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Gendered Differences
in Divorce Mediation

Gendered Differences in Divorce Mediation


As soon as I started my work as a mediator, I noticed that men and women behave differently during divorce mediation. They reach this critical negotiation point equipped with very different negotiating styles. Although the couple's goals are basically identical: to get themselves a greater share of the assets accumulated during the relationship, men tend to employ legal arguments with relative ease, as they try to achieve their goals ("I did my research, and I don't have to pay wife’s support once we’re divorced"). In contrast, women often base their arguments on the emotional cost of the divorce, and they do so by using sentimental arguments, designed to appeal to the heart ("Why do you do this to me?" How do you think I can survive with 4,000 shekels?”)

The Cultural Feminism approach investigated the gaps between men and women and emphasized that these differences were the result of the different ways in which we socialize boys and girls. Psychologist Carol Gilligan confronted us with the fact that women think differently from men about morality and justice. Broadly speaking, the male perspective of justice places the independent individual at the center of the relevant field, and defines proper behavior by comparing it to abstract laws and legal rights. In contrast, the feminine view of morality places human relationships at the center of the relevant field, and defines correct behavior as one which assumes responsibility for the needs of other individuals within the network, and uphold sensitivity and loyalty

It is clear that Gilligan's conceptualization, which served as the base for legal feminism, is critical if we are to understand some of the clear differences men and women display during family mediation. The masculine arguments used in the mediation process tend to refer to the law, to the scenario that is to be expected if the conflict ends up in court ("a judge is going to give you much less, so as far as I'm concerned, the debate ends here”) or to abstract principles ("There’s nothing better than 50-50"). Yet the arguments women present in family mediation, appeal to a sensitivity to the needs of others ("You know how important it is for the girls that I meet them at home after school, do you really want her to come home to an empty house every day?”) and to family loyalty ("My parents treated you like a son, how dare you take my apartment?!”)

When I first encountered, as a mediator, these radical lack of symmetry between the way men and women negotiate, I began to ask myself whether mediation was actually doing nothing more than magnifying the differences between men and women. The more I handle this gendered difference in negotiation style in my office, the more I come to believe that it indicates that the processes that characterize the socio-political-economic institution called marriage, establish and maintain these problematic differences, that hurt both men and women.

Put simply, in most families, the following division of roles is created: The woman is the family’s CEO  of Emotional Affairs, in charge of raising children and maintaining the family unit’s social relationships while the man is the family’s ambassador to all matters having to do with “The Real World”, a job which entails providing for the family, and negotiating with hostile elements (from the Garage owner to his boss) in an attempt to protect the interests of the family.

As long as the relationship survives, this cost that this division of labor carries with it remains hidden from view.  However, both men and women pay a price. They both risk losing significant parts of themselves in this process. Mainly, we see men giving up knowledge of their emotional world, and with it the ability to negotiate their own emotional needs, whereas women give up their independence, and therefore the ability to negotiate a deal in the public arena, one that is based on non-emotional arguments.

The harsh consequences of this appear in mediation. From the woman’s perspective, the man who is sitting there quietly and is not respond to her arguments about the children’s emotional pain, is "evil," indifferent”, or "heartless." From the man’s point of view, the woman who is not offering a logical solution to the mathematical problem, is insulting him and accuses him, is "crazy", "irrational," or "hysterical."

Neither of them recognizes that the marriage was built on the husband’s ability to uphold and represent his needs and tribulations and on the woman’s fluency in emotional. Neither of them recognizes that the very effort that the wife had made for her family has reduced her ability to participate in mediation and to argue for her goals using arguments that are in line with the legal norms This means that mediation process has critical ramifications for women. Mediation is informed by the law, the same law that is found at the base of male justice, and mediation is based on the kind of negotiations that men have more experience in given their traditional role in the family.  If a mediator does not have the gender-sensitivity required, he may look down at the prototypical woman as she makes the prototypical apparently sentimental argument.

My purpose of course is not to push women away from family mediation, but to stress that in contrast to the common perception that mediation is a “softer” process, and therefore more suitable for women, we need to be aware of the inherent gendered differences in negotiation styles.

Having said that, it is important to remember that guided by a creative mediator, family mediation has the power to make a difference in a way the court cannot.

A responsible mediator, who seeks to help parties reach a sustainable agreement, knows that you must take the past into account. A fair and realistic agreement is one that does not expect one of the parties to start a new chapter in their life the day after the divorce, being completely free of the weight of the past.

A fair agreement is one in which  the couple’s resources are divided in such a way that will facilitate both parties ability to go on with their lives without turning their back on their past together and without denying their shared values.

And values are important. At the end of the day, people turn to divorce mediation not only because they are afraid to go to court. A good mediation agreement has a transformative power that a court-ruled agreement doesn’t have.

If you are facing a divorce, and decide to pursuit mediation, I encourage you to rise to the occasion, and to not fall trap to gender stereotypes. Being sensitive to the existence of a feminine and masculine language can help you create new and shared text together. Your agreement can be more than a fair contract, it can be an energy that allows you to move on with your life, empowered by the knowledge that you are a decent and responsible person. Good Karma.

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