Power Imbalance in Mediation

Power imbalance is usually described in terms of money or information, but it is also something people feel. One spouse walks into the room feeling confident, entitled or in control, while the other feels small, anxious, guilty or afraid. These feelings affect what each person asks for, what they are willing to accept, and whether they can say no. Mediation is built on the idea that both parties negotiate freely and on equal footing, so an unaddressed imbalance can quietly undermine the whole process.

The weaker party often doesn’t experience it as “power.” They experience it as fear of making things worse, exhaustion, a wish to keep the peace, or a sense that they don’t deserve more. The stronger party may not see it either, and may genuinely believe the negotiation is fair because the other person agreed.

Examples of power imbalance:

One spouse managed all the finances (Effect: the other can’t evaluate proposals and accepts numbers they don’t understand)
One spouse earns much more or the other depends on them financially (Effect: fear of being cut off leads to accepting less support or property)
A history of family violence or coercive control (Effect: agreeing out of fear, or to avoid retaliation after the session)
The leaver’s guilt (Effect: giving away too much to ease their conscience, then resenting it later)
The left spouse hoping to reconcile (Effect: agreeing to anything to please the other or keep the door open)
One spouse is more articulate, educated or at ease in negotiations (Effect: their framing dominates and the other’s concerns go unspoken)
Language or cultural barriers (Effect: misunderstanding terms or deferring because of expectations about gender or family roles)
One spouse has a lawyer and the other doesn’t (Effect: unequal knowledge of rights and entitlements)
One spouse controls access to information or hides assets (Effect: the division is based on an incomplete picture)
Threats about the children, such as “I’ll fight for full custody” (Effect: trading away financial rights to protect time with the children)
Conflict-avoidant versus dominant personalities (Effect: the avoidant spouse concedes just to end the discomfort)
Depression, anxiety or grief in one party (Effect: reduced capacity to focus, remember or advocate for themselves)
Dependence tied to immigration sponsorship or residency (Effect: fear of consequences makes the dependent spouse reluctant to assert rights)
One spouse has a new partner and support network (Effect: they appear stable and in control, while the other feels isolated and overwhelmed)

How it affects the outcome

When power imbalance goes unaddressed, the result is often an agreement that reflects one person’s fear rather than both people’s interests. The weaker party may give up property, support or parenting time they are entitled to. Even when the agreement looks settled, it tends to be fragile: resentment builds, compliance breaks down, and the matter returns to court. In BC, section 93 of the Family Law Act allows a court to set aside or replace a written property agreement if one spouse took improper advantage of the other’s vulnerability, including their ignorance, need or distress, or if there was a failure to disclose significant property or debts. An agreement reached under an imbalance is therefore not only unfair but legally at risk.

Imbalance can also produce the opposite outcome: impasse. A party who feels overpowered may shut down, stop responding, or reject every proposal as a way of regaining some control.

How mediators address it

Mediators can balance power by insisting on full financial disclosure before negotiating, encouraging or requiring independent legal advice, using separate meetings or shuttle mediation, slowing the pace so the weaker party has time to understand options, allowing a support person where appropriate, and checking privately whether each party truly agrees. Co-mediation, for example with a mental health professional, can also help.

A mediator cannot become an advocate for one side, but has a duty to ensure the process is fair. If the imbalance is too great to correct, the right decision is to suspend or end the mediation and refer the parties to a process with more protection.

Daniel Mandelbaum

CERTIFIED FAMILY MEDIATOR – JUSTICE INSTITUTE OF BRITISH COLUMBIA

I discovered that I was born to mediate and collaborate, as I was – and still am – the individual that my friends and family call on to resolve any conflicts that may arise.