Power imbalances in mediation - Part 3

This is the third and final part in a series of posts about managing power imbalances in mediation. Parts 1 and 2 of this contribution (https://www.dhirubhai.net/pulse/power-imbalances-mediation-how-far-should-mediator-go-barney-jordaan/ and https://www.dhirubhai.net/pulse/power-imbalances-mediation-part-2-barney-jordaan/) looked at and compared the concepts of neutrality and party self-determination in mediation. This final part looks at some techniques for promoting part self-determination.

5. Techniques to promote party self-determination

5.1 Introduction

The reality then seems to be that mediators cannot really be ‘neutral’, nor - if it would be possible - will neutrality necessarily be an ideal state for a mediator. Further, as we’ve seen, the question is also not whether mediators should ‘balance’ the power of the disputing parties, but whether the parties have enough power for self-determination and, if not, what the mediator can do to promote it. 

The need for party self-determination in mediation is not limited to situations where a perceived power imbalance exists, yet this is probably the area where the need for it is most acute (Boulle & Nesic 2010). 

It is difficult to talk in the abstract about the proper balance to be struck between mediator intervention and party self-determination, or to formulate general rules in this regard as the context of the dispute (e.g., familial, social, commercial), cultural factors and considerations of timing (at what stage of the process the intervention takes place), party attitude and circumstances (e.g., whether they are legally represented or not; whether they are both amenable to a particular level of intervention) and a party’s personal situation (e.g., emotional state, educational or positional status) could influence the extent and appropriateness of the mediator’s intervention (Boulle & Nesic 2010). At best one can suggest some techniques that could be used in appropriate cases to promote party self-determination.

However, it is worth cautioning again that mediators must be conscious of their own power and the potential impact that might have on party self-determination. As Baharvar (2010) notes, a mediator’s ‘process moves’ (such as suggesting an agenda, reframing the issues as the mediator sees them, allowing or not allowing non-parties to the case to be present or to speak, using the one-text procedure for drafting a settlement agreement led by the mediator, or urging the parties to get an outside expert to decide technical questions) almost always have substantive effects. These actions affect how comfortable parties feel in settling and how in control of the situation they perceive themselves to be. In turn, such actions may impact their substantive choices in their eventual agreement. (Baharvar 2010)

5.2 General techniques for promoting self-determination in the context of power imbalances

Several techniques for managing power imbalances have been suggested by leading practitioners and theorists. Mediators must decide situationally whether a particular intervention is appropriate and how they can ethically minimise their input and maximise the control of the parties (Astor 2007). 

a. Moore 

Moore (1986) suggests that mediators should encourage parties to list their own sources of power and then identify the costs or benefits of exercising it. The same procedure should then be followed for assessing the opponent’s power. In other words, the mediator merely assists each party to explore their own and the other party’s strengths and weaknesses. In situations of asymmetrical power relations the mediator could, e.g., assist the weaker party to organise and analyse relevant data; identify and mobilise his or her means of influence; assist and educate the party in planning an effective negotiation strategy; aid the weaker party to develop financial resources so that she or he can continue to participate in negotiations; refer a party to a lawyer or other resource person; and encourage the party to make realistic concessions. For Moore the purpose is not to balance power but a matter of recognising the reality of the environment in which the parties operate and helping them to try and reach an agreement.

b. Boulle & Nesic

Boulle & Nesic (2010) propose what they refer to as a ‘middle of the road’ approach that involves purely procedural moves on the part of the mediator. Their starting point is that while mediators do have some responsibilities to manage power relations these should revolve around their control over the mediation process only: 

'Mediators are not the advocates of the less powerful party, nor the champions of the poor and oppressed. The focus is on practical ways in which mediators can deal with the power issue through control over the procedure.' (2010: 264). 

They propose several possible procedural interventions to deal with problematic power imbalances, e.g., using listening and questioning techniques; agenda setting; needs exploration; assisting all parties to obtain relevant information; encouraging a party to use legal representation where necessary; arranging for the process to be held in a neutral, safe venue; appropriate physical, environmental and timing arrangements; closely enforcing ground rules; and termination of the process in case of abuse of power by any party.

In an earlier work Boulle (2005) also suggested that better use could be made of the intake session, inter alia, to determine just how suitable a case might be for mediation. A case would not be suitable if, e.g., there is a gross imbalance of power between the mediating parties which is likely beyond the power of the mediator to address. This includes cases of domestic violence or abuse, or where one party does not have the financial or personal resources needed to participate effectively in a mediation as when a party is bankrupt.  

c. Mayer

For Mayer (1987) the mediator's commitment should be to empower all the parties by strengthening the process itself. This means advocating procedures that encourage the development of sound, integrative decisions, including helping parties gain access to relevant data and information; ensuring the opportunity for each party to be heard; helping parties to separate and articulate feelings, values, perceptions, and interests and to identify all relevant interests including those of unrepresented parties; helping to develop a creative set of options that maximise the parties' individual and collective interests; helping parties evaluate the options that have been identified and their alternatives to a negotiated agreement; designing and assisting in the selection of the options that maximise the satisfaction of the parties; formulating the selected solution in a manner that increases its chances of being mutually acceptable and anticipates to the greatest extent possible the potential for future misinterpretations or manipulations; and assisting in the design of an implementation procedure that promotes compliance and follow through. 

Mayer (1987: 83) also suggests a number of principles to guide intervention by mediators:

• Mediators should be conscious of their own power. It is better to do so than to deny its reality in the name of neutrality.
• Mediators can more effectively give advice, make suggestions and get parties to think about things they would prefer to avoid by asking the right questions and reframing statements that have been made by others than by stating an opinion or making assertions.
• It is safer to exert influence in support of the process or the parties' mutual interests than in support of one party. When it is necessary to support one party, it is better to do so by empowering that party, providing an opportunity to be heard, helping to gain access to expert advice or necessary information, and so forth, than it is to support a party by trying to diminish someone else's power or by advocating substantive proposals that support the weaker party's interests.
• When a mediator decides it is necessary to exert direct influence in support of a substantive outcome, it is best to do so by providing information rather than by stating opinions or putting pressure on the parties.
• For mediators to be successful, they must trust the process. This means enabling the parties to use the process to discover acceptable results for themselves rather than placing too much emphasis on the mediator’s own insights about potential settlements.

Exerting influence and maintaining neutrality are not necessarily a contradiction. The mediator loses impartiality only when he or she exerts influence in favour of one party at the expense of the other.

d. Rooney 

Rooney (2015), like Boulle (2005), argues for greater use of pre-mediation conferences with the parties and their representatives, if any. For him such sessions are one of the biggest contributors to the success or otherwise of a mediation.

e. Rogers 

Rogers (2004) argues that mediators should address the impact of power by helping the parties to understand the dynamics of power. To do this, mediators would need to discuss with each side the sources of power available to them and the other side, and the factors that would affect their willingness to use that power at the start of and throughout the mediation. The parties are left to decide how to deal with their awareness of the impact of power on their dispute. The mediator would need to assist the parties to consider whether mediation is the best process for them to be involved in and what steps they would need to take to protect their own interests. Mediators would also need to be able to assist the parties to rely on the power that is available to them in the negotiation.

6. Implications for mediator training and assessment

'[T]eaching mediation is a paradoxical affair; someone who is supposed to know teaches someone who wants to know what it means not to know.' (Rooney, 2015: 16)

What are the implications for mediator training if the mediator’s role is not seen as that of a ‘neutral’ third party but allowance is made for appropriate and active process interventions to ensure party self-determination? Detaching from mediator neutrality and refocusing away from the parties and on to the mediator will result in a change in how mediators are trained and how they are supervised (Rooney 2015).

For Rooney (2015) detaching from the concept of mediator neutrality elevates the role of the mediator to a position as a participant in the process equal to that of the parties and opens the door for an in-depth examination of what he calls the mediator’s ‘use of self’. Astor (2007) refers to the need for continuing education to support the development of a mediators’ understanding of their own perspectives and their impact on mediation.

At a more practical level, de-emphasising mediator neutrality and focusing to a greater extent on the role of the mediator in promoting party self-determination through procedural interventions would also require adjustments to, e.g., an understanding of power and the role it plays in conflicts and disputes; an appreciation of the power of the mediator and how process interventions could have potential substantive implications; and greater emphasis on the pre-mediation phase. In the latter regard the so-called ‘guided choice process’ developed by Paul Lurie and others could be of assistance (Lurie 2013; Lurie & Jack 2014). For a more detailed discussion, see Jordaan (2016). 

It is also necessary for mediators to develop the ability to vary mediation styles between more and less interventionist approaches, depending on what the parties and the process requires (Mayer 2004). True empowerment of the disputants lies in the mediator’s ability to adjust the process to what the disputants actually want out of it, e.g., reconciliation, an economic settlement, a solution that makes business sense, or just to be heard. The imposition of a single form of mediation obliterates the essential diversity and flexibility of mediation and may impose a process the parties don’t want or don’t benefit from (Jordaan 2016).

7. Conclusion

Power disparities are a reality of life, also in mediation. Just how much responsibility should mediators assume to adjust power imbalances that exist or arise? The answer appears to be that the mediator should not attempt to ‘balance’ the relative power of the parties but rather to promote party self-determination through appropriate procedural interventions. In doing so, however, mediators need to be aware of the potential impact that these interventions might have not only on the process but potentially also the outcome of the process and therefore ought to tread with forethought and caution.

Bibliography

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