Abstract
For many observers, the most serious problem in mediation concerns the imbalance of power between the parties, and it is as impossible to listen to a critic of mediation without being confronted with this problem as it is to attend to a training program for would-be mediators, or a conference of experienced ones, without being presented with a workshop designed to assist them to deal with it.
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Notes
We do not mean to suggest by this that their husbands are really strong and powerful. On the contrary, they may only be very insecure and rigid bullies. We are simply willing to accept, for the sake of argument, the view being expressed that sees these traits as being strengths and the expression of power.
One of the ironies here is that the argument that men are more knowledgeable, more powerful, and better negotiators is not only usually made by women, but is also usually made by women who would not concede for a moment that a man is better or more competent than they are in any way.
To be sure, various factors, including societal norms, may provide men with certain advantages that women do not have. But this is not to say that these advantages have the results suggested by the argument, or that they are not balanced out in other ways. Consider the following. Men who married in the late 1950s, 60s and early 70s had an advantage over their wives in that the conventional norms at the time permitted them to ask their wives for a date, while it did not permit their wives to ask them for one. Given the tremendous advantage that this selection process afforded men, one would have to assume that the result would have been that while a vast majority of these men were able to marry someone whom they loved and wished to marry, only a small minority of these women were able to do the same. Since that was obviously not the case, other factors and considerations, less apparent, must have been at play.
See the discussion under the heading “Social Constructs” in Chapter 7, Context.
Suppose the more skillful and powerful husband here hires a more skillful and powerful attorney than his wife’s. How will she be protected then? If one of the purposes of our adversarial system is to provide protection for those who need it—in this case, to provide a balance to the imbalances in power which exist between the weak wife here and her strong husband—then instead of having each of the parties retain their attorneys freely and at random, adversarial proceedings would first assess the relative strengths and weaknesses of each of them, and if it did not then provide the less able of the two with a more skillful and competent attorney to balance out the superior strength of the other, it would at least see to it that the weaker party was assured of having an attorney of equal skill and competence. Needless to say, no member of the adversarial bar who professes his concern over these power imbalances has as yet proposed this solution.
Anyone who truly understands adversarial proceedings will also understand that the only protection they really offer is to prepare each of the parties to defend themselves in the inevitable conflict. However, the best protection they can be given is that which helps them to avoid it altogether. That is the kind of protection that mediation offers.
This will be discussed in Chapter 13, The Initial Meeting.
One of the most serious errors in current mediation thinking is its failure to appreciate that adversarial procedures are nothing more nor less then the expression of adversarial concerns and adversarial assumptions. One is the inevitable by-product of the other. It follows from this that if those same adversarial concerns and assumptions are carried over into mediation practice, then adversarial procedure will inevitably be carried over as well. In this regard, the reader is reminded of the various standards of practice that have been adopted by the advocates of divorce mediation, for example, those that insist that the parties must each have and receive independent (i. e. adversarial) legal representation and advice.
Lenore J. Weitzman, The Economic Consequences of Divorce: An Empirical Study of Property, Alimony and Child Support Awards; 8 F.L.R. (B.N.A.) 4037 (Aug. 1982). This study was eventually published by Professor Weitzman in her book, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America, (New York, NY: The Free Press, 1985).
Phyllis Chesler, Mothers on Trial; The Battle for Children & Custody, (New York, NY: McGraw Hill Book Co., (1986)
Diagnosis Confirmed: EDL is Ailing, 17 Fam. L. Rev. 3 (N.Y. State Bar Assoc, July, 1985). But see, Vertigo v. Vertigo, by Professor Henry H. Foster in response to this article, 18 Fam. L. Rev. 20 (N.Y. State Bar Assoc., Feb. 1986).
While these groups see mediation as leaving women without an attorney to protect their interests, they forget that it leaves their husbands in that same position also. If they really took their argument seriously, one would think that this trade-off would be to women’s benefit. While this suggestion may not be taken seriously, it is as serious as is the concern being expressed for these women. After all, if their husbands have the power and sophistication that they are supposed to have, and that their wives lack, they also have an advantage in being better able to select an attorney to represent them. More importantly, they may well be in a better financial position to do so. The logic that expresses concern for these women in mediation thus leads to a very curious result. Rather than affording them the protection that it is supposed to, adversarial proceedings may simply widen the gap in power between the strong husband and the weak wife by providing him with more adequate representation. If that is the case, mediation may tend to narrow this gap by denying him this opportunity.
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Marlow, L., Sauber, S.R. (1990). Power Imbalances—The Problem for Women in Mediation. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_8
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