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Power Imbalance: The Challenge of Leveling the Playing Field

by Bernard Morrow
August 2016 Bernard Morrow

In a recent blog post I focused on ten signs that your mediation may be headed for trouble. One of those indicators was power imbalance.

As a mediator, I am often faced with imbalances caused by a variety of factors: relationship dynamics between the disputing parties, a lawyer having more experience, expertise or knowledge than opposing counsel, or a party being better prepared or more knowledgeable about the facts of the case than another. Unchecked imbalances can have a significant impact on the outcome of a mediation. But, how much can a mediator do to redress an imbalancewithout compromising their neutrality?

WHEN THE SCALES ARE TIPPED

The following exercise exemplifies how power imbalances can negatively influence the outcome of a mediation. Participants form groups and are tasked with depicting on a poster what dispute resolution means to them. Each group is given resources to complete the exercise including pens and pencils, coloured markers, magazines and scissors. Without informing the participants, the facilitator provides certain groups with more resources than others.

Peter Coleman describes the common outcomes of the exercise in The Handbook of Conflict Resolution: Theory and Practice. He discovered that high-resource groups tend to be unaware of the resource disparity until it is pointed out and the low-resource groups tend to notice their disadvantage immediately. While the high-resource groups are enjoying the exercise and being creative with the tools available to them, the low-resource groups are left to look around the room frustrated. More often than not, the low-resource groups convey a negative portrayal of dispute resolution on their poster, while the high-resource groups tend to depict dispute resolution in a positive and optimistic light.

Coleman also noted a negative response to the resource disparity that flows directly from the actions of the facilitator. During the exercise, the facilitator provides the high-resource groups with ideas and encourages them to be creative. Not only do the low-resource groups witness this but the facilitator makes a conscious effort to ignore the low-resource groups and their requests for additional resources. It is this aspect of the exercise that creates the most angst amongst the low-resource groups. It comes as no surprise that by the end of the exercise the facilitator is not very popular amongst the low-resource groups!
 
THE ART OF REBALANCING

What can we take from from this exercise and experiences at the mediation table and how can we apply these lessons in practice?

1. Proactive Preparation for a Positive Mindset

The feeling of being at a power advantage or disadvantage can significantly impact a participant’s mindset at mediation and their level of engagement in and satisfaction with the process. Tip: Foresight and preparation help the mediator identify the possible existence of a power imbalance at mediation. Early detection of a power imbalance, preferably in advance of a mediation session, allows the mediator to work with the parties to identify the sources of the imbalance and develop appropriate strategies for dealing with them. Taking these proactive steps can help participants arrive for mediation in a positive frame of mind, ready to engage in meaningful negotiations.

2. Keep It Neutral

A mediator wields considerable power, with the ability to worsen an imbalance through their response to it. Tip: The mediator must remain neutral in dealing with an imbalance to maintain the trust and confidence of all mediation participants. A power imbalance can be made worse by a mediator who recognizes its existence but oversteps with a solution. Often overlooked is the impact overzealousness can have on the weaker party, even when the mediator has good intentions. As Phyllis Bernard reminds us in Power, Powerlessness, and Process (published in The Negotiator's Fieldbook), “by veering too much to one side, we invoke condescension and paternalism towards the powerless.” Conversely, the more powerful party can be impacted by overzealousness as well. A sense that the mediator is “teaming up” with the perceived weaker side can quickly lead the mediation into troubled waters, leading one or more of the parties to question the merits of the process and the mediator’s neutrality. Encouraging counsel to share information with the other side is a powerful tool the mediator can use to restore balance without appearing to be playing favourites.

3. Participants Often Know Best

The mediation participants (the parties and their counsel) are often in the best position to identify what they need to address a power imbalance. Tip: The mediator should listen for cues from participants to identify solutions for addressing the imbalance that are appropriate and responsive to the parties needs. To illustrate, while I value the use of the joint session, if a party is uncomfortable negotiating directly with the other side due to a perceived power imbalance in their relationship, I will separate the parties during the course of mediation to neutralize the imbalance.    
 
SUMMARY

Power rebalancing in mediation is a delicate art.  A skilled mediator should have the foresight to identify an imbalance and the flexibility and dexterity to implement a plan that will help redress it without compromising their neutrality.

Biography


Bernard Morrow is the principal of Morrow Mediation, a Toronto area based full service alternative dispute resolution (ADR) firm that is focused on delivering timely, fair and balanced mediation and arbitration services and responsive consulting solutions at a sensible price. Bernard has been successfully providing dispute resolution services since 1994.

In addition to conducting his ADR practice, Bernard was appointed the Complaints Resolution Commissioner for the Law Society of Upper Canada for a two-year term commencing April 1, 2014.  He was re-appointed for a second two-year term commencing April 1, 2016.  The Commissioner performs an ombuds role, independently reviewing complaints against lawyers and paralegals that have been closed by the Law Society to ensure they were handled appropriately and the results were reasonable.  The Commissioner’s role is a part-time commitment and a perfect complement to Bernard’s ongoing private dispute resolution practice.



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