the same source. Superior legal representation cannot meaningfully be weighed against the economic need of a party to settle. As mentioned, the simplistic view adopted by many about power imbalances also derives from incorrect presumptions being made as to who holds power. Take again the above example of the wife who was the subject of domestic violence at the hands of the husband, suggestive of a process power imbalance. It is often presumed that the perpetrators of violence hold negotiating power over the victims. It is presumed that the victim (usually female) will be fearful of, and overborne by the perpetrator. That might indeed be so. But it might not be. Having identified domestic violence to have been present in the marriage of party A and party B, the mediator should embark on a careful inquiry as to whether or not the violence would render mediation unfair or inappropriate. Throughout this inquiry presumptions should be avoided. For example, if party A tells the mediator that she is emotionally strong enough to participate in mediation, the presumption should not be made that she in fact is. She may or may not be. Similarly, it should not be presumed that party B, the perpetrator of the violence, is emotionally strong. He may or may not be. The avoidance of presumption requires skilled, reflective and informed inquiry by mediators. Mediation should not proceed if a history of domestic violence indicates that it would be unsafe or unfair. Declarations, however, that mediation against a background of domestic violence is always inappropriate, involve multiple presumptions being made. These will be avoided if mediators drill down and inquire into the actual capacity of the parties to negotiate. Incorrect presumptions are often made in relation to substantive power imbalances, as well as process power imbalances. One reason for this is that real power exists only if it is recognised. In the above example, party A will only have bargaining power on account of her strong legal case, if both she and party B recognise that she has a strong legal case. If party A recognises her strong legal case, but party B does not, then it does not become a source of power for Party A.3 Equally, if party B recognises the strength of party A’s strong legal case, but party A does not, then party A’s strong legal case does not become a source of bargaining power which she can utilise.4 Not only can power sometimes not be recognised, but it can be hidden, emerging only during the course of mediation. In the above example of party A and party B, it might only be after mediation has commenced that it becomes apparent that party A lacks the decisiveness required of mediation, and is muddled in her thinking. Likewise, it might be that only well into the mediation that it is realised that the special needs of one of the children in relation to schooling are entirely inimical to what the husband is seeking. Summary and conclusion All the above suggests that the often heard statement that “mediation would be unfair because there is a power imbalance” is simplistic and misleading. It would be rare for a party to have a monopoly on power. The many and varied types of power inevitably present in each mediation do not lend themselves to ready measurement, nor are they capable of meaningful comparison. When assessing the fairness and appropriateness of mediation it is best to focus on the capacity of parties to negotiate, rather than engage in the doomed exercise of attempting to assess who might have the overall balance of power. Process power should be distinguished from substantive power. Presumptions should be avoided about who holds power, whether process or substantive. Who has power may not be obvious. Power may be hidden. Power may not be recognised. Power plays out unpredictably. Power imbalances is an unavoidable part of life, and hence an unavoidable part of mediation.