The following is Chapter Two from the book Elder Mediation: A New Solution to Age-Old Problems by Dr. John Bertschler and Patti Bertschler of Northcoast Conflict Solutions
The practice of mediation includes many elements we tend to take for granted: practitioner neutrality, the desire of participants to reach a mutually agreeable resolution, the wish to maintain a civil atmosphere in order to preserve the relationship between participants, etc. At the start of our practice we might have also included on that list the notion that mediation is a problem-solving discussion between or among participants of equal status.
Perhaps that assumption was due in part to our own rookie naiveté, encouraged by the fact that the great majority of our work was done in the field of divorce and family mediation. After all, our clients for the most part were a self-referred population (very few court referrals then) who expressed a desire simply to “stop being married to each other,” not to beat their partners into submission in ugly litigation. In short, we had “nice” clients whose marriages looked in many ways like our own—one of equal partnership.
Even the notion of power itself as an element of mediation seemed a bit strange, even distasteful. We and our clients were, after all, basically nice people who came to the table with little malice and a sincere desire to do the right thing even in difficult circumstances. We figured that the relatively powerful and the relatively powerless would sit down together, dispassionately discuss difficult issues and reach reasonable decisions without too much self-serving bias.
We fairly quickly became disavowed of the notion that participants in mediation, even cordial married couples, were on equal footing, or had comparable power, or would enter into sensitive negotiations without using all the power at their disposal. Human nature dictates that those with power are likely to use it for their own purposes and that those in a “power-down” situation will enter the arena with an element of distrust of the process, a fear that superior power is sure to be used against them. This is perhaps especially true when participants’ financial futures are at stake.
This chapter is devoted to the complex process of identifying where a power imbalance exists in mediation and dealing with those situations in a productive and compassionate fashion.
Probably the greatest challenge to dealing with the problem of an imbalance of power in almost any human communication is the subtlety of the imbalance. Mediations take place between and among individuals of infinite variety, and their status (as well as differences between the status of participants) is rarely as straightforward as a military insignia on the shoulder or a position on a corporate flow chart.
People have power. Or they assume that they have power by virtue of some status or accident of situation. Or people assume, for the same reasons, that the person across the table has power. No matter whether power is actual or imputed, earned or bestowed, or simply assumed, either party in a mediation may come to the table believing that that power is a given. And all parties are likely to behave differently toward each other based on that perception of power.
Some of the broad varieties of situations we see in which imbalance of power is present or perceived commonly include:
1. Men compared to women
2. Adults compared to children
3. Professionally educated persons compared to blue-collar workers
4. Supervisors in the workplace compared to the people they supervise
5. People with special areas of expertise, compared to those who lack that expertise
6. Frailer older adults compared to their adult children/ caregivers
7. Doctors compared to nurses (or other professional levels of stature)
James Hillman’s useful book Kinds of Power (1995) offers a much expanded definition of power as it appears in ordinary life and in our mediation population. In his list, people have power for reasons including office, authority, fearsomeness, leadership, veto, and fifteen others good reason for the practitioner to be wary of this variable and its influence at the negotiation table.
Although extensive, even this list could go on and on. As we look at the world of elder mediation (and by extension the world of families), however, the list of out-of-balance situations changes to include:
1. Parents compared to children even when the children are adults
2. In some cases children compared to parents
3. Biological children of the elder compared to sons- and daughters-in-law of the elder
4. Step-anything compared to biological counterparts
5. Older children compared to younger children
6. Children somehow counted as favorites of the elder compared to those not so counted
7. Able-bodied persons compared to those with disabling or limiting conditions
8. Persons who believe they have earned “rights” by being primary caregivers compared to those who have not done so.
In meeting these people around the table or in pre-mediation consults, we have encountered all these situations and more. Often it becomes evident that people have widely differing expectations related to their perceived positions in the power structure. Participants have told us, “My children have never told me how to run my life, and they aren’t going to start now,” or “I can’t tell him anything; even though I’m fifty years old he still treats me like the ‘kid brother,’” or “What right do I have to tell him anything about money matters? He’s an investment advisor, for gosh sake!”
It is clear to us that the presence of greater power and of lesser power around the table has great potential to skew any discussion. What starts out as a discussion of how best to take care of our elder relative morphs into oneupmanship on the one side and excessive deference on the other. Both sides are breeding grounds for resentment and a host of other disruptive emotions. These in turn make decision making much more difficult.
Perhaps the first challenge to dealing with these situations is to become aware of them as the mediator and to acknowledge both their existence and their impact on the job at hand. This discernment may begin as soon as the first contact (“All four of us kids agree that Dad can’t stay at home by himself any more, but he keeps telling us that we can’t tell our father what to do.”) It may come in the form of questions as you plan a first meeting (“Who gets to come to this meeting? Just us kids? Our spouses? Our own adult children? Who else?”). Sometimes we see “credentials” as soon as the first consult begins: “We question how mom is being treated in the nursing home, but whenever we question them they remind us that they are the professionals,” or “We know this is strictly a legal question, and their lawyer is the only one at the table who really knows the law.”
At times new information comes out during an early session that serves to establish a pecking order of sorts among participants, e.g., (“Jackie thinks she knows all there is to know because she sees Mom daily, and she thinks I’m not entitled to an opinion because I live out of state and don’t see her that often,” or “Ruth thinks that because she’s a nurse, her opinion is worth more than ours is.”).
The following (in no particular order of importance) are some of the specific tactics and methods that we have been known to use in order to equalize power at the mediation table.
Location, location, location
Where a mediation takes place is partly a matter of logistics and convenience, but definitely includes the consideration of power. Many people operate within their own places of power, where they are most comfortable and most within their own sphere of influence. To understand this you have only to consider whether you would want to have an important discussion in your own living room or your neighbor’s, in your boss’s office or in the company’s break room, in a neutral site or the consulting office of the opposing attorney.
We offer our clients a choice of venues and find that, more often than not, they prefer the neutrality of our own office. It may be partly a matter of convenience, but it may also be that people sense that someone is in charge of the process and that individual is not their adversary. The mediator and the mediator’s environment seem to “declaw” some more powerful individuals, at least in the minds of their apprehensive and less powerful counterparts.
Of course, if an older adult is hospitalized or unable to travel and is cognitively competent to participate in mediation, we may agree to mediate bedside. Recently we received a call from a man whose siblings and he inherited their mother’s estate. He requested that it would be easier on the family for our mediator to travel to a neutral location in their city and offered to pay for our travel time.
In short, we find that the choice of a location for a discussion often sets the tone, taking part of a perceived power advantage away from one disputant and beginning to balance the power before the first word of actual discussion is spoken.
Support Persons
It is very common, especially in mediations involving only two disputants, for one to feel a sense of intimidation for any of a variety of reasons. If these people know the mediator’s job is to maintain neutrality, it may not be enough to be aware that we control the process. They may think of us in some sense that we are so neutral that we won’t help them as they are overpowered by the other party.
For these people, we usually offer the option of coming to mediation with a support person of their choosing. And some do, in fact, choose to come accompanied by a family member, a close friend or even an attorney, a spiritual advisor or therapist. We ask that these support persons not take an active part in the mediation process, which must still involve only the input of the participants with the guidance of the mediator. If participants want more from their support persons (whether it is advice on how to proceed, a sympathetic ear, a piece of personal encouragement, or whatever else) we offer a break in which a participant and support person can “sidebar” and resume momentarily.
This often has a calming effect on people who perceive themselves in a “power-down” situation, who may otherwise have come into a session without counsel and, facing the other party one-on-one, still felt outnumbered. In addition to being just good policy that we have used for years and a great piece of insurance against premature withdrawal by one party, this became standard practice under the terms of the Uniform Mediation Act to which mediators subscribe.
Caucus or shuttle mediation for domestic violence / elder abuse cases
Although we routinely screen cases for evidence of violence such as elder abuse or domestic violence, no such screening can be a foolproof predictor of flare-ups of power/control or a defense against them. Please note that we are not talking about only physical harm or threats of harm between disputants, although those are the most serious instances, of course.
It is, unfortunately, common for one party to lose good control during an important discussion, even with the guidance and calming influence of the neutral third party. Most veteran mediators have no doubt witnessed times when one party rises up in wrath and the other(s) cower in trepidation. When this happens, not only is the outcome of a mediation threatened but, even if the mediation continues, the validity of resulting decisions comes into question. It becomes difficult to tell when a seemingly agreed-upon decision is an informed and voluntary one and when it is coerced.
Of course, this can sometimes be a subjective call. It may require a mediator’s judgment and experience to see that one party is clearly trying to intimidate the other, perhaps with a particular tone of voice or choice of words or “the look” known only too well to the other party. Perhaps no overt violence is going on at all, physical or even verbal. Still we see at times that power exists and is being exerted.
At times such as these, a useful option is to separate the parties. We may opt for a brief caucus, making certain to offer time to each party. In more intractable cases it may be necessary to carry out most or even all of the discussion in separate rooms, with the explanation to all parties that things have simply become too heated for all parties to be in the same room.
The mediator will then ask all the usual questions to one party alone, making certain to clarify answers and offers and such before relaying them to the other party. This literal back-and-forth will probably take more time, and something may be lost in terms of allowing each party to see and hear the richness and fullness of the contributions of the other. Of course, the trade-off is significantly reduced power imbalance, at least as it is being exerted in that moment. And that, of course, improves the chances of getting a good, uncoerced, viable agreement.
Body language
“Mr. Brown, I notice that you looked down (winced/frowned/ raised your eyebrows, etc.) when your daughter brought up the idea of a nursing home. Tell me more about that.”
The ability to take note of body language is probably less a strategy than a skill that pervades a mediator’s work. We all know that human behavior and particularly human communication is enormously complex and oftentimes subtle. Rarely is this more so than when people are trying to exert power to win a negotiation, without it being so obvious that everyone notices and they seem to be bullies.
This is not meant to be a “cook-book” commentary (such-and-so gesture means this-and-that emotion), nor could it ever be an exhaustive listing of all that body language involves. We simply note here that the effective practitioner will “listen with the third ear” and “watch with the third eye” for the subtleties and nuances of any conversation and explore their meaning, if needed. This is especially so in cases where these subtleties suggest either the wielding of power on one side or the shrinking away from it on the other.
“Mrs. Johnson, I noticed that you sighed and shook your head when your son made that last comment. Would you mind telling us what’s going on in your heart now?” “Mr. Jones (who is sitting straight up and scowling), you seem perturbed by this discussion of money. Can you tell us about that?”
In cases such as these, even making implicit dynamics a little more explicit, or opening them for discussion, tends to defuse power in many cases. The act of doing so may itself be a subtle one, not totally eliminating a power imbalance. But any reduction of imbalance that levels the playing field is likely to be a useful one, not only for the person in lesser power but for the entire decision-making process.
Mediation as a “carrot-and-stick” proposition
Philosophically, we view mediation as simply a better way to do business, and that’s how we describe it to anyone who will listen. Mediation represents a “kinder, gentler” option to many other dispute resolution options which are also at the disposal of people in dispute. So it is that we spend a lot of time reinforcing in our clients the notion that mediation will save them time and money, that they retain decision-making power, and that relationships may be maintained rather than damaged or destroyed in the heat of conflict.
That’s the “carrot,” the inducement. There are benefits to be enjoyed by not going to war. However, the reality is that not all of our clients are predisposed to “play nice,” especially in situations of unequal power. Then the person with greater power may be inclined to wield all available power to coerce a decision in his favor, even to the point of thinking “what’s the other guy going to do about it anyway?”
That disputant sees no value in the “carrot” and will often be disinclined to make any concessions that he doesn’t have to. In the interest of fully franchising all stakeholders and making their deliberation a group process rather than a monologue, we are always prepared to introduce the “stick.”
Our concept of the “stick” has been influenced by the work of the Harvard Negotiation Project (Fisher and Ury, 1981) and particularly their notion of BATNA, the Best Alternative to a Negotiated Agreement. When negotiations become stuck, and particularly when at least one disputant seems bent on wielding power and refusing to compromise, we will often ask what they expect to happen if they don’t reach agreement at this table.
Often people expect the other disputants simply to cave in, to yield to greater power. Sometimes they seem to think “If I don’t budge, what can they do about it, really?” This perception of greater power produces a sense that no flexibility is required or even prudent. This naturally stymies some mediations.
At this point we discuss options. Perhaps the other parties will simply cave in. But what if they don’t? If they don’t have any power to counteract your own and can’t wield influence on your opinion, perhaps a higher authority can. Some people, sensing they have no influence at the mediation table, will make it plain that the next step will be litigation.
This may be only bluff. But it is a potent enough bluff to sway some disputants who might otherwise remain immovable, certain in their own position and their own power. We are reminded of one family who recently sat at our table in the midst of a heated debate over legal guardianship of their mother. One member clearly held considerable authority in the family because of several factors, including material wealth. He saw nothing in the wishes of other family members that interested him and had no interest in any compromise or negotiation. Since they couldn’t force him to do anything, he saw no need to be swayed from his position at all.
All in attendance understood the desire to reach peaceful agreement, and all (sort of) wanted to do so. But the more powerful family member was less interested in peace or compromise than in getting his way.
We asked what the others in attendance might do if they could reach no mediated agreement. They responded that their agenda was so compelling that they would likely take the case to probate court. Both factions of the family had already consulted legal counsel and had some idea of how a court trial would play out. Both (thankfully) were eager to avoid the time, aggravation, expense and likely damage to future family relations that they expected to come from a trial. The more powerful relative was able to be dislodged from his seemingly immovable position, and resumed his place in the discussion with a new ability to consider compromise.
This may seem like Cold War tactics—scaring people into a discussion only with the threat of nuclear force which would certainly devastate everyone. We don’t deny this altogether, nor do we particularly apologize for it. We don’t coerce decisions in one direction or the other. On the other hand, we’re not philosophically opposed to showing “the stick” to get people unstuck.
Knowledge is Power
One of the most common instances of power imbalance, real or perceived, occurs when one party believes he or she lacks specific or expert information that the other party has. This may be information about resources, finances, law, or any of a variety of other crucial subjects. Whatever the area, when disputants perceive themselves to be seriously deficient in expertise affecting the discussion at hand, they are often reluctant to proceed or even to begin sensitive negotiations. We have heard people say they are simply scared that they will be taken advantage of when discussing an area in which they are weak, while others at the table are better informed.
We try to equalize this imbalance simply by bringing to the table additional expertise to shore up the area of weakness of the one party. Sometimes this makes use of our own strong areas of knowledge. Since we’re not experts in everything, however, more commonly we help the weaker party to access expert information through our extensive referral network.
Often we will tell people, “We understand that you’re a bit nervous about making a decision of this sort because you’re not familiar with how different levels of care offer different services to the older adult. May I give you our understanding of the difference?” Alternatively, if the other party is more knowledgeable, he/she may provide the information for all of us. Or as yet another alternative and using a different case example, we may link the “weaker” party to an attorney or financial advisor to get information that is both expert and neutral. By simply providing one party with additional information, we have helped reduced many power imbalances based on information gaps to a manageable level.
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