Trial lawyers strive to influence the jury regarding the power of the arguments and evidence in support for their respective sides of a case. In a similar vein, negotiators work to influence each other regarding their relative power in the situation. Just as the most skilled lawyer will more highly influence the jury, the most skilled negotiator will garner a larger share of power in the relationship. The resultant power often dictates how the problem-solving gains are distributed.
In mediation, as both circumstances and negotiators’ skills vary, the relative power of the parties will vary; rarely will it be balanced. On occasion one party may have such dominant power over the other that the mediator may feel an urge to intervene to prevent exploitation. So the question arises — What should the mediator do, if anything, to adjust a potentially harmful power imbalance? Responses to this issue have not escaped the literature — a range of advice is offered. This article will briefly review that advice and extend the thinking to include a different approach whereby the mediator might influence power — enlightened self-interest.
To influence the perception of power negotiators apply a variety of tactics to each other. There are both legitimate and illegitimate reasons. Legitimately, power can come from careful preparation (analysis of options, gathering of information, generating arguments, etc.) plus highly honed negotiating skills (e.g., exaggerating, bluffing, trading, etc.). Illegitimate reasons might include forms of bullying (yelling, name calling, personal threats, dominating, etc.) and refusing to bargain in good faith (i.e., stalling, refusing to make concessions, etc.).
Melamed (1999) suggests ways mediators might deal with severe power imbalance ranging from no assistance, to equalizing power, to helping both parties, to passionately assisting both parties.
No assistance. At one end of the range is the claim that the mediator should do nothing and allow the exploitation to occur. Voyles (2004) argues that power imbalances exist in everyday life and should be allowed in mediation, and that strict power balancing, in practice, seems unlikely.
Equalizing the power. Becoming involved, the mediator might attempt to equalize the power between the participants by shoring up the weaker and impeding the stronger. Without recommending specific actions, Hedeen (2003) feels the mediator has an ethical responsibility to collaborate with the weaker party to develop ways to ensure his/her full participation. Moore (2003) suggests the mediator can assist the weaker party to recognize, organize, and marshal his/her potential power but should not actually advocate for the weaker party.
The mediator is also in a position to apply “heat” to the powerful party. This author is reminded of an account from a mediator where college students were negotiating with landlords to resolve rental disputes. The mediator, believing that the owners were exploiting the students, attempted to “apply heat” by placing the landlords behind a table and against a wall, thereby making them feel uncomfortable.
Help both parties equally. Third, the mediator could seek to equally empower both participants. Voyles (2004) focuses on the self-determination of the parties; that is, on each party’s ability to participate effectively. He sees the mediator as the protector of the self-determination of both. This is done by separately reminding each party of his/her needs, helping with relevant and important arguments, and coaching. Voyles would use “role-play hypotheticals” to teach a weaker party how to respond effectively.
Passionately assist both parties. At the far end of the continuum the mediator would passionately act to fully empower both parties so each might attain his/her fullest bargaining potential. In a more extreme vein, Melamed (1999) argues that the mediator should passionately help both parties to be at their personal best, to most capably problem-solve, and attain the greatest possible satisfaction.
Each of these approaches is problematic. In the face of severe power imbalance, it seems awkward for the mediator, who is responsible for the parties’ safety and comfort, to stand by and observe unbridled exploitation. Melamed (1999) argues that not influencing is not an option as the mediator’s “impressions and commentary dramatically impact” parties’ perceptions of their individual power and result in modified behavior and choices. This author maintains that the mediator should try to remain issue free, i.e., to not become an advocate for any side as such advocacy will generate a serious compromise to his/her impartiality. The stronger party will likely see the mediator as biased and feel ganged up on by the mediator and the weaker party. Likewise, the mediator should not equally help both parties as such help will also be perceived as biased by the stronger party who does not need the mediator’s help. Neither should the mediator passionately aid both parties as, again, the weaker side would benefit more from such assistance. The mediator can, however, restrict illegitimate behavior from advantaging one side. This is done primarily by establishing and enforcing ground rules. The mediator may also insist on equal talk time, provide equal clarification, provide aid joint problem-solving and generate a clear articulation of the agreement.
This author agrees with Hedeen (2003) and Voyles (2004) who argue that the mediator should terminate the session if any party lacks sufficient power to participate effectively. The next section suggests an approach that could result in increased effectiveness of the weaker party based on the enlightened self-interest of the stronger party.
APPLYING ENLIGHTENED SELF-INTEREST
This author believes the mediator should step in only if an overabundance of power by one party threatens the success of mediation, i.e., where one party settles for an undesirable outcome. It should be realized that being a participant in the mediation provides the weaker party with some bargaining power of which he/she may be unaware. This power can be used to influence the success of the mediation. Without the weaker party’s voluntary participation the mediation will end forcing both parties to return to their respective BATNA (i.e., Best Alternative to a Negotiated Agreement) positions.
To implement the strategy of “enlightened self-interest,” the mediator (usually in caucus) becomes an “agent of reality” and explains to the dominant party that he/she has a responsibility for the satisfaction of the weaker party. “If the other party should opt out, the mediation ends, keeping you from recognizing any benefit from your superior power.” The powerful party’s responsibility is to make the weaker party’s payoff greater than what the party would receive should the negotiation end. The mediator indicates that the other party will be reminded of the voluntary nature of mediation and of his/her choice to opt out rather than accept an unsatisfactory payoff. A softer statement to this effect might be included in the mediator’s opening statement suggesting that each party has a responsibility to the other to make the outcome worth the other’s negotiation effort.
This strategy is an attempt to initiate a willing shift of some power by the stronger party to the weaker based on his/her self-interest. The mediator does not influence the result of the power shift, that is left up to the parties and their new “relational balance.” It is likely that the kind of power imbalance described here will be relatively rare; but should it occur the informed mediator will have the tool of “enlightened self-interest” to influence the outcome. Satisfaction generated through this strategy will help ensure that the agreement will be honored.
Field, R. (2000). Neutrality and power: Myths and reality. ADR Bulletin 3(1), 16-19.
Gewurz, I. (2001). “(Re) Designing mediation to address the nuances of power imbalance.” Confict resolution quarterly, 19(2), 135-162.
Hedeen, T. (2003). Ensuring self-determination through mediation readiness: Ethical considerations. Mediate.com (retrieved 3/1/05).
Kelly, J. (1995). “Power imbalance in divorce and interpersonal mediation: Assessment and intervention. Mediation Quarterly, 13(2), 85-98.
Melamed, J. (1999). Maximizing mediation. Mediate.com (retrieved 3/1/05).
Moore, C. (2003). The mediation process: Practical strategies for resolving conflict. San Francisco: Jossey-Bass.
Voyles, R. (2004). Managing an imbalance of power. Mediate.com (retrieved 2/4/05)
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