Much has been written about power imbalances in mediation, and it is my belief that there is much confusion regarding the term. The term “power imbalance” seems to be used to describe one of the following situations: (a) where the BATNA of one party is much less desirable than the other; (b) where the information of one party is greater than the other; (c) where there is intimidation or domestic violence; and (d) where one person has a greater capacity to present his case convincingly.
It is important to recognize what we mean by power imbalance before deciding whether the mediator should try to “re-balance”. Case (c) above is the easiest one. In that case, one person in the mediation is behaving inappropriately either in the mediation or outside the mediation. This is simply unfair and should not be tolerated. Whether the mediator stops the mediation or takes some other action is an individual matter that depends on the specifics of the case.
Case (d) is also relatively easy. Part of the role of the mediator is to foster improved communication. If a party is not conveying his thoughts clearly or understanding the other person’s perspective, it is the mediator’s job to help clarify.
Case (b) is also easy. When a party becomes clearer in thinking about the issues in a mediation, any lack of knowledge will be recognized and the party will feel empowered to find a way to get it.
Case (a) is a true power issue. One party simply has more power because he has more options. This is not a situation, however, in which the mediator should or could level the playing field. It is not the job of the mediator to help one party get a better result than his power differential would dictate. For instance, if an employee and an employer are negotiating a salary, and there are many qualified employee candidates, the employer might have greater power. If, on the other hand, an employee had a unique skill and the employer really wanted that employee, the employee would have more power and could command a higher salary. There is no reason why a mediator would feel that it was necessary to level that playing field.
Thus, in my view, true power imbalances do not require balancing by the mediator; power imbalances are a misnomer. When parties are discussing an issue, it is the mediator’s role to foster communication and to reflect back to parties any recognition that they are lacking information they may need. This is empowerment, but it is not a re-balancing of power, since both sides are likely to need empowerment in one way or another. In any case, the mediator is not consciously trying to change the balance, but to create an environment of clear, informed thinking and clear communication.