The Effect of Power in Mediation

Introduction

Balancing power is an important part of mediation. It is a skill that mediators must cultivate. Mediation parties often have different types and levels of power, which they may use to push their agenda and manipulate the agreement to say what they want it to say. This can interfere with the less powerful party’s being able to express their viewpoints and can get in the way of each party understanding the other’s perspective. It can lead to an agreement that has been coerced for one of the parties. If mediators do not balance the power, you can end up with agreements that are not fully informed and voluntary. Balancing power is a skill that mediators must cultivate. Since there is so much variability in types of power and how it is wielded, mediators must be very observant and flexible in how they use this skill. Without balancing power, it is way less likely that a mediation will resolve satisfactorily for both parties.

Please note: Details from the mediations mentioned below have been changed to protect the parties’ confidentiality.

I did a mediation recently in which the levels of power of each party played a very important role. One can have power from a number of different sources: positional power (such as that of a supervisor), financial power, emotional power, self-esteem differences, personal attributes (such as size or attractiveness), verbal ability, intellectual ability, charisma, cultural power, religious power, informational power, a greater number of people on one side of a disagreement, differences in class, gender, age, sexual orientation, traditions, or habits, and reward or punishment, to name a few.

The mediation I did had two parties who had different types of power, each having way more of their type of power than the other party.

The man had the type of power that comes from his style of communicating. He was very loud, emphatic, and aggressive in the way he speaks. He was very smart and articulate. He had a big personality, the kind of personality that takes up a lot more room than just the space his body took sitting at the table. He did most of the talking and dominated the air waves. The woman was not a native English speaker, so despite also being very intelligent, the English language was challenging for her. And her style of communicating was very different from his. She could speak her mind, but she was soft spoken and was nervous around the man.

The woman had the type of power that comes from reward and punishment. The man was so in love with her that he would do anything to stay in her life, including showering her with money, expensive gifts, and making her the beneficiary of his assets in the event of his death. She wanted the relationship to be over and wanted independence and closure. Any continuing interaction between them would only happen if she allowed it, if she rewarded him with it. This was a big hammer that she held over his head, and she knew it.

In mediation, we mediators don’t make decisions for the parties. Decisions are up to them to propose and agree to. It is our job to help the parties communicate and help them understand each other. It is our responsibility to make sure that the decisions the parties come to are fully informed and voluntary. This means that the decisions they’re making are with complete, accurate information and that they are not coerced in any way into making or signing an agreement. It is not our responsibility to make sure that agreements are equitable or balanced. The parties get to decide whether or not they want the agreements to be equitable and balanced. But we do need to make sure that they are making them with full and accurate information and understanding and that they are deciding freely of their own volition.

Part of how we do that is by balancing power. If one party is more powerful than the other and we don’t intervene to balance it, they may push their viewpoints onto the other and push the other into signing agreements they don’t really want. If this were to happen, the agreement would not be voluntary. This is especially important to pay attention to if domestic violence has been an issue in the parties’ relationship.

An agreement would not be fully informed if the parties have different intellectual capacities or different levels of expertise on a certain topic and one party doesn’t fully understand something. It can also happen if one party intentionally withholds information and pushes for agreement in the absence of discussing the withheld information. This is an example of bad faith. I saw this happen in a mediation in the past when one party worked toward agreement on some parts of the dispute but didn’t talk about other parts. Because of the high level of emotion party 1 was experiencing just from having to have this discussion after their very bad breakup, she didn’t think to bring up the other issues. After they came to and signed an agreement about divvying up their possessions and about some small financial issues, party 2 casually mentioned as they were about to leave that they would deal with some larger outstanding financial issues (a retirement fund and spousal maintenance) in court. Party 1 very strongly wanted to avoid court and would not have made the other agreements if she’d known about this. We mediators had asked about other issues and tried to ensure that all issues were being discussed, but party 2 did not raise the large financial issues until after getting the other agreements. Withholding like this is an example of bad faith and is an example of using financial and informational power to manipulate the other party to get what you want.

Some mediators have questioned whether balancing power affects the mediator’s neutrality, whether it is showing a bias toward the less empowered party. I do not believe that it does. Balancing power is not the same as developing an opinion about the issues or trying to lead the parties toward a particular solution that benefits one party over the other by way of the types of questions asked or suggestions made. What it does do is make sure that both parties are heard and understood and that any agreements made are fully informed and voluntary.

In the case of the mediation mentioned above that I did recently, if we had let the man’s communication power go unchecked and unbalanced, the woman would never have gotten to voice her side of things. She may have been coerced into making agreements that she didn’t really want and likely would have been unsatisfied with the mediation. If we had let the woman’s power of control over their future interactions go unchecked and unquestioned, the man would not have gotten any of what he wanted and would have been very unsatisfied with the mediation.

How we balanced the man’s communication power was by making sure that the woman got a chance to speak with equal airtime and making sure that both parties heard and understood each other. We did not let the man dominate the conversation, despite his natural tendency to do so. How we balanced the woman’s reward/punishment power of control over their future interactions was by asking questions and reality testing. If they still had financial arrangements between them (which is what they were agreeing to), would it really be possible to never see him? What would make her feel safe and comfortable if they did see each other in the future?

Balancing power is an important part of mediation. It is a skill that mediators must cultivate. Since there is so much variability in types of power and how it is wielded, mediators must be very observant and flexible in how they use this skill. Without balancing power, a mediation like the one that I did recently would not have resolved. The parties would not have been able to get closure on their relationship and move forward and likely would not have been satisfied with the mediation.

                       

Felicia Staub

Felicia Staub is a founder of Empowered Communication, a mediation and training business in Washington State, and is their Senior Mediator/Trainer. She is also the Practicum Supervisor and In-House Mediator for the Snohomish Dispute Resolution Center (DRC). She has a B.A. in Psychology from the University of Pennsylvania. She trained… MORE >