Mediation Power Imbalance Problem Question PDF

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Problem Question on how a mediator can prevent a power imbalance during a mediation session, the argument is that although power imbalances are inevitable the role of the mediator is to reserve the parties ability to be determine the outcomes for themselves. ...

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Can a mediator prevent a power imbalance from occurring in a mediation session? Comment?

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There is no one that could prevent any power imbalances at all from occurring in a mediation session, however it is well within the skill set of amediator to prevent a power imbalance from diminishing a party's ability to voluntarily make determinations for themselves despite any imbalance. It is certainly not the role of the mediator to artificially remove all of the imbalance between participants in terms of power, they must simply create the environment and process for each party to voluntarily agree to something without being coerced. This does involve adjusting the imbalance at the mediation table which must skilfully be done in such a way with a commitment to the principle of neutrality and impartiality. This paper will set out how mediators achieve this 1. Determine exactly what is meant by 'power' in the context of a mediation session. 2. Consider how and when mediators can respond, providing examples of different types of power imbalances.

Part 1. The Meaning of Power in Mediation Sessions For the purposes of this paper the meaning adopted in a similar academic analysis will be used, that is: 'power can be broadly described as the actual or perceived ability of one person to exert influence upon another person’s behaviour or thoughts'.1 There are several lists and charts found in textbooks and articles, the most exhaustive of these contains 26 as they are

1 John Wade, ‘Forms of Power in Family Mediation and Negotiation’ (1994)Australian Journal of Family Law 8, 40-57, 41.

used by parties in mediation.2For simplicity it is appropriate to consider the following types of power: 

Resources3



Strategic4



Emotional or psychological5



Cultural6



Physical7

Referring to the debate over the importance and weight of power imbalance an American mediatorwrote:

"The issue of power at the mediation table concerns self-determination and a mediator’s neutrality. In fact, there is not anything to get excited about encountering an imbalance of power at the mediation table: unless it affects a party’s ability to self-determine. If a party cannot self-determine their own future, then little difference exists between mediation and a judge or hearing officer deciding their fate for them."8

The design and framework of mediation in Australia similarly exists to empower someone to determine for themselves the outcome of their conflict if they want to, and the skill set of mediators is a crucial part of that.9 Mediators should understand and be mindful of the

2John Wade, ‘Persuasion in Negotiation and Mediation’ (2007) 10 Australian Dispute Resolution Bulletin 8-12. 3Financial power, skills, information power, education.

4When the more powerful party has more to lose by not reaching an agreement, or the apparently weaker party has strong public support 5Power intelligence, social status, personal power over an individual. 6Through being of the dominant race or ethnicity, sexual orientation or by being able-bodied. 7The ability to intimidate the other party and influence their Power. 8Rick Voyles, Managing an Imbalance of Power, October 2004, Accessed on 16 October 2017: http://www.mediate.com/articles/voylesr3.cfm 9DimitriosEliades, ‘Power in mediation - some reflections’ [1999] Australian Dispute Resolution Bulletin2, 1 Art. 2

various sources of power which may influence negotiations.10If this information does not arise through questioning at intake it places the responsibility on the weaker party to declare the imbalance (which they may not themselves be aware of) orrelies on the mediators' skills in power imbalance identification.11

Part 2. Mediator Response There will inevitably be basic power ‘differences betweenparties and a mediator can and should address these if they get in the way of productivenegotiations.'12Mediators should engage the parties in such a way13 that encourages parties to use the types of power that work in harmony with the 'mediation process, which promotecollaborative negotiations and which are appropriate tothe issues and people involved14. This can include:persuasion, information, appeals to principle, and rewards. It is important for the mediator to interfere when a party usesthreats, intimidation or sanctions which are coercive powers.15There are numerous steps16 a mediator can employ to change the power dynamics ofthe parties, a small select few will be discussed below, with reference will be made to a hypothetical example of a mediation involving ‘Bob’ and‘Andrew’.

Listening

10Wade, above n 2. 11 Rachael M. Field, ‘Mediation and the Art of Power (Im)balancing"(1998) QUT Law Journal 12, 264-273, 269. 12Bernard Mayer,‘The dynamics of power in mediation and negotiation’ (1987) Mediation Quarterly75–86l, 76.

13Davis, A. M. and Salem, R. A. ‘Dealing with power imbalances in the mediation of interpersonal disputes’(1984) Mediation Quarterly, 17–26, 17;Mayer on the other hand, argues that that the idea that power can be balanced is misleading: Wade, above n 10, 51. 14Voyles, above n 8. 15 Field, above n 11, 270. 161) avoid unnecessary assumptions, 2) exploit mediation’s innate ability to address power imbalances, 3) encourage knowledge sharing, 4) use desire to settle as a lever, 5) compensate for low-level negotiating skills, 6) interrupt intimidating negotiating patterns, 7) make accommodations for language differences, 8) respect the needs of young parties, 9) watch to see that one party does not settle out of fear of violence or retaliation, 10) create environment that offers information and support, 11) do not rush settlement: AM Davis and RA Salem, ‘Dealing with Power Imbalances in the Mediation of Interpersonal Disputes’ (1984) 6 Mediation Quarterly 17, accessed on 16 October 2017 from http://sites.thomsonreuters.com.au/journals/2011/06/30/family-dispute-resolution-the-importance-of-an-intake-excerpt-fromfam-l-rev/

There is an indication of a difference in power as Bob continually verbally abuses Andrew, who then struggles to express himself possibly17as a result of feeling intimidated by Bob’s pattern of interrupting.18The one thing Andrew may need is to actually be heard even if all it achieves is a clarification of his own value in coming to an agreement.19 WhenBob cuts off Andrew, the mediator can say "sorry I would just like to hear what Andrew was talking about, can you please finish explaining that to me Andrew?" This achieves both a validation of Andrew's right to have his own opinions (does not validate quality of the opinions) which is what Bob's bullying disempowered. Secondly it lets him be heard, perhaps not by Bob, but at least heard. Interrupting the intimidation of a weaker party can be enough to give the other party the power they need for self-determination.20 Question Asking Another 2 well established categories are strategic and resource power, which can significantly alter the power dynamics between parties. Imagine for example that Bob earned a degree in accounting and was responsible for the financial care of their business, their power to make a financial agreement may be well out of balance. To address this a mediator can be as ‘ignorant or inexperienced as the parties need’.21When Andrew is passive in discussion and misunderstanding financial discussions the mediator can empower him by asking for Bob for further clarification on a particular issue: “So the reason your able to pay a reduced tax rate on that source of income is…?” Agenda Setting

17Ibid, avoid unnecessary assumptions’.

18 This would fall under the ‘Emotional’, ‘Humiliation’ and perhaps ‘Association’ categories of power: L Boulle, Mediation: Principles, Process, Practice (Lexis NexisButterworths, 3rd ed, 2011) 35. 19Timothy Hedeen, ‘Ensuring Self-Determination Throughout Mediation: Ethical and Effective Practices in Screening Cases, Preparing Clients, and Avoiding Coercion’ Breakout Session Transcript,CADRE Fifth National Symposium on Dispute Resolution in Special Education during October 2011. 20HAstor,‘SomeContemporaryTheoriesofPowerinMediation: APrimerforthePuzzledPractitioner’2005(16)AustralasianDisputeResolution Journal 30. 21Voyles, above n 14.

This forms part of the process of mediation, and is helpful as it gives focus and structure. In this hypothetical case both parties are brothers, and from Nigeria, and Andrew in his daily life wanted to assert his opinion or needs in relation to a conflict but due to the fact the first born son is revered in Nigerian Culture22 he habitually ‘never gets around’ to properly addressing matters with others. The agenda doesn’t allow topics to be forgotten and the training and skills of the mediator means they are well placed to attend to people who are often ignored and that do not stand up for themselves.

Role-play Hypotheticals To deal with an imbalance in the persistence and persuasion23types of power roleplaying may be ideal to empower the party that lacks endurance and isn’t able to articulate their position convincingly.24This would need to happenoutside the mediation session in caucus, if it appears Andrew will not be able to advocate for his own interests regarding a crucial matter the mediator may ask if they can role-play a hypothetical conversation, and if willing then ask “how do you think Bob will respond? If he says this how will you respond? What if he says this instead, or this, or this?” Such roleplaying is enough to empower Andrew with stamina, and a clear understanding of how to defend his position on his feet, responding to different scenarios.25

Defining the Problem Discovering needs ‘can be the best antidote for power imbalance due to information, With knowledge of his own needs Andrew will have the choice to either ‘negotiate a resolution addressing those needs’ because they matter to him or agreeing to something knowing he is 22Dons Eze, ‘Nigeria and the crisis of cultural identity in the era of globalization’ Journal of African Studies and Development (2014) 6 (8) 140-147, 142. 23Laurence Boulle, &NadjaAlexander, Mediation: Skills and Techniques (Lexis NexisButterworths, 2nd ed 2012). 24ClaireBaylis and Robyn Carroll, ‘Power issues in mediation’ (2005) ADR Bulletin7(8), 1. 25Voyles, above n 21.

sacrificing his needs.’26 Although not both options are ideal in terms of a substantive or social justice sense.27

Preparation at Pre-mediation ‘Vicki’ informed a mediator at pre-mediation of the nature of harassment and explained that a minor part involved her boss Derick starring at her consistently before escalating the harassment. Vicki describes feeling unable to focus whenever he looks at her for any more than 20 seconds. The mediator could do two things: 1. Arrange the room with Derick’s chair placed in such a way that it would be uncomfortable for him to fix his eyes on Vicki for any longer than a cursory glance. 2. Have a predetermined signal for Vicki to notify the mediator if she needs to leave the room. This prevents Derick from having power over her emotions and the perception that she is weak, which is often an advantage in negotiations.

Violenceagainstwomenand mediation The power imbalance that occurs when there is violence against women 28 (and simply the differences between the genders) has been a contentious subject 29 in the realm of mediation since the early days of its modern inception. 30While there have been many years for guidelines, policy and amendments 31 to try ‘solve’ the issue,there are still critics of what exists in the current system. 32Domestic violence is rooted in a struggle for power and control 26Ibid.

27Mary A.Noone,‘TheDisconnectbetween TransformativeMediationandSocialJustice’ (2008) 19 Australasian Dispute Resolution Journal 114, 119. 28Eliades, above n 9. 29Davis, above n17. Tarrant Stella, 'Something IsPushing ThemTotheSideofThierOwnLives:AFeministCritiqueofLawandLaws'20WesternAustralian LawReview (1990)573, 581. 30Presented by Judge Joe Harman to the National Mediation Conference Melbourne, From Alternate to Primary Dispute Resolution: The pivotal role of mediation in (and in avoiding) litigation, Delivered on 10 September 2014: “Mediationis nolonger a stronglyprincipled,philosophical child.Mediation isamature adultof 30yearsof ageor more.”Accessed on 16 October 2017 from http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/speechesconference-papers/2014/speech-harman-alternate-to-primary-dispute-resolution 31Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review, Vol. 14, pp. 285-318. 32 Janice M. Barrett, Christina M. Bates, The Role of Mediation in Divorce and Child Custody Disputes in Which Domestic Violence is Present: A Research Pathfinder, 3 (Boston University 2010). Secondary Victimization of Abused Mothers by

over others, which is precisely the opposite of mediations goal to ensure self-determination, and consequential interactions. There has been a long understanding that victims of violence33 are at an especially high risk of being unable to mediate due to the likely hood of the perpetrator of violence being perceived as a threat. Policy setting out when it is in appropriate for mediation to go ahead have had to be ignored when mediators are met with parties who have little by way of resources or ADR options.

Echo A. Rivera, Cris M. Sullivan, April M. Zeoli, Feminist Criminology 2012 Vol 7, Issue 3, pp. 234 – 252 and Cleak, Helen, Margot Schofield, and Andrew Bickerdike. “Efficacy of Family Mediation and the Role of Family Violence: Study Protocol.” BMC Public Health14 (2014): 57.

33

Bibliography Books Boulle, L, & Alexander, N, Mediation: Skills and Techniques (Lexis NexisButterworths, 2nd ed 2012).

Boulle, L, Mediation: Principles, Process, Practice (Lexis NexisButterworths, 3rd ed, 2011) 35.

Journals Astor, H,‘SomeContemporaryTheoriesofPowerinMediation: APrimerforthePuzzledPractitioner’2005(16)AustralasianDisputeResolution Journal 30 Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review 14 Baylis, C, & Carroll, R, ‘Power issues in mediation’ (2005) ADR Bulletin 7(8)

Cleak, Helen, Margot Schofield, and Andrew Bickerdike. “Efficacy of Family Mediation and the Role of Family Violence: Study Protocol.” BMC Public Health14 (2014): 57 Davis, A. M. and Salem, R. A. ‘Dealing with power imbalances in the mediation of interpersonal disputes’ (1984) Mediation Quarterly, 17. Eliades, D, ‘Power in mediation - some reflections’ [1999] Australian Dispute Resolution Bulletin 2 Eze, D, ‘Nigeria and the crisis of cultural identity in the era of globalization’ Journal of African Studies and Development (2014) 6 (8) 140 Field, M.R, ‘Mediation and the Art of Power (Im)balancing" (1998) QUT Law Journal 12

Mayer, B, ‘The dynamics of power in mediation and negotiation’ (1987) Mediation Quarterly

Noone, M, A., ‘TheDisconnectbetween TransformativeMediationandSocialJustice’ (2008) 19 Australasian Dispute Resolution Journal 114

Secondary Victimization of Abused Mothers by Family Court Mediators. Echo A. Rivera, Cris M. Sullivan, April M. Zeoli, Feminist Criminology (2012) Vol 7, Issue 3

Stella, T, 'Something IsPushing ThemTotheSideofTheir OwnLives:AFeministCritiqueof LawandLaws' 20WesternAustralian LawReview( 1990)573

Wade, J, ‘Forms of Power in Family Mediation and Negotiation’ (1994) Australian Journal of Family Law 8, 40-57. Wade, J, ‘Persuasion in Negotiation andMediation’ (2007) 10 Australian Dispute Resolution Bulletin 8-12. Timothy Hedeen, ‘Ensuring Self-Determination Throughout Mediation: Ethical and Effective Practices in Screening Cases, Preparing Clients, and Avoiding Coercion’ Breakout Session Transcript , CADRE Fifth National Symposium on Dispute Resolution in Special Education during (2011)

Websites http://www.mediate.com/articles/voylesr3.cfm http://sites.thomsonreuters.com.au/journals/2011/06/30/family-dispute-resolution-theimportance-of-an-intake-excerpt-from-fam-l-rev/ http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-andpublications/speeches-conference-papers/2014/speech-harman-alternate-to-primary-disputeresolution...