that they are certainly going to “win”. Mediation does not always end with a successful resolution. Both parties should understand what the alternatives are if they do not arrive at an agreement. These alternatives need to be clearly stated so that all parties are fully informed.

Equality

It is very difficult to establish absolute power equality between the parties. This rarely happens. There are too many variables. However, when the parties know that walking away is an option, it can dramatically transform the mediation from coercion and fear to effective communication and problem-solving.

#Mediation #FamilyMediation #ConflictResolution #DivorceMediation #Negotiation #ADR #Ukraine