Clients as Experts

by Suellen Walsh

As a new mediator I am fascinated with many topics of mediation. Power imbalances and how a mediator identifies power differentials and addresses them effectively is of particular interest.

One power imbalance I’ve been thinking a lot about is that between mediator and clients. The mediator as the paid professional and expert is by default the more powerful, regardless of the personality of client that might show up in the room. I believe that most of us have an internal bias that activates when we go to professionals. We are socialized to expect that the expert will tell us what to do to fix our problems. When people are in distress and more vulnerable, this belief system may be more activated. So how does a mediator effectively work with these overt or more subtle expectations to be directive? How do we help clients understand how we are different from advisors, attorneys and psychotherapists?

I learned during my recent divorce mediation training the importance of discussing at the onset of mediation the fact that a facilitative mediator is an “impartial neutral”. We practiced opening statements that included mentioning that mediation is a “self determined” process and that mediators do not make decisions or give advice. Mediators prepare clients to understand this, and I imagine that many clients initially often don’t fully grasp the complexity of what this stance really means and how it will significantly impact the process and outcome of mediation.

The belief that each person, couple, even couples with significant conflict, have more knowledge about their lives, their needs, and the needs of their family seems obvious, yet is not a position that may be easily accepted by both clients and professionals. Our culture of divorce has shifted the balance of power from the hands of the individuals far too often. I suspect that even for people who choose mediation, there are often obstacles to holding to this framework. I envision the mediator as the guide, constantly keeping the focus on the clients as experts of their own lives, despite the pull to deviate.

As a new student of mediation perhaps I am overthinking the process aspect to how this transformation and rebalancing of power between client and mediator occurs. I suppose that showing up, sitting together, and doing the work well is what allows the facilitation process to grow. I imagine the deep satisfaction that results when very difficult decisions get resolved by the hard work and dedication of the clients. I look forward to experiencing this process and hopefully being transformed by it myself too.

Suellen Walsh, Ph.D.

Suellen is an experienced clinical psychologist and a newly minted mediator in the start up phase of her practice. She loves to network and welcomes comments at [email protected]

Image Credit – Photo by AllGo – An App For Plus Size People on Unsplash

Top 5 Reasons to get Trained in Mediation

by Justin L. Kelsey

republished with permission from Skylark blog

Mediation is a process for resolving disputes with an impartial facilitator. The mediator helps open and improve dialogue between two or more individuals in hopes of finding an acceptable resolution for everyone involved.  There are many advantages to settling disputes through mediation, and we need more mediators in this world to help spread the word.

Register for Mediation Training

If you’re thinking about taking a mediation training here are five reasons you should do it sooner rather than later:

1. Mediation is good for Clients

Mediation helps clients because it is typically less expensive and more efficient than litigation, it gives the clients control over their timeline and the outcome, and it is private.  These are all things that clients typically value in resolving a dispute.  When educated about the benefits of mediation, most clients will be open to at least trying mediation before pursuing other options.  The risk is typically low and the potential benefit significant.  Potential clients will appreciate that you offer mediation as an option, and existing clients will appreciate that you are educated about a service they might seek to use.

2. Mediation is proven to Work

Most studies or programs that have tracked the settlement rate of mediation sessions, show that about 85-95% of the time mediation is successful in helping clients reach full settlement.  In addition, even in cases that don’t reach full settlement, there may be improvements in the relationship between the parties, which many might consider a success.  One study of family mediation found that parents were much more likely to have an ongoing relationship with their children after simply trying mediation for five hours, even if they didn’t settle. Read more about that study by clicking here.

3. Mediation is good for the Mediator

Speaking from experience, mediation is a rewarding process to be involved in.  The process of mediation gives clients power over their decisions, and even when people have difficult conversations, the majority reach an agreement that they feel in control of.  That process is empowering and meaningful, and as the mediator helping parties have that experience can be very rewarding. While not all lawyers are mediators, as a lawyer-mediator there is strong contrast between my experience in mediation and my experience litigating.  In litigation, people are often frustrated by how little control they have over the rules, the process, and the outcome.  It’s much more enjoyable to have clients who are happy with their process even when the outcome is not everything they may have wanted initially.

4. Mediation will Grow

The growth of online shopping and services, has led to a more educated class of consumers in the modern world.  Consumers want efficiency, and they want services that are proven to work.  Mediation is the settlement process that most closely resembles the online shopping culture, and if necessary mediation can even be conducted online with advancements in user friendly video conferencing software.  Mediation is going to continue to grow, and offering that service will become more and more of a necessity for dispute resolution professionals who want to keep up.

In Massachusetts, in order to take mediator referrals from the court, or to mediate with privilege, the statute requires that you take a 30 hour training.  The courts are inviting mediators into the courthouse more and more often to assist in resolving cases, and as this trend grows, there will be more and more opportunities to participate in mediation, if you’ve taken the necessary training.

5. Mediation skills are Life Skills

After taking the mediation training myself, I started recommending it to everyone I know, whether they will be a mediator or not.  Most mediation trainings include a focus on active listening techniques and interest based negotiation.  These skills will make you a better negotiator whether it’s part of your job or just in your own life.  These are skills that can improve your relationships and reduce conflict in your life.

If you’re interested in taking a mediation training, there are many opportunities including two trainings per year held by Divorce Mediation Training Associates, with the next training scheduled in March, 2020 in Needham, Massachusetts.  Learn more here: 40 hour Divorce Training.

Register for Mediation Training

Replace your cancelled Court Hearing with a Mediation

by Justin L. Kelsey

republished with permission from Skylark blog

If you have a court hearing scheduled in the next few weeks, most likely you’ve been told it’s postponed.  While some hearings will be scheduled telephonically and by video conference, the COVID-19 pandemic is likely causing significant delays in obtaining a hearing and an order or judgment.  This is understandable as the court and the bar figure out how to adjust to this crisis.  Regardless of how understandable these delays are, though, the experience for individuals going through conflict must be frustrating, disappointing, and in some cases devastating.

Now is the time to consider your alternatives to court.

Mediation, conciliation, collaborative representation, and arbitration are all available options to those looking to resolve their issues without further delay.  Many of these dispute resolution professionals already have experience using videoconferencing to meet with clients and for us, our business has continued almost uninterrupted.  At my office, Skylark Law & Mediation, PC, the majority of our clients have opted to continue receiving mediation and collaborative services via videoconferencing rather than postponing their meetings.  It’s not the same as being in person, but for clients, it’s better than waiting to address their pressing issues.

So, if your clients are frustrated by the necessary delays in the court process, consider telling them again about their other options.  If you’re looking for family conflict mediators you can find a list of professionals via the Massachusetts Council on Family Mediation website.  If your clients may not be able to afford a private mediator, consider the many community mediation services in Massachusetts that provide services on a sliding fee scale basis – all listed on the Resolution Massachusetts website.

If you’re looking for a specific recommendation for a dispute resolution professional in any area of the law, feel free to reach out to me directly, or post a comment to this thread with your referral request.

Finally, this crisis is also an opportunity to think about how we plan to deal with conflict in the future.  We can continue business as usual when this crisis has passed (which it will), or we can reflect on whether this crisis has highlighted a better way to approach conflict.  Take these steps to be better prepared the next time an emergency situation occurs:

  • Get to know a mediator or co-parenting coordinator who can be a resource for your family in times of crisis.  Don’t assume your lawyer or the court is going to be there to help, or that they should be your first call when there is a conflict.  
  • Encourage the Massachusetts Bar Association (or your local bar association) to add mediation, conciliation, collaborative representation, and arbitration, as service options in their lawyer referral directory.  This has been proposed before to the Mass Bar and rejected, but it seems like it may finally be time to recognize how important it is to have alternatives to the court, and that the professionals who offer those alternatives offer a vital service.

Are Mediators in Massachusetts Certified?

by Justin L. Kelsey

republished with permission from Skylark blog

I get this question from lawyers a lot who are wondering if a particular training will “certify” them to be mediators. In fact, I just received an inquiry today related to the upcoming 40-hour online mediation training provided by Divorce Mediation Training Associates (more info below):

Are Mediators in Massachusetts Certified?

What Mediation Training results in a Certification?

In Massachusetts there is no government certification or license provided by the Commonwealth certifying mediators. There are some court rules and statutory provisions, however, that require a 30 hour training for certain activities and I believe this is where the misconception about “certification” stems.  The court rules and statutes that require training are:

While these are state requirements, training does not “certify” mediators under these provisions; training simply qualifies mediators to meet these requirements.

Some private organizations do provide certification for mediators, including the Massachusetts Council on Family Mediation, Inc. Those private certifications often have more stringent requirements. For example, MCFM requires an additional 60 hours of training (on top of the 30 hour basic training) as well as a certain level of experience to qualify for their certification. For more information on MCFM’s requirements read: How does a Mediator become Certified?

If you see a mediator claiming to be certified you should ask what organization has provided their certification and what are the requirements for obtaining that certification because, not all certifications are created equal.

If you’re interested in more reasons to take mediation training read: Top 5 Reasons to get Trained in Mediation.

If you’re ready to get trained, Divorce Mediation Training Associates is holding a 40 hour online Mediation Training that not only qualifies for the three Massachusetts state requirements above, but goes beyond and meets the national standard of 40 hours of training.  The training begins on April 22 and will take place over nine mornings from 8:30 AM to 1:00 PM (UPDATE: We’re doing another training in July as well!).  Learn more and Register here.

You’re Thinking about Conflict All Wrong

by Justin L. Kelsey

republished with permission from Skylark blog

Today is the third Thursday of October, which also happens to be Conflict Resolution Day.  While that may not seem as fun as International Pancake Day, Conflict Resolution Day is an opportunity to think about the challenges we face in our lives, and wonder:

Is there a better way to think about conflict; a model which can free us from our fear of conflict?

Conflict is a part of everyday life.  In our individual struggles to survive, grow, connect, and control the world around us, we often find that someone or something is in our way or making it harder to reach our goals.  It is a natural, animal instinct to envision these conflicts as a simple dichotomy: me v. you, us v. them, plaintiff v. defendant, the hero v. the villain, etc.  We see conflict most simply as a tug of war between two positions, two competing interests.  But what if we’re thinking about conflict all wrong.

If I win, you lose.  If you win, I lose.

Picturing conflict as a one-dimensional struggle between two forces allows us to frame the conflict in an easy to understand way.  If you’re wrong, then I’m right.  If what I want is good, then what you want is bad.  It is a tug of war between two positions, and there are only four options for resolution: you win, I win, we compromise (we both lose something), or we end in a stalemate.
However, when we see this conflict dynamic in a two-dimensional space it can help us see that there may be additional options for resolution.  

Negotiating between two positions, what you want v. what I want, assumes that the resolution can only be located somewhere on the compromise line depicted above.  In this graphic representation, we limit ourselves to a solution that exists on the line between “You Win” and “I Win”.  Those limitations also limit our process options, the choices of how we will resolve the conflict.  If you won’t give in or compromise then I must either use force to change your mind or seek an outside decision maker.  I either given up my agency or force you to give up yours.

These limited options both for process and resolution, explain why conflict often makes people feel hopeless and powerless, like they are losing control, or it turns them into bullies.  The good news, is that we don’t have to resort to these methods when we expand our view of conflict beyond one dimension.

In a two-dimensional model of conflict there are significantly more options both for resolution and problem-solving.  There are numerous options below the compromise line in which we both lose more than if we compromised.  This is often the result in litigation because the emotional and financial cost of the fight reduces the potential result by those costs.  A fight is not a zero sum game.

However, there are also numerous options above the line.

There are options where we both get what we want when we view conflict in two dimensions instead of one.  A two-dimensional conflict resolution model looks at the possibility that conflict is more like an Olympic race than a tug-of-war.

Most of the racers in the Olympics know they aren’t going to beat the favorite, the Usain Bolt or Michael Phelps.  So why do they show up, then?  They still show up to the race because they are racing for something else.  They may be racing against their own time.  The may be racing to represent their pride in their country.

They crossed the finish line just like the “winner of the race”, but they won something different.  

We often assume that everyone in the race has the same goal, and because of that assumption, we see one winner and the rest as losers.  This is an oversimplification.  We know that most people don’t have a chance of beating Usain Bolt in a footrace, and at the same time we may still be successful people.  We have different goals.  Even Usain Bolt will “lose” his share of races to others, and that doesn’t change what he has accomplished in the past.

The result of conflict can be a success for everyone involved when we look at conflict differently, when we look beyond the tug of war and see that our goals may overlap in some ways and diverge in others.  Even this two-dimensional model is limiting because it assumes that our own interests are linear.  As complicated beings we not only have multiple interests, some of our own interests can be in conflict.

The most accurate way to view conflict may actually be an imperfect sphere of intersecting lines of interest.  Viewing conflict in this way helps us see that every conflict has many, many possible resolutions, and is rooted in many potential competing interests.  The skills and techniques used by  mediators, and other conflict resolution professionals, aim to help people in conflict step back and see the forest through the trees.  When people see their conflict differently, as a three-dimensional problem they can solve together, then the process of finding resolution can be as complex and as beautiful as this sphere.

The most revolutionary transformation of conflict comes when we let go of the rope between us and see each other not as enemies, but as joint observers of the problem.  Leaving behind a one-dimensional view of conflict, frees us all to be more creative problem solvers.  A two or three-dimensional view of conflict also frees us from the need to use force, or give up control, in order to resolve the conflict.  Instead when we are joint problem solvers, conflict is a challenge that we can tackle together, and the process itself leads to a greater understanding of each other’s core interests.

In conflict between people that have an ongoing relationship, like families, neighbors and co-workers, this process of understanding can actually help resolve (and maybe even prevent) future conflicts as well.  It may sound corny at first, but this broader model of conflict resolution can help us recognize the potential beauty in both the process and resolution of a challenge.  It can help us see the opportunity in conflict and take away the fear that makes us avoid conflict.

Facing conflict (both inside ourselves and with others) helps us better understand our place in the world and grow our selves and our relationships.‬  Let us not fear conflict anymore, but face it with a better understanding of it’s inherent beauty, complexity, and it’s relation to our identity.

It’s time for less BUTs in mediation

by Justin L. Kelsey

republished with permission from Skylark blog

Use “and” instead of “but”.  It’s a simple change that in conversation and writing can mean a world of difference.  That difference is inherent in how we hear and read the word “but”. 

“But” has a negating connotation, implying that everything that came before it isn’t true.

I think this is a valuable lesson, but it’s not revolutionary.  I think this is a valuable lesson, and it’s not revolutionary.
Which one of those sentences gives you the impression I think both things are true (which I in fact do believe)?  Obviously the “and” changes the way we read that sentence.  In fact, you only have to search google for the phrase “and instead of but” to see that many people have shared this idea before me.  It’s not revolutionary, and it remains a valuable lesson, especially for mediators and negotiators.

Frankie, a contributor on Medium, highlighted that the importance of making this change is rooted in the fact that two things can be true at once, even when sometimes those things seem at odds.  Imagine how powerful this idea of dialectic truths can be in mediation:

I love you but I don’t want to be married anymore.I love you and I don’t want to be married anymore.
The “and” makes the “I love you” seem genuine.  It’s another thing that’s true despite the second truth.  Now imagine how different these two sentences might be received in a divorce mediation.  Just knowing the difference could significantly change the tone of a conversation.

As mediators we are often modeling good communication for our clients, and this is another opportunity to do that.  In addition, it’s often important to validate our clients concerns as part of effective active listening.  If we, as mediators, acknowledge a concern, and redirect with the word “but” we are potentially signalling to that client that we don’t think that concern is important:

I hear that you have concerns about being equal parents, but I think it might help if we discuss the specifics of the parenting schedule.

I hear that you have concerns about being equal parents, and I think it might help if we discuss the specifics of the parenting schedule.
The first option implies that the mediator is trying to change the subject, while the second option, with only the one word difference, suggests that the mediator believes the specifics could help address the parents concern.  The mediator is redirecting the client to a more specific topic that might help them make progress, and at the same time validating the concern rather than dismissing it.  It can both be true that the client has parenting concerns, and that addressing the schedule could alleviate some of those concerns.

This has become one of the tips & tricks we share in mediation training and we encourage you to try it out in your personal and professional life.

If you’re interested in learning more about upcoming mediation trainings you can visit Divorce Mediation Training Associates’ information or registration page.

Thank you to Amy Martell of Whole Family Law & Mediation who first brought this issue to my attention at a collaborative law training.

If you’re interested in learning more about upcoming collaborative law trainings you can visit Massachusetts Collaborative Law Council’s Intro Training information and registration page.

The Questions that Lawyers and Mediators aren’t asking but should: Let’s talk about Pronouns

by Justin L. Kelsey

republished with permission from Skylark blog

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is “What do I want?” But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is “Who am I?”

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients’ identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who am I?” in the most basic form because most of us don’t ask two simple questions:

My Preferred Name or Nickname is: _________________

My Pronouns are: _________________

Who am I?

Before continuing, I want to acknowledge that I may not be the best person to write this article because I have not personally experienced any societal pressure regarding how I self-identity. I was assigned male at birth (AMAB) and identify as male (this is referred to as cis-gender). I am also white living in a predominately white town, county, state, and country. I am heterosexual. I am tall, broad-shouldered, and I have a deep voice. All of these things mean that when someone sees me in my community many of the assumptions they make about me are probably correct without my having to say anything about how I identify.

This is privilege because I am acknowledged and respected for how I identify myself, without ever having to explain it or feel excluded. It is privilege because it is not a benefit that everyone enjoys. I get to define myself and my hope is that you, the reader, will see that everyone should have the same right to define themselves without having to explain it or feel excluded.

Although I may not be the best person to write this post, I believe it is also important for allies to share their support and to acknowledge that while my voice comes from a place of privilege, it is also my responsibility to use that privilege to support those denied the same voice. In doing so, though, I’m going to rely heavily on the resources and assistance of others who speak from personal experience.

Educate Yourself

In the past, I made assumptions about how I to refer to clients, and what pronouns they use. I am guilty of asking my clients only for a full legal name. If I asked a client what name to use, it was often a lawyer-like leading question: “I prefer to use first names, is that okay with you?” I never asked about pronouns. This is partly because I hadn’t had enough education about the many ways in which people might self-identify, but primarily because of the silent but present privilege inherent in my own identity.  I didn’t think it was important because it wasn’t important to me.

I can honestly say, in my lifetime, no one has asked me what my pronouns are and have always assumed my pronouns are he/him. As I explained above, this has never been a problem for me because those are the pronouns that reflect my cis-gender identity. I had to educate myself about the question “Who am I?” to realize the frustration I may be unintentionally causing my clients. Luckily, we live in an era where resources are available and plentiful to educate oneself about the complicated nature of identity. 

I took a course offered by Massachusetts Continuing Legal Education on Transgender Persons & the Law (that program is still available as a webcast here) and I recommend it. You can also find resources online or from your local LGBTQ+ groups.  One site that has particularly helpful resources is the Trans Student Educational Resources site, including a visual breakdown of the differences between gender identity, gender expression, and sexual orientation, the Gender Unicorn.

Graphic by TSER, click for more info.

As a visual learner, I found this resource particularly helpful.  They have also provided a table describing some of the most common gender pronouns, and an explanation of their use:

Graphic by TSER

Why ask about Pronouns?

To show respect for our clients and each other, we should be asking, not assuming, “Who are you?” To those of us who do not have the burden of explaining why we identify as we do, it may seem as if correct pronoun use is not a huge deal. However, for those who find themselves misgendered and with the need to explain who they are at a fundamental level day after day, the need to explain and educate others can go far beyond being annoying to exhausting and even trauma inducing.

At the MCLE program I attended, one of the panelists made a very simple point: what does it cost you to provide this level of respect to others? Essentially it costs you nothing. The small amount of time it takes to learn about and familiarize yourself with pronoun options is nothing compared to the positive impact it can have on someone who feels accepted and recognized, especially if that is not a common occurrence for that person.

Particularly for lawyers and mediators, the importance of having our clients feel heard is paramount to an effective client relationship. Below are links to a few articles discussing the effects of misgendering, and how asking about pronouns can affect a person’s mindset and health:

Health Line: What Does It Mean to Misgender Someone?

The Aragon Outlook: The Power of Pronouns: How misgendering can affect student health

The Undeniable Ruth: Which Pronouns do you Prefer?

Next Steps

Hopefully at this point you agree about the importance of allowing everyone to self-identify. So, what can you do to help?

Ask the Question

When we know better, we can do better. What does that mean for our clients with respect to pronoun use and gender? It’s really simple: stop making assumptions and ask a question right up front. Lawyers and mediators should add a line to intake and scheduling forms so that clients can answer the pronoun question, without feeling the need to educate or explain how they identify.

Be thoughtful about the way you ask the question. While some people state that they “prefer” certain pronouns, others find the idea that it is a “preference” offensive because we never refer to cis-gender individuals as “preferring” their gender, it just is who they are. On an intake avoid asking what they prefer, and ask simply “What pronouns do you use?” or “My pronouns are:_________.”

In conversation, start with an introduction “I’m Justin Kelsey, my pronouns are he/him.” This invites the question possibly without even having to ask it by demonstrating first that you are open to the other person identifying their pronouns as well.This can be done when communicating electronically as well.  You can set a tone of open acceptance by proactively identifying yourself even if it is not something you have historically felt the need to do. Lawyers and Mediators should be including this information in their e-mail signatures. Below is a sample:

Peace ☮

Justin L. Kelsey, Esq.  


Collaborative Divorce  |  Mediation

Skylark Law & Mediation, P.C.
  A:  9 Main St. Southborough, MA 01772
  T:    508.655.5980
  E:   [email protected]
  in:   Linkedin
   t:    @skylarklaw

You may also want to consider adding pronouns to your social media profiles. These are easy steps that demonstrate to our clients (and our colleagues) that we have a basic understanding of the need to be correctly identified through correct pronoun use in personal interactions.

Listen to the Answer

Once you know someone’s pronouns, use their pronouns without judgment and without questioning. If you have questions, remember that it’s not their job to educate you about the concept of gender identity.  Consider reviewing the resources we’ve provided above instead of asking questions of someone who may already be exhausted or traumatized from being misgendered during their lifetime (for more information watch this video on Thing Not to Say to a Non-Binary Person) This is especially true when you have not established a relationship that includes trust and understanding.

If and when you engage in a dialog with someone about gender, LISTEN first. If you feel like you want to ask questions, always ask yourself if your question could cause additional trauma and if it’s something you could educate yourself on later without placing the burden on your client.

We all make mistakes as well. When using pronouns that may be different than you’re used to it may be uncomfortable at first. Just remember how uncomfortable it must be for the person who is misgendered throughout their life, and if you make a mistake, simply apologize.

Finally, Get Political

It is important to think about the big picture here and to be supportive at a political level too. Ruth Carter, a non-binary lawyer, author, and speaker, kindly agreed to assist me in reviewing this article and has written a helpful piece about the need for non-binary gender recognition on government IDs.

Here in Massachusetts, there is a chance to vote on transgender rights on November 6th. The ballot Question #3 asks MA voters to essentially affirm a law already passed by the legislature that would prohibit discrimination in public accommodations based on gender identity, further described here.

If you are a MA resident, we encourage you to vote YES on Question #3, and to spread these educational resources about identity so others, especially those in privilege, can better understand the complicated nature of identity and how easy it is to show respect for another person’s identity simply by having an open and curious mind, which is the most important tool a lawyer and mediator has to offer.

UPDATE: Question 3 passed with almost 70% of the votes, a resounding affirmation that Massachusetts residents support transgender rights and protections and refuse to stand for discrimination based on gender identity.  While this is a positive sign, the law itself does not prevent people from being discriminated against.  In order to continue to do better, we must insist on enforcement of the law, seek out and share educational resources about gender identity, and continue to work together towards better understanding of each other.  The success of question 3 is a step in the right direction, now let’s keep asking the right questions.

Thank you to Ruth CarterJennifer Hawthorne, and Rackham Karlsson for their assistance in editing and reviewing this article.

Wanted: Diverse Divorce Practitioners. Why Diversity is Good for All of Us

by Valerie Qian

republished with permission from Skylark blog

Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.

My father-in-law recently underwent surgery to remove a kidney stone. It happened at a big hospital in New York City which, I understand, has an excellent urology department. As a first-generation immigrant from Shanghai, my father-in-law speaks limited English. After the surgery, while he was still slightly groggy from the anesthesia, a surgical resident who spoke some Chinese told him, without an interpreter, that the surgery went well and that 90% of the stone had been removed. A week later, my husband found out from the surgeon who actually performed the surgery that the stone was still there in its entirety and had not been removed, and my father-in-law needed a second surgery. My father-in-law went from thinking that the stone had been mostly removed, and the surgery successful – to being told that the surgery had not resulted in removal of the stone at all, and that he needed another surgery.

This was in spite of our being convinced, after learning the full story, that my father-in-law’s surgeon was an excellent surgeon and had made the best medical decisions under the circumstances during the surgery.  So how did the lines of communication get so crossed? 

There is an unspoken and unreasonable tendency to assume that professional services – such as getting your kidney stone removed, or negotiating a divorce – are somehow divorced from real life. We assume that the professional only needs to be someone who knows how to do their job – and that their cultural background, their “bedside manner,” their manner of relating to me and communicating with me as a human being, is irrelevant or not as important. This is a grossly inaccurate assumption – as much in the operating theater, as in the legal field. Cultural competence and sensitivity to the needs of diverse clients are an essential part of being an effective and successful professional.

History, religion, attitudes towards gender roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage 
– and tangle, when a marriage is broken up.

This is even more the case in the context of family law, where cultural competence may be crucial to a divorce practitioner’s ability to fully understand and advise a divorcing couple, or one of the parties to a divorce. No one can deny that every culture approaches marriage and family in very different ways. Even just looking at the wedding ceremony itself, this is abundantly clear. History, religion, attitudes towards men’s and women’s roles, norms about the purpose and role of the family, and the importance of individual happiness versus the collective good of a society, are all many-colored threads that run through a marriage – and tangle, when a marriage is broken up. Nobody is looking for divorce and nobody expects it to be pretty.

Especially when a couple seeking a divorce comes from a culture that holds marriage and family in high regard, it should be approached delicately. It’s a situation that calls for sensitivity, and cultural and ideological literacy.  This is why we need more diverse family law practitioners.

The importance of cultural understanding: Couples from diverse backgrounds need diverse family law mediators or attorneys, who may be better equipped to understand the cultural nuances operating between a divorcing couple if they share that cultural or ideological background. There may be unique stigmas faced by a divorcing couple from a specific cultural background: shame and ostracization; heightened incentives for privacy; and potentially many more players involved in the decision-making process than just the two parties.

Parties should not shortchange themselves nor discount the importance of having a mediator or attorney who understands the interplay of these many factors. Having just one culturally-sensitive collaborative attorney on a collaborative team for a divorcing couple could mean that the team as a whole – both attorneys, and the coach, and any other neutrals – approach a couple from a different cultural background with much more insight and sensitivity, too.

The importance of feeling understood:  We need diverse practitioners all the more in out-of-court processes such as collaborative law and mediation, where the parties to a dispute retain control of the decision-making process from beginning to end, and are not giving it up into the hands of a judge as they would in litigation. When so much elbow grease is required outside of the courtroom and from the parties themselves, a culturally-sensitive or literate mediator could mean the difference between settling a case and getting stuck at an impasse that exists because of some unspoken and ingrained cultural or ideological value that one or both of the parties subscribes to, but is unable to or does not ever think to share.  It could also mean the difference between a party feeling comfortable enough to trust and build rapport with the practitioner(s), an element that is key to effective dispute resolution.

Diversity strengthens the professions as a whole: Couples from all backgrounds can benefit from help from diverse family law practitioners. In out-of-court processes in particular, a diverse practitioner’s varied experiences and competency at adaptation, flexibility, and thinking outside the box (because they have been forced to, coming from a non-mainstream culture) can be invaluable to crafting out-of-the-box solutions to problems that might seem insurmountable when approached from a more traditional perspective.

In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example.

The family law bar needs diverse practitioners, so it can grow within itself and broaden its perspectives and approaches to diverse populations, and also sharpen its ability for out-of-the-box thinking. The family law bar should foster diverse and culturally-sensitive practitioners if it really desires to provide access to the law to a diverse population.

In many ways our country has been taking a long, hard look at ourselves, and reevaluating whether it is really true that as a nation we hold certain truths to be self-evident – about race, race relations, cultural diversity, and the value and place of women in society, for example. Our choices reflect and test who we really are. We should walk the talk – and show by who we foster and mentor among our colleagues, and by who we seek to hire to help us with our problems – that we really believe diversity matters. For my Shanghainese father-in-law who deserves to know what happened in his two-hour surgery – and for all of us.

Bargaining in the Light of the Law: The Case for Divorce

by John Fiske, Esq.

In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser. discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979.  We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed.

The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.

Light Dawns

So where are we now? By 2017 divorce law has  become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.

A glimmer of light appeared in October, 1978 when  Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor;  that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”

As more lights appeared, the shadows diminished.  The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes. The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.

The Alimony Reform Act of 2011 sheds more light on various alimony questions, making it clear that the law allows short term alimony, proposing a simple formula for calculating the amount and even provides time limits. For example, the shadow of cohabitation is specifically illuminated: couples can choose from a menu of alternatives from revision or termination of alimony to suspension during the cohabitation period. The appellate courts have been conscientious in taking appeals to clarify various provisions in the Act. For example, in Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) the Appeals Court held that a judge cannot enter an alimony order for a fixed percentage of the payor’s income in the future because this “self-modifying” order is not supported by findings, etc. But nothing prevents couples from entering separation agreements providing for such flexible arrangements and courts from approving these agreements. In George v. George, 476 Mass. 65 (2016) the Supreme Judicial Court said temporary alimony does not affect the length of general term alimony obligations. Similarly, questions about when it is appropriate to attribute income to either party have been clarified in Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2017), thereby limiting one of the few remaining alimony and child support issues for lawyers to argue about.

Pesky question of property division have been similarly clarified by case law, such as the role of property inherited before, during or after the marriage and whether family trusts are marital property to be divided or mere expectancies which may or may not occur. Lauricella v. Lauricella, 409 Mass. 211 (1991) and Pfaffenstiehl v. Pfaffenstiehl, 475 Mass. 105 (2016).

Effects of Light

One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if the case were tried, the question is whether the court will approve the agreement the clients have reached. For clients interested in private ordering, that is the real concern. How long alimony or child support should last is already defined, and parties can agree to something different now that they can make an informed decision. In a mediation this July the husband with $80,000 of income said he thought they should make their incomes equal though his wife had no income, and she agreed. They knew that the law would only require him to pay one third of the difference in their incomes: they each knew what they were getting and they each knew what they were giving up. They felt this agreement to be fair and right, and their only question was whether the court would approve it.

It remains important for couples to know what the light of the law is, not to tell them what to do but to give them some objective criteria by which to judge their own solution. In Getting to Yes, Fisher and Ury recommend four principles of negotiation ending with consideration of some objective criteria. Houghton Mifflin Company (1981) p. 84. Here the illuminating law can be of great help, not to dictate but to inform their own solution.

“’I am half sick of shadows,’ said the Lady of Shalott” in the poem by Tennyson, but her facing reality had unhappy consequences. While I am glad to see the law moving us out of the shadows, we can hope for better informed settlements of divorces and other family disputes. Parties can know the norms and make their own choices when and how to adapt to them. Lawyers can have more  confidence in predicting whether negotiated and mediated agreements will be approved by the courts, and can inform clients what they are gaining and what they are giving up in reaching their own solutions. As Superior Court Justice Douglas H. Wilkins pointed out in his letter to Lawyers Weekly on July 17, 2017, new court rules provide further support for early mediation: the path to a desired result is not only illuminated but can be significantly shortened by helping lawyers, mediators and clients to discuss appropriate settlements from the very beginning of a case. Children benefit from their parents reducing conflict. We can spare the courts unnecessary litigation, and sleep better nights.

How Mediation Can Effectively Address the Male-Female Power Imbalance in Divorce

by Diane Neumann

“Women’s advocates,” writes Carol LefCourt (1984), “view the trend toward the use of mediation [in divorce] with justified skepticism and suspicion” (p.7A-40). Feminists have been the most vocal and persuasive group in stating their concerns about women who use the mediation process to reach divorce settlements. As LefCourt notes, “An examination of mediation must focus on the impact of power, particularly gender-related power, on the process. The state of sexual politics in America today is such that, even in theory, mediation is not appropriate or desirable. Most women are not equal to their male partners in bargaining power and experience, or financial resources” (p.7A-40). Mediation, feminists assume, does not affect the existing power imbalance between men and women members of divorcing couples, with the result that the more powerful male spouse typically wins more than an equal share of the marital assets.

Mary Joe Frug (1988, p.1) described herself as a feminist: “For me, that word means that I am committed to two goals: (1) I hope to advance the position of women socially, economically, and in their personal relationships, and (2) I seek to undermine and undo the effect of gender on the lives of women and men.” Andrea Dworkin (1976) argues that biological determinism is at the root of male supremacy ideology. Historically, she explains, men have prospered merely because of their gender. Being male gives one the ability to control females. Dworkin views the power of men as a class issue: because men belong to the privileged class, each man has power over every woman. Adrienne Rich (1976) explains that the superior power held by members of the male sex is created by society. She argues that the foundation of society must change before individual power dynamics between men and women can change. Without fundamental changes in society’s sex roles and systems of power distribution, the male/female imbalance cannot be addressed. Rich argues that “Personal and social change is dependent on change in the patriarchal foundation of society, i.e., on a restructuring of power relations that have maintained the status quo” (p.243). Even this brief review of feminist theory helps to explain why feminists distrust the mediation process. Women’s rights advocates hold that mediators cannot address the power differences between divorcing husbands and wives because a mediator is powerless to change the fundamental rules of patriarchal society.

Feminists admit that mediation may work when spouses have relatively equal degrees of power, but they insist the mediation is not appropriate when significant power differences define husband and wife. As Jessie Bernard (1989, p.143) notes, “the general structure of the traditional American family, where the husband-father is the provider and the wife-mother is the housewife, began to take shape early in the 19th century.” Feminists point to the female spouse in a traditional couple as a classic example of women who are not appropriate for mediation. “The average woman,” writes Schulman (1983, p.3) “is not equal to her husband in bargaining power.”

Divorce mediators, though they acknowledge a power imbalance between their divorcing clients, claim that power dynamics change during divorce, indeed, that the divorce crisis itself creates a climate for change. The dynamics of the crisis enables the mediator to intervene in the couple’s power dynamics to effectively help them reach a reasonably fair settlement.

As a divorce mediator, I believe that assessing and addressing power differences is central to the mediation process. The professional divorce mediator can, indeed must, be able to affect those imbalances in order to arrive at a fair and lasting agreement.

I have been a mediator and a committed proponent of divorce mediation for ten years. But I have been an ardent feminist even longer. To an outsider, my roles as a divorce mediator and as a feminist often appear mutually hostile and unbridgeable. But fellow mediators and feminists simply do not understand the basic realities of negotiation, divorce, gender, and power. In this article, I will describe how these two seemingly diverse roles can be reconciled, how one can acknowledge power imbalance based primarily on gender, and yet, because of underlying dynamics of the divorce crisis, simultaneously intervene and adequately address the power imbalance between divorcing spouses.

Is There a Power Difference Between Traditional Divorcing Spouses?

What is power? Most of us define power as “the ability to get what one wants” (Parenti, 1978, p.4). John Haynes (1988, p.278), probably the most well-known mediator in the United States today, defines power as “control of or access to emotional, economic, and physical resources desired by the other person.” Haynes believes that power is derived from the ability to influence the actions of others. I think most people would agree with these general definitions of power. But to really understand power, one needs a more specific definition. I believe that power has four defining features: (1) power is composed of many factors; (2) it is relative, situational, and shifting; (3) everyone has some degree of power; and (4) power is only effective when it is used. For divorce mediation I would add a fifth feature: not every power difference between spouses affects the mediation.

The first feature, that power is comprised of many factors, provides a foundation for the discussion that follows. It is important to recognize that power is one factor in the same way that blue eyes, a high IQ., or a voracious appetite is a single characteristic. Power arises from a complex interplay of myriad factors. The following ten factors all contribute to an individual’s power:

1. Belief system – a belief that one is on the side of right.
2. Personality – the image one projects, how powerful one acts.
3. Self-esteem – the internalized image of oneself, how powerful one feels.
4. Gender – Western society grants men greater power than women.
5. Selfishness – consistently putting oneself before others is a form of power.
6. Force – willingness to use coercion or threats and the fear engendered in others is a form of power.
7. Income/assets – power increases with income and the accumulation of assets.
8. Knowledge – possessing information is a form of power.
9. Status or age – increased status confers increased power, and power usually increases with age.
10. Education – higher levels of education are associated with higher levels of power.

Second, power is relative, situational, and can shift. According to Haynes (1988, p.278) power is relational, “power does not reside with one partner all of the time.” An individual has power only relative to another person. Power is also situational, which means that an individual has varying degrees of power in each of his or her roles. For example, a woman typically differs in the degree of power she has in her roles as mother, wife, supervisor, and volunteer committee member, while a man may have varying degrees of power in his roles as father, husband, CEO, and member of the Elks club. Degrees of power shift according to circumstance. For example, at the workplace, the chief executive officer of the company has far more power than does his assistant. However, on a weekend trip to Maine, where both men participate in a white-water rafting trip, the CEO’s greater power in relation to his assistant will not transfer to the new situation if the assistant is an expert white-water rafter and the CEO is on the rapids for the very first time.

Third, even if one person has more power than another, each person has some degree of power. The traditional couple displays power differences. Typically, a male spouse has greater power than his wife. But because women as a class have less power than men does not necessarily mean that a woman in mediation has no power, or too little power to engage in meaningful negotiations. She has some degree of power. A woman may feel that she has no power, yet she chooses the food her husband eats, decides how to prepare it, determines when to serve it, and later rules about whether to save the leftovers and what to do with them. Within a mediation context, at tax time, an unemployed wife may suddenly find herself in a powerful position when her husband requests her to sign the joint income tax form.

Fourth, degree of power, awareness of having power, and exercise of that power are three separate things. An individual who has power may or may not be aware that she or he has power, and may or may not use that power. More often than not, the individual must be aware of her or his power in order to use it, but this is not always the case. Mediators must remember that a client can be helped to use his or her power. An example may shed some light. During a mediation session with Greg and Judy, I began by providing background information concerning alimony. I then asked, “How do you each feel about paying or receiving alimony?” Greg quickly replied, “I won’t pay it.” I reframed his statement to “You prefer not to make alimony payments?” He nodded his head vigorously. I turned to Judy, who responded to my inquiring expression by replying, “Well, what can I say? You heard him say he won’t pay alimony.” I explained that Greg had stated his preference in response to my question, and then said, “What is your preference?” Judy then said, “Well, maybe I do want support from Greg.” In this manner, a client can be helped to use the power that she has. Judy exercised the power that she had to state her choice for alimony. She was empowered by the mediator.

Fifth, not every power difference between spouses affects the divorce settlement. Often in divorce mediation I see couples in which one parent is especially concerned that a child continue to be brought up in a particular faith. That parent has a great degree of power regarding a specific issue, the religious upbringing of the child, but usually this kind of specific power imbalance does not affect other issues.

Many feminists have expressed the belief that the female spouse in a traditional couple has less power than the male spouse, and that this power imbalance remains unchanged during the mediation process, with the result that the women receive less than their fair share of assets, and so forth. Joanne Schulman (1983), a staff attorney with the National Center on Women and Family Law, cautions women against the use of mediation: “There are any number of factors which can create inequality between the parties. Overwhelmingly, they are factors which tend to favor men over women.” She lists the following as garnering more power for men: greater income, greater career mobility, more knowledge of family finances, thinking that earnings or assets are “his,” more experience at bargaining, and willingness to use power and control tactics.”

Men as a class do have more power than women as a class, but some men have less power than some women. Studies of marital relationships are fairly consistent in indicating that husbands have greater power than their wives, though the research also indicates a change toward egalitarian marriage. The well-known 1960 Blood and Wolfe study on marriage concluded that “the roles of men and women have changed so much that husbands and wives are potential equals with the balances of power tipped sometimes one way, and sometimes the other” (p.88). A significant number of individuals, however, take issue with this conclusion. D. Gillespie (1971,p.457), a respected feminist researcher, writes that “the equalitarian marriage… is a myth.” She recognizes that change is coming, but notes that society continues to have a significant number of traditional couples, where, by definition, the husband has substantially greater power than the wife. For the remainder of this article, I will focus on this traditional couple and on their ability to use the mediation process.

Therefore, in answer to my first question, “Is there a power imbalance between traditional divorcing spouses?,” I would respond “Yes.” The male spouse does have more power than the female spouse. How, then, can the mediation process result in a fair settlement for this couple?

If a Power Imbalance Between Men and Women Exists, How Can Mediation Be Fair?

Despite disparities in spousal power, divorce mediators can help clients reach fair agreements. The mediation process, the role of the mediator, and the nature of the divorce crisis itself combine to produce fair agreements.

The Mediation Process. The mediation process is a short-term, goal-oriented procedure based on the principle of informed decision making by each individual. A client in mediation must be able to listen, to understand information, and to make decisions. The goal is to reach a fair and mutually satisfactory settlement. Clients typically report that they feel that the process was fair (Kressel, 1985).

The mediation framework emphasizes a cooperative approach. The mediator usually ensures active participation by the clients by employing task-oriented tools. The mediator might use budgets, for example, to help clients understand finances as a step in the process of financial negotiations. When necessary, the mediation may involve other professionals, such as attorneys, tax and financial consultants, appraisers, and child psychologists.

The mediator creates a framework for the divorce negotiations. The mediation procedure allows the mediator to take steps to ensure reasonable equality. Davis and Salem (1984, p. 19) describe the mediator’s “innate ability to address power imbalances.” The structure of the mediation process allows the neutral mediator to balance spousal power by controlling the procedure, determining the course of the negotiations, and reaching the final settlement.

Role of the Mediator. The issue of power does not end with an examination of the clients’ power. Analysis of the power dynamics within the mediation process must include examination of the mediator’s power. Though the mediator is impartial, his or her impartiality should not be construed as a lack of power. The power of the court-appointed mediator is readily apparent: she or he clearly has the authority of the official court behind her or him. The power of the private mediator is not so apparent, but it is very real.

A mediator’s power derives from his or her control of the entire process. This control manifests itself in nine ways:

1. Creating the ground rules.
2. Choosing the topic.
3. Deciding who may speak.
4. Controlling the length of time each person may speak.
5. Allowing and timing a person’s response.
6. Determining which spouse may present a proposal to the other.
7. Presenting an interpretation of what the spouse said.
8. Ending the discussion.
9. Writing down the agreement.

Note that every element of power listed is controlled by the mediator. The mediator actually has the most power in the room.

The mediator must recognize the power dynamics between the clients in order to address the power imbalance between spouses. Clients express power in mediation in a number of ways. A basic indicator of power is nonverbal behavior, which is often more indicative of power than is verbal expression. Careful observation of nonverbal expression is an important key to assessing power disparity.

As a general rule, the spouse who frequently looks to the partner is the less powerful spouse. Specific indications of power are difficult to describe because often the same behavior, whether verbal or nonverbal, may indicate either power or the lack of power. For example, the spouse who proposes a division of assets would appear to have greater power, yet the spouse who says “No” to that proposal may also hold a significant degree of power. It is not unusual for entirely different behaviors to indicate the same degrees of power. Consider one client who is “talking” and one who is “silent.” Each behavior may indicate power, or each may reflect powerlessness, depending on the particular circumstances. The silent individual may refrain from speaking because of a lack of interest or confidence in an area; in this case, silence indicates powerlessness. But an individual may remain silent because she is so sure of herself she feels no need to speak; in this case, silence indicates power.

Sometimes the signs of greater power are blatant, yet many times the exercise of significant power is subtle. If I order you to “Get me my coat” and you obey, I obviously have power over you. But if I do not order you to fetch my coat, and without a word or even a glance from me, you run and get me my coat, I probably have a greater degree of power over you. The mediator’s recognition and assessment of the subtle indications of power are crucial to a successful mediation.

Effect of Crisis. Divorce, the experts agree, is a crisis. “Crisis” denotes severe instability, a world blown apart. The separation and divorce transition differs markedly from the relative stability of the intact marriage. As Yahm (1984, p.60) notes of divorcing clients, “the very structure of their lives is often undone.” Two important aspects of divorce mark it as different and more stressful than other forms of life crisis. First, divorce is not a single event; it is a transitional process that begins before the actual points of physical separation or legal termination and ends long after both of those points. Second, divorce, unlike many other crises that are caused by external forces, is caused by behavior, by one or both of the spouses. Spouses can join together in an “us” against “them” stand in many crises, but divorce is a crisis that divides the spouses. What was a strength, the nature of a couple’s relationship, now becomes a weakness.

The crisis of divorce affects the power balance between the spouses in two critical ways; first, the crisis directly impacts upon the interaction between the partners, and second, the crisis causes a change in the degree of power held by each individual spouse. As a result, each individual is more open to outside intervention. This means that the power dynamics between the spouses are more open to the mediator’s interventions.

An example of crisis fostering change is evident in what I term the “moral” issues of power between spouses. Women, Gilligan (1982) discovered, differ from men in their moral development. Gilligan found that women’s morality typically involves judgment of behavior according to the needs of others, while men’s morality involves judgment of behavior according to concern for rights. Men make their moral decisions based on the rights or interests of others, while women make their decisions based on the needs of others. Gilligan notes that “conventional feminine morality, because it endorses making decisions in terms of other’s needs, functions to reduce women’s power” (p.46).

I propose that the male/female difference in morality that Gilligan observed undergoes a major reversal during the divorce crisis. During the divorce transition, women are encouraged to satisfy their own needs, and not to make decisions according to the needs of their husbands. The desire to please the husband is neither expected nor encouraged by others; indeed, society now commands the wife to put aside her care taking role and assume an adversarial role. Those who give advice to the divorcing, and there are many, are unanimous in warning that “divorce is war” (Trafford, 1982, p.43). Indeed, “aggressive behavior is encouraged by the country’s legal system” (Trafford, 1982, p.96). Because of this change in expected behavior, the wife’s established, relative powerlessness in relation to her husband can be transformed into relative powerfulness as she looks to her own self-interest. Meanwhile, the male spouse tends to cling more firmly to his moral standard, as the legal system supports the rights-based model. It is not a coincidence that our legal system is based on the male model of morality; indeed, feminists recognize and define our legal system as “male.” And historically, of course, women have not fared well under the legal system (Weitzman, 1985).

Marital Role. In order to explore the effect of the crisis of the divorce upon the individual spouse, we must begin with an examination of the significance of the marital role. Barnett, Biener, and Baruch (1986, p.77) define role as “the rights, responsibilities and normatively prescribed behaviors expected of an individual in a given status or position.” A role tells us how we should act toward someone. The importance of a role is determined by its importance to the individual. It is commonly assumed that the loss of the marital role for the wife is more profound than is the loss of the marital role for her husband. I do not believe that this difference is inevitable or even likely.

According to cultural myth, men run away from marriage, while women seek and thrive in a marital relationship. Thus, it is frequently concluded that the loss of the role of a wife is traumatic. Yet studies consistently show that married women experience more stress than married men or single women. Barnett and Grace (1987, p. 103) note that the role of wife is “often associated with psychological distress.” However, the failure of the role to correlate highly with the well-being of a woman does not diminish the impact of the loss of her marital role. This contradiction, that the role of wife does not create well-being, and that the loss of this role is profoundly upsetting, has significant consequences for divorcing women.

Upon divorce, women in traditional marriages suffer a profound loss for three major reasons. First, society has conditioned women to believe that they cannot be a whole person without a man. Second, women feel more responsible for the marital relationship, and therefore have a greater tendency to see divorce as a sign of personal failure. Third, women tend to have a stronger identification with the role of wife than men have with the role of husband. If the woman identifies more strongly with a role other than wife, such as worker or mother, her loss may not be as traumatic as when she sees herself primarily as a wife. A former client of mine, Theresa Rossi, had been a homemaker for thirty-two years prior to her divorce. On the day she returned from divorce court, she received a letter addressed to “Mrs. Frank Rossi.” This incident caused her to remark, “That wasn’t me anymore. I felt as if I didn’t exist. If I’m not Mrs. Frank Rossi, then who am I?”

Society expects men to react differently than women to their loss of the marital role as husband. Cultural myth suggests that men do not invest much of themselves in marriage. A man’s role as husband may not be central to his identification. Indeed, cultural myths would have us believe that the only important roles for men are work and earning money, rather than the role of husband. Yet married men experience less stress than unmarried men. Indeed, studies show that single men experience the greatest stress out of the four possible groups: married men, unmarried men, married women, and unmarried women. Bernard (1989, p.10) concludes that “Marriage is distinctly beneficial for the vast majority of husbands.”

Joseph Pleck (1981) has done a considerable amount of research into male roles. He found that men’s involvement in the family is increasing, and that “increased involvement in the family presents issues to men similar to those raised by increased participation in paid work for women.” He notes that “men’s family behavior is beginning to change” (p.9). Barnett and Grace (1987, p.113) found that “In contrast to the almost exclusive emphasis on men’s work roles as determinate of male stress and well-being, the data from several studies suggest that men’s family roles are very important and have significant direct and indirect effects on emotional and physical well-being.” Recent studies indicate that the marital role is central to the mental and physical health of men. So what happens when that role ends? Barnett and Grace (1987, p.128) state that “loss of the marriage role will be more devastating for men than for women.”

My own practice reveals that the spouse who suffers the most is almost always the spouse who is being left, regardless of gender. It is hard to measure such pain, and I have not found that one gender always or even primarily suffers greater loss or pain in divorce. A favorite book of mine, Crazy Times (1982), by Abigail Trafford, sums up the effect of a breakup for both men and women: “Divorce puts you right on the edge of sanity…You don’t have to commit suicide or murder your spouse to know how crazy you feel” (p.41).

Redefinition of Self. Divorce disrupts the degree of power held by an individual. The primary impetus for this change is the divorce itself. The divorce crisis precipitates a sense of loss of identity, even by the spouse who initiates the end of the relationship. Within the emotional calamity, however, one can trace predictable patterns of emotional responses. Diane Vaughn, a sociologist and the author of Uncoupling (1986), provides a valuable insight into this apparent contradiction of emotional calamity and predictable emotional patterns: “Uncoupling is perceived by those who experience it as woefully chaotic and disorderly. Yet, despite the dubious gifts of confusion, anger, sorrow and pain bestowed on both partners, there is an underlying order that appears across all experiences” (p.188).

Vaughn defines the central issue of uncoupling as the dilemma for each partner to define him or herself in the absence of the other person. The question each spouse must ask is, “Who am I?” Every divorcing individual seeks to redefine, or is forced to redefine, herself or himself. The magnitude of this personal struggle cannot be understated. Implicit in the redefinition of self is a breakdown of defenses and an openness to other ways of being. A personal crisis offers the opportunity for significant adult change. The individual change affects the interactions between the spouses, though one or both will usually try to reassert the established interactive spousal patterns. During the crisis, the spousal levels of power are in flux. Divorce creates a breakdown in the usual personality defenses. The clients’ increased vulnerability allows the mediator to effectively use her or his power to strategically intervene in the power dynamics between them. In other words, the divorce crisis causes confusion about one’s identity, and undermines one’s usual personal defense system. But this confusion and lack of defenses actually works to help the mediator affect significant change.

Power During Divorce. During the crisis of separation and divorce, many of the broad categories of power become more narrowly focused and specific factors emerge by which one spouse gains additional degrees of power. During the divorce transition, more power is gained by the individual who:

  1. Wants the divorce.
  2. Does not want the divorce, and is willing to pay, emotionally and financially, to slow or stop the divorce.
  3. Has legitimate power, which is each person’s moral or cultural perception of who should have the power.
  4. Has legal favor. In mediation jargon, this individual benefits from “the shadow of the law” (Mnookin and Kornhauser, 1979). This means that one spouse enjoys a more favorable impact cast by the laws, and that this has an effect upon the content of the negotiations. For example, the laws of divorce might apply more favorably to one partner in terms of child support, alimony, or property division.
  5. Feels guilt concerning the termination of the marriage. Two common reasons for feelings of guilt are initiating the divorce and having an affair.
  6. Makes promises or threats that the other spouse believes. The threat or promise may not necessarily concern an issue that is part of the settlement.
  7. Develops the divorce settlement options or proposals.
  8. Has a strong representative, such as a lawyer, and/or support people in his or her life.

In addition to these elements of power, three other major foundations of power, which, though continuously present, gain significant influence during the divorce process. First, whoever has the greater income and/or financial assets has a source of power. Second, whoever has greater knowledge of financial issues, especially if the issues are part of the negotiated settlement, can assert more power. Third, whoever has used, is using, or is threatening to use physical force or violence toward the other spouse has a source of power.

Divorce mediators recognize the degree of power held by their clients, assess the effect of the imbalance of power upon the negotiations, and employ techniques to intervene in the balance of power to provide a forum in which to have fair negotiations. A divorce mediator can assist clients to reach a fair resolution because of a number of interwoven factors, but three are particularly important: the mediation process, the power of the mediator, and the effect of the divorce crisis. Significant power differences between male and female clients can be addressed within the mediation process because of the specifics of the situation. Significant power disparity between divorcing spouses is evident. Traditional couples do exist, but these divorcing spouses can still use the mediation process effectively. The patriarchal structure of society does not have to be abolished before a mediator can address the power dynamics of the divorcing couple, although such a dramatic change would make the mediator’s job much easier. A professional mediator, because of the three conditions described in this article, can address the power imbalance in most divorcing couples sufficiently to allow the “magic” of mediation to occur.

But mediators do not perform miracles: they mediate. Mediation is a flexible process. Some people may choose to use mediation under difficult situations, as, for example, in domestic violence cases. The desire of the participants, the lack of alternative negotiation paths, and the needs and goals of the partners may cause clients to choose to mediate in spite of very difficult circumstances. Although I have seen much mediations succeed, the subject of domestic violence deserves more thought and time than this article allows.

I think that the final question skeptics are bound to ask is “What if the mediator fails to do his or her job?” The failure of a professional to do his or her job is always a serious problem, in the same way that the failure of a lawyer, therapist, appraiser, or tax consultant results in a serious problem for the client. We must make the profession of mediation accountable in the same manner as other professions. This process is already taking place; mediators at both the state and national levels are creating credentialing and licensing procedures that will make mediators accountable in the same way that other professionals are accountable.

What is important for me, as a mediator and as a feminist, is that mediation offers clients the opportunity to become empowered. Empowerment is immensely valuable for a divorcing individual, for it is the sense of competency and the ability to take control of our own life during the process of divorce that enables each person to successfully move ahead with her or his life.


Four years ago, I took a summer course in family law at New England School of Law with Professor Mary Joe Frug. She was a brilliant and articulate feminist legal scholar who wrote and taught on women and the law. While discussing mediation, she expressed her concern that the mediation process cannot address power imbalance in divorcing couples, especially when the husband was clearly the more powerful spouse. We spent long and exciting hours examining the concerns of feminists, the power dynamics of traditional couples, and the mediation process which does allow for addressing power disparity. She encouraged me to write this article for Mediation Quarterly and reviewed my first draft. She knew that the article had been submitted, but I never had the chance to let her know it had been accepted for publication. On April 4, 1991, Mary Joe Frug was found brutally murdered three hundred yards from her home in Cambridge, Massachusetts.

Mary Joe Frug felt that a dialogue between feminists and mediators concerning the feasibility of mediation for women was important in light of the high divorce rate, the full spectrum of divorce-related problems, and the increased use of mediation. She thought that this article was another step in that direction.

I want to dedicate this article to Mary Joe and to thank her for her friendship and inspiration. She was a remarkable woman, and I miss her.


Barnett, R. C., Biener, L., and Baruch, G. K. (eds.). Gender and Stress. New York: Free Press, 1987.
Barnett, R. C., and Grace, K. B. “Social Roles, Gender, and Psychological Distress.” In R. C. Barnett, L. Bierner, and G. K. Baruch (eds.), Gender and Stress. New York: Free Press, 1987.
Berle, A. Power. San Diego, Calif.: Harcourt Brace Jovanovich, 1969.
Bernard, J. The Future of Marriage. New York: World, 1972.
Bernard, J. “The Good Provider Role: Its Rise and Fall.” In A. Skolnick and J. Skolnick (eds.), Family in Transition. Glenview, Ill.: Scott, Foresman, 1989.
Blau, M. P. Inequality and Heterogeneity. New York: Free Press, 1977.
Blood, R. O., and Wolfe, D. M. Husbands and Wives: The Dynamics of Married Living. New York: Free Press, 1960.
Davis A., and Salem, R. “Dealing with Power Imbalance Within the Mediation of Interpersonal Disputes.” In J. A. Lemmon (ed.) Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, no. 6. San Francisco: Jossey-Bass, 1984.
Dworkin, A. Our Blood: Prophecies and Discourses on Sexual Politics. New York HarperCollins, 1976.
Frug, M. J. Women and the Law: Material for Class Discussion. New England School of Law, Boston, Mass., Fall 1988.
Gillespie, D. “Who Has the Power? The Marital Struggle.” Journal of Marriage and the Family, Aug. 1971, 445-458.
Gilligan, C. In a Different Voice: Psychological Theory and Women’s Development. Cambridge, Mass.: Harvard University Press, 1982.
Haynes, J. “Power Balancing.” In J. Folberg and A. Mitro (eds.), Divorce Mediation: Theory and Practice. New York: Guilford Press, 1988.
Kressel, K. The Process of Divorce: How Professionals and Couples Negotiate Settlements. New York: Basic Books, 1985.
Lefcourt, C. H. Women and the Law. New York: Clark Boardman, 1984.
McCubbin, H. I., and Figley, C. R. (eds.) Stress and the Family. New York: Brunner/Mazel, 1983.
Mnookin, R., and Kornhauser, L. “Bargaining in the Shadow of the Law: The Case of Divorce.” Yale Law Review, 1979, 88, 950-997.
Parenti, M. J. Power and the Powerless. New York: St. Martin’s Press, 1978.
Pleck, J. “Three Conceptual Issues in Research on Male Roles.” Paper presented at the Conference on Gender Roles, Washington, D. C., 1981.
Rich, A. Of Women Born. New York: Norton, 1976.
Schulman, J. “The Women’s Advocate,” Newsletter of the National Center on Women and Family Law, 1983, 4(3), 3-4.
Skolnick, A., and Skolnick, J. (eds.) Family in Transition. Glenview, Ill.: Scott, Foresman, 1989.
Trafford, A. Crazy Times. New York: HarperCollins, 1982.
Vaughn, D. Uncoupling: Turning Points in Intimate Relationships. New York: Oxford University Press, 1986.
Wallerstein, J.S., and Kelly, J.B. Surviving the Breakup: How Children and Parents Cope with Divorce. New York: Basic Books, 1980.
Weitzman, L.J. (ed.). The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America. London: Collier/MacMillian, 1985.
Yahm, H. “Divorce Mediation: A Psychoanalytical Perspective.” In J.A. Lemmon (ed.), Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, No. 6. San Francisco: Jossey-Bass, 1984.
Barnett, R. C., Biener, L., and Baruch, G. K. (eds.). Gender and Stress. New York: Free Press, 1987.
Barnett, R. C., and Grace, K. B. “Social Roles, Gender, and Psychological Distress.” In R. C. Barnett, L. Bierner, and G. K. Baruch (eds.), Gender and Stress. New York: Free Press, 1987.
Berle, A. Power. San Diego, Calif.: Harcourt Brace Jovanovich, 1969.
Bernard, J. The Future of Marriage. New York: World, 1972.
Bernard, J. “The Good Provider Role: Its Rise and Fall.” In A. Skolnick and J. Skolnick (eds.), Family in Transition. Glenview, Ill.: Scott, Foresman, 1989.
Blau, M. P. Inequality and Heterogeneity. New York: Free Press, 1977.
Blood, R. O., and Wolfe, D. M. Husbands and Wives: The Dynamics of Married Living. New York: Free Press, 1960.
Davis A., and Salem, R. “Dealing with Power Imbalance Within the Mediation of Interpersonal Disputes.” In J. A. Lemmon (ed.) Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, no. 6. San Francisco: Jossey-Bass, 1984.
Dworkin, A. Our Blood: Prophecies and Discourses on Sexual Politics. New York HarperCollins, 1976.
Frug, M. J. Women and the Law: Material for Class Discussion. New England School of Law, Boston, Mass., Fall 1988.
Gillespie, D. “Who Has the Power? The Marital Struggle.” Journal of Marriage and the Family, Aug. 1971, 445-458.
Gilligan, C. In a Different Voice: Psychological Theory and Women’s Development. Cambridge, Mass.: Harvard University Press, 1982.
Haynes, J. “Power Balancing.” In J. Folberg and A. Mitro (eds.), Divorce Mediation: Theory and Practice. New York: Guilford Press, 1988.
Kressel, K. The Process of Divorce: How Professionals and Couples Negotiate Settlements. New York: Basic Books, 1985.
Lefcourt, C. H. Women and the Law. New York: Clark Boardman, 1984.
McCubbin, H. I., and Figley, C. R. (eds.) Stress and the Family. New York: Brunner/Mazel, 1983.
Mnookin, R., and Kornhauser, L. “Bargaining in the Shadow of the Law: The Case of Divorce.” Yale Law Review, 1979, 88, 950-997.
Parenti, M. J. Power and the Powerless. New York: St. Martin’s Press, 1978.
Pleck, J. “Three Conceptual Issues in Research on Male Roles.” Paper presented at the Conference on Gender Roles, Washington, D. C., 1981.
Rich, A. Of Women Born. New York: Norton, 1976.
Schulman, J. “The Women’s Advocate,” Newsletter of the National Center on Women and Family Law, 1983, 4(3), 3-4.
Skolnick, A., and Skolnick, J. (eds.) Family in Transition. Glenview, Ill.: Scott, Foresman, 1989.
Trafford, A. Crazy Times. New York: HarperCollins, 1982.
Vaughn, D. Uncoupling: Turning Points in Intimate Relationships. New York: Oxford University Press, 1986.
Wallerstein, J.S., and Kelly, J.B. Surviving the Breakup: How Children and Parents Cope with Divorce. New York: Basic Books, 1980.
Weitzman, L.J. (ed.). The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America. London: Collier/MacMillian, 1985.
Yahm, H. “Divorce Mediation: A Psychoanalytical Perspective.” In J.A. Lemmon (ed.), Procedures for Guiding the Divorce Mediation Process. Mediation Quarterly, No. 6. San Francisco: Jossey-Bass, 1984.