One technique I often get requests to train on is managing an imbalance of power. There are effective techniques for handling power imbalance, however before we go too far, let’s consider what is an imbalance of power?
Power Imbalance: So What!
My guess is you are reading this article because of the title. And about now you are hoping I did not use an attractive title to lure you into an article about some sad story about power abuse I suffered in graduate school or something. Graduate school is not always fair and just. Nobody said it would be. Life isn’t fair. A lot of people suffer. Suffering the misuse of power does not create a position of privilege. Get over it! You are right. And that is why this is not a power imbalance story about one of my grad school experiences.
But wait a minute. You are right. Life isn’t fair! Some people have more power than others and therefore the risk of being hurt by their power seems considerably high. In fact, I am willing to wager that many, no most, of you either have been or currently are in some relationship where the power is not equal and you too have a story to tell about the suffering this imbalance causes. If you do not have a personal painful power imbalance scar story, then I will bet you are a witness to power imbalance scarring.
Well, if power imbalance is such a natural state of affairs in so many areas of life, then why are we making such a big deal about it at the mediation table? Bluntly put: Why can’t the technique simple be: “Life isn’t fair. We all have to suffer an occasional power imbalance every now and again in life. So, get over it?”
I mean really, in some cases isn’t an imbalance of power necessary, preferable even? I want the boss to have the financial risk when the bottom falls out of the market. I want the university president to have more power than my grad school professor. I want the judge to have more power than the man I am suing. I certainly want the judge to have more power than me, because I want the judge to make him do what I want. I want more power than my 15-year-old daughter. So someone at the mediation table has more power. Big Deal! Why should the one with less power get special treatment? Why should this party be singled out? Why should a socialist philosophy be insinuated at the mediation table just because a few unrealistic bleeding heart mediators wish to escape from the real world? We do not live with a balance of power in everyday life--why the surprise it exists in our mediations as well?
Power Imbalance in Mediation: A Big Deal
The issue of power at the mediation table concerns Self-Determination and 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. A cornerstone of the mediation process is the protection of self-determination. 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. Empowering someone to determine for themselves the outcome of their conflict is part of the design of the mediation process and the skill set of talented mediators. Any challenge to a party’s power to self-determine should be a concern of the talented mediator, requiring some serious attention and skill application. If a mediator does not recognize and address this challenge then the mediator could unwittingly become an accomplice or collaborator in undermining a party’s power.
Imbalance in and of itself is not a problem. When an imbalance affects self-determination something needs to be done. There are many forms of imbalance. You could see informational imbalance; for example, when a spouse does not disclose a hidden asset in divorce mediation. Self-determination is in jeopardy because your choice of outcomes is not real. Or the imbalance could be emotional where one party is overpowering or taking advantage of a meeker or less confident participant. Or a party might have better self-control in difficult situations. The imbalance could be intellectual, verbal, or an imbalance of experience (for example: managing the business or family checkbook or finances). The imbalance could be simply between the numbers of parties at the table. For example, it is not unusual for a Special Education mediation case to have many people on the side representing the school system, and only one or two on the parent's side of the table. These imbalances need not cause concern unless a party’s self-determination is at risk.
Do eight against one create an imbalance? Yes. Does eight to one risk self-determination? Maybe. Maybe not. One does his or her homework and prepares extensively for the mediation or trial. The other sloughs off any preparation. Does this create imbalance? Yes. Does preparing versus not preparing risk self-determination. Maybe. Maybe not. Does a PhD. against a high school drop out create an imbalance? This is a trick question, isn’t it? I would have to say, yes. However, I will reserve judgment on which way the imbalance goes. I know some PhDs who would not stand a chance against a high school… Sorry, slipping into the grad school stuff again. Moving on. Does a PhD against a high school drop out risk self-determination? Maybe. Maybe not. You get the point.
Therefore let’s change the question a bit, rather than train mediators to recognize what an imbalance of power looks like. Let’s learn to recognize when self-determination is at risk and consider possible actions. One of the reasons this shift is appealing is that it gets me away from having to suggest ways to rebalance power at a mediation table. I am not sure I know how to do that and I’m not sure it really needs to be done. I have skills for empowering self-determination. I’m pretty sure I cannot infuse power-less parties with more power. Let’s look at a few available techniques capable of addressing self-determination.
Communication Skills: Listening
One indication of an imbalance of power is verbal bullying. The first technique for addressing an imbalance of power is the talented mediator’s superior communication skills. One effective way to support self-determination is to offer the party the one thing they are not getting: a complete hearing. For example: for the sake of avoiding harmful gender stereotyping, we will name the “victim” Jim. When Jim is continually cut off, you can slow down the verbal tempo by interrupting and asking a question. Asking the bully a question can take damaging attention off Jim. Asking Jim a question can stall the bully and give Jim a chance to speak. While the bully may not listen, may even attempt to cut Jim off again, you can simply interrupt again saying, “Excuse me for a moment. I was curious about what Jim was saying.” Then turn back to Jim with, “Please continue.” (Add words where needed).
Two things to notice about this technique: First, it does not matter if the bully hears Jim. In fact it is not important that the bully hear Jim at all. If the goal is to create a balance of power between the bully and Jim, then my concern could be about the level of respect Jim is not getting from the bully. But that is not my concern. Rather, my concern is that Jim has power enough for self-determination. I can do that by listening to Jim, by making sure Jim is heard (if no where else, then with me), by facilitating a process where Jim has a chance to think through all of his options. Which leads us to the second thing to notice about this technique: by showing interest in Jim’s comments, I am communicating that Jim’s comments are valuable. I am placing value where the bully will not. It is important to me, as the mediator, to hear Jim. Therefore, what Jim is saying is important. Where the design of the bully is to undermine value, I can counter-suggest if you will, value. Breaking the bullying tempo and inviting Jim to talk (to me) can create enough power for Jim’s self-determination.
“Why are you spending so much time listening to what Jim says!” the Bully says. “You think Jim is more important than I am!” Ah, what about neutrality, or the perception of bias? The perception of lost neutrality should not keep me from doing my job. Is there a risk? Yes. But by not trying something, I risk collaboration with the bully. How about this: “I’m sorry if it looks like I am favoring Jim’s comments. I certainly do not mean to be giving that impression. I am equally interested in what you have to say on the matter and want to provide you with equal time. Was there something you wanted to add or can you tell me more about...” Managing the risk of an accusation of your imbalance (ironic, isn’t it), can be a matter of time management at the table. How much time are you spending with Jim? Are you having lengthy discussions and inquiries? Alternate your attention between the two. Turn back to the bully and ask a question or summarize the bully’s position. Pay attention to the flow and focus of the communication. Manage the tempo, manage your timing and your communication skills can empower self-determination.
Communication Skills: Question Asking
One way to manage timing is with question asking skills. Simply make sure you get a chance to hear Jim’s response to your questions. By asking general background questions in joint discussion both Jim and the bully get to respond. If the bully cuts Jim off with a tirade or patronizing discourse you can simply claim missing data from your information or fact gathering. “Excuse me. Looking at my notes I seem to be missing Jim’s comments on my question about leave policy. Jim, can you help me out and tell me how you understand the leave policy?” It appears you are filling in gaps. Filling out “forms,” or getting all the data, or fulfilling your mediator obligations requires Jim to speak and be heard (by you). Using these “excuses” to have Jim talk can take attention off any focus on Jim, keeping it innocent, maintaining balance, staying neutral.
Question asking in caucus can lead to reality testing. “What happens if you decide to ‘cave-in,’ as you put it, Jim? What benefit is there for you, in an effort to avoid conflict here today, to pick a solution you are unhappy with?” “What could happen here today if you could select a solution that really makes you happy?” Realty testing with good question asking skills can be an effective way to get both bully and Jim considering potential outcomes, as well as the benefit/loss ratio (See the Benefit Matrix in “Discovering Benefits )to them for each potential solution. Outside Resources
Imbalance of power can also manifest itself via information. One party may have more information or experience than the other. Say, for example, one person in a marriage manages all of the finances for the home. If they are in your divorce mediation, then an ability to make financial decisions may be out of balance. A way to balance self-determining power could be appealing to the use of outside resources. Giving “homework” to the couple can be a good way to get information on the table. The “homework assignment” may require the party weak in financial experience to get help with the assignment in order to have it done for their next session. In reviewing the assignment, “Do you understand what you have to have ready for our next session? Do you have the resources and the help you will need to get this done? Is there anyone you can turn to assist you with this work?” There may be a pastor or minister who can help, a family member or a friend. Comparing results next session can bring to light areas for discussion, further explanation, or maybe further homework.
Another way to get information on the table is for the mediator to be as ignorant or inexperienced as the parties need. Asking for further clarification on a particular issue when you know one party is not getting the explanation or is overlooking a point can bring self-determining information to light. “Let me see if I understand family leave again.” You say that if… Is that right?” “So, does that mean if I…” Or, you can fill information gaps with experts not at the table: “Is there someone you can call to give you the information you need?” “Would the Personnel Director or HR Manager be someone you could turn to fill in the gaps we seem to have here today?” These types of inquiry can aid the flow of information. Especially when the information impacts a party’s ability of make an informed decision in his or her best interest. Information imbalance is similar to bullying. A special application of the type of questions you ask, i.e. appeals to an outside resource, and the way you facilitate the information flow and focus at the table can address information imbalance.
This requires some decision-making and judgment calls by you, the mediator. Remember, the issue is not equal power, but self-determining power. Parties have a right to be stupid and make poor choices (at least choices we might feel are stupid and poor). It is not our job to empower parties to make the “right” or “best” choice, whatever that might be, but to protect self-determination. That is why mediation is a skill set beyond just empathetic listening or therapeutic exploration. Empowering people to make informed decisions in their own best interest is the cornerstone of self-determination and the lifeblood of a master mediator.
Another technique for managing communication and information is agenda setting. First opportunity to create an agenda is during joint discussion using chart paper. It is easy to list items that come up during opening statements and joint discussion. While summarizing their opening statements list their topics. This creates focus and structure to their communication. By identifying topics, you can turn to each party for information or perspective on that topic. “Now that we have a list of topics important to both of you, let’s talk about each of them in detail. Jim, tell me what is important to you about….”
A second agenda setting opportunity exists in caucus. Meeting privately with each party and developing an agenda for topics they each want to discuss when everyone gets back together assures Jim’s agenda items equal exposure when we reconvene together. “Jim, one of the things you said you wanted to talk about was... Can you say more about this?” Be careful not to speak for parties. The agenda assures topics are not forgotten. It is not your role to talk about the topic yourself. Get parties talking for themselves about what is important to them. Agenda setting can structure their communication in a way that is hard to perceive as bias attention toward Jim.
Roleplying a hypothetical conversation during caucus can greatly increase the possibilities for self-determination. For example: “Jim, I have four items here you wish to discuss when we get back together with bully. Are you willing to discuss these items with bully?” “Yes? Good.” “Let’s talk about how that conversation might go. If you say XYZ, how do you think bully will respond? Let’s roleplay possible responses together: how would you respond if bully says…” Roleplaying hypotheticals can be a way to empower Jim’s ability to self-determine. Jim gets the chance to think through possible scenarios and how he might manage them. “If bully says, this; if bully says, that; if bully says, Yes; if bully says, No....” Assume it is impossible for you to think of every possible combination of potential responses. The exercise is enough to equip Jim with issues important to him, prioritizing them with him in such a way that he can apply his knowledge to whatever bully says.
Roleplaying hypotheticals can also be a useful technique with the bully. “I don’t know what Jim will say, but how do you think Jim might respond when you say XYZ? Let’s talk about how the conversation might go roleplaying possible responses together.” If bully’s response suggests an intimating tone, act it out. “If Jim’s agreement is the result of him feeling some kind of intimidation, how do you think this might influence Jim’s future behavior in the workplace? Would there be any benefit to you if Jim’s decision or agreement was not the result of intimidation?” And/or, “What benefit to you is there for Jim’s decision or agreement to be the result of some feeling of intimidation?” Roleplaying allows the consideration of “pretend” responses. Bully may not consider the possibility that his or her communication may be causing intimidation.
Remember, intimidation, in itself is not your primary concern. It may be sad that Jim feels intimidated in his workplace or his relationships. Jim may simply be weak, feeling intimidation where there is none, unable to stand up for himself. It is not mediation’s role to teach Jim assertiveness. His therapist can help him with that. Your role is to address Jim’s ability to self-determine. And guess what, intimidated people can self-determine.
The most powerful technique addressing an imbalance of power is need exploration. Working with Jim, identifying his self-interest(s) can empower negotiation. Helping Jim name his need(s), helping him structure a way to discuss his need(s), exploring possible options for meeting his need(s) can empower Jim. Identifying need can be the best antidote for power imbalance due to information, emotion, verbal ability, etc. Pretend for a moment that you do have the ability to balance power to the level of equality. Both bully and Jim have equal information, equal respect, equal power, equal verbal ability, and equal experience. Assume, too, for a moment, we ignore any process to identify Jim’s need(s). What good is the balance? If Jim (or the bully, for that matter) is going to self-determine the outcome of this conflict, I would rather he do it around his need(s). All the power balance in the world will not help Jim’s determination process more than his ability to speak to and negotiate around his need(s).
All the techniques above will work to address an imbalance of power at the mediation table. However, the two I rely upon most are my communication skills, facilitating the information flow and focus enough to hear Jim and my need exploration skills, uncovering Jim’s self-interest. To the degree self-interest drives any of us, Jim is most likely to standup for his self-interest(s), especially if a process is available to identify them and to discuss them.
The bottom line is this. Knowing his need(s), Jim now has the choice to either negotiate a resolution addressing them, because they are important to him, or “cave-in” to a resolution knowing he is sacrificing his need(s) in the “cave-in.” By choosing, Jim gets to practice self-determination. The mediation process, then, does what it is designed to do. I employ my skills to ensure mediation gets a chance to do what it is designed to do. No more, no less.
Terminating the Mediation
If a power imbalance is such that you determine that self-determination by one of the parties is unobtainable, then I recommend terminating the mediation. Not getting an agreement is better than getting a bad agreement. Understand what is at stake here. On the one hand: terminating the mediation, if self-determination is not possible, you end the chance for bully to determine Jim’s future by offering the opportunity for a judge or hearing officer to decide Jim’s future.
On the other hand: by terminating the mediation, if self-determination is not possible, you end the chance for bully to determine Jim’s future and you becoming a collaborating perpetrator or a by-stander.
Since the question is not how much power does a party have, but rather does he or she have enough power for self-determination, an imbalance of power at the mediation table does not require a rebalancing act. Balance never has to be about creating equality at the table. It never has to be about taking someone else’s power away from them and giving it to another.
There may be circumstances where power imbalance is inevitable, even preferable. Even so, empowering a self-determination process could be of immense value in many relationships, organizations, and teams. Learning and practicing these highly transferable skills promotes response-ability and protects self-determination in the mediation process.