What are some effective ways to deal with power imbalances in mediation?

If “power imbalance” means deep-pocket A versus thin-resourced B, it’s not the mediator’s role to somehow level the playing field. On the contrary, it’s a point of weakness to discuss in private with B, who can save litigation costs by settling now. If it means dominant husband versus intimidated wife (divorce mediation), both parties should be represented by counsel. This, as well as a tightly controlled joint session, should protect the wife from abuse during the process. If it means Party A has Party B on the ropes in the lawsuit (better attorney; better evidence; better law; favorable jurisdiction), again, it’s not our place to mitigate that imbalance. Rather, these points should be front and center in the caucus with Party B.

Particularly in divorce mediation, the power imbalance can be a roadblock to settlement. One way to address this is to have the parties in separate rooms and the mediator goes back and forth between the parties. This also helps keep the emotions down and aids in settlement because it provides a "safe space" for each party to air their grievances and feel heard.

Power imbalances are perceptions that generate prior to initiation of mediation and during the mediation process. Pre mediation meetings with the parties would help resolve the perceptions before start of the process. During mediation separate meeting between the parties would address potential imbalances.

Having ground rules is so very important to enabling both parties the opportunity to be heard. The worst situation is for one party to bully and shout down the other, or effectively prevent them from speaking. Starting a session with the explanation that everyone will have their chance to speak without interruption (and following through on that promise!!!) is very helpful. It is alright to politely interrupt for clarification of a point, but the mediator has to also respect everyone's ability to be heard. Sometimes it may be necessary to politely interrupt to say "I am going to give you 3 minutes to wrap it up, then we have to hear from the other side." The mediator must retain gentle guided control.

Such excellent suggestions in this article about how a mediator can assist in bringing the parties to an accord. I often think that the first thing is to frame the positions, whether it is the demand by the Plaintiff and the first offer by the Defendant, or something else. Then the Mediator can work toward getting an accord- WITHIN THAT FRAMEWORK. Sometimes the resolution occurs when the mediator creatively steps outside the framework. But most times the parties want to resolve the matter with a dollar figure; they just have differing views as to what is reasonable.

One thing I have found helpful in empowering the parties that are disadvantaged is by having the advantaged party verbalize the value that the disadvantaged party brings to the relationship, from the onset. By clearly outlining what the behavior expectations will be of the party with the power advantage, followed by their assurance that they agree with those expectations and will behave appropriately throughout and following the mediation, the mediator sets the stage. Having the party with the power advantage expressly own their responsibility to behave appropriately reinforces accountability throughout and after the process. This reassurance can create a safer environment for those that are on the disadvantaged end of the power balance.

This is a delicate balance as a neutral. It is important to ensure those who feel unequal in the mediation that their voice is just as important as the other side. They are empowered to make a consequential decision that will end the dispute or continue it.

You can usually get a feel for how parties are going to behave in the mediation from the initial 121 meetings. Power imbalance usually occurs when the mediator is too laid back. Whilst the parties are to come up with their own solutions, the mediator as FACILITATOR of the session needs to ensure imbalance doesn't occur and that means where required, having a time out to reinforce the ground rules. It doesnt matter if thats done many times, the session needs balance. You can also take the protagonist to one side and remind them their approach is not appropriate if they want to get the best from the session. The mediator does have to take a level of control at times to ensure everyone is heard.

Der erste und wahrscheinlich wichtigste Schritt ist es, das Ungleichgewicht zu erkennen. Oftmals ist es offensichtlich, doch in vielen Mediationen erschlie?t es sich nicht auf den ersten Blick. Hier hilft oftmals auch die K?rpersprache der Medianden. Nehmen wir die Medianden ganzheitlich wahr und lassen auch die nonverbalen Signale auf uns wirken, so wird es m?glich, uns gut in den Konflikt einzufühlen. Haben wir die internen Machtverh?ltnisse erfühlt, so k?nnen wir beginnen, die schw?chere Seite zu stützen. Hierzu haben die Kolleginnen und Kollegen bereits ausgezeichnete Texte geschrieben.

Gert Hofstede - cultural dimensions adds some fascinating context from the perspective of nation cultures. Of course each mediation is going to be different but the above may help give some over arching national / “geographical” context. In particular how someone may be influenced from their background culture regarding- Power Distance, Uncertainty Avoidance, Individualism/Collectivism, Masculinity/Femininity, Long/Short Term Orientation, and Indulgence/Restraint. For example the base behaviour in Japan will likely be very different from that of the USA but in a somewhat predicate manner. Similarly people originally from these environs will likely “carry” some of these approaches with them. Company culture may also help guide us.

All of the actions outlined are appropriate to address emotions. However, a good mediator will read the room early and know when to start to diffuse emotion. Sometimes emotion is used to intimidate or conversely to emphasise being the injured party. A good mediator will spot the early signs and work to diffuse any tension rising through acknowledgement, empathetic tones & reasoning, using humour sparingly. You got to be a good reader of the room and the individual parties to know what will work FOR EACH. Its important emotion is dealt with appropriate to the situation without it becoming a derailer to the session.

Emotions can play a significant role in preventing parties from reaching an accord. Mediations are not campfires where we will all hold hands and sing Kumbiya. But you don't want a party to feel that they were forced into an agreement that they don't want either, and if they are emotional about it, this could happen. Unless the Mediator addresses the feelings of the parties and the emotions that they generate, this could be a hazard. It is so easy for the party who believes they have been victimized to see oppressors everywhere, including in the mediator. Remember to remain neutral by validating that the person has the emotions, but not sharing the emotion.

Its as basic as knowing what each party wants from the session and prioritising what's most important to each. You often find common ground when you bring the parties together with their priorities. Understanding what a person's absolute, no budge outcome requirement is pretty much going to shape the session ....Always looking for compromise

Many times the parties have been so embroiled in the conflict that they have lost sight of the goal. The battle becomes the goal, winning at any cost means annihilation of the opponent. Gladiators anyone? But the good mediator will take the pulse of the participants, and recheck it regularly. Helping the parties express what meaningful goals are is very important. The mediator's job is to assist the parties reach a negotiated compromise. Those are significant terms-"negotiated" everyone has a say in it; "compromise"- one side does not get everything that it wants, everyone has to give up something.

Many jurisdictions require parties to reduce their mediation settlement agreement to writing, but even when there’s no legal requirement it’s always a very good idea. Having a written record of what was agreed during mediation can help ensure everyone is on the same page and that the settlement terms are actually implemented. Occasionally, the process of writing a settlement agreement identifies miscommunications during the negotiation, and it is important to get those items sorted out. If a party fails to comply with the terms of the settlement, having a written document can be essential to enforcing the settlement and ensuring it is implemented as intended.

Mediators should require the parties to prepare "in blank" settlement agreements that they exchange a week before the mediation. Then the "boilerplate" terminology can be addressed before the mediation session. IMHO, the worst thing is for the mediator to be writing up the agreement for the parties to sign, this is not their job and they lose the position of being a neutral, especially if they have to defend terms that are in the document. Having a written agreement that is fully executed at the end of the mediation session, whether in person or virtual, is critical. "Buyer's regret" is a really ugly monster, prevent it from hatching by having a settlement agreement ready- prepared by the attorney for the parties.