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Balance Negotiation Power?

Some theorists suggest that the mediator has an obligation to "balance negotiating power," to, essentially, "level the playing field." The author suggests that this is not the best approach. Rather, the mediator's obligation with regard to negotiation power is to ensure that each party in mediation has sufficient capacity to effectively represent their interests in mediation. In other words, each party must have a certain threshold of negotiation effectiveness to be able to effectively and appropriately take part in mediation.

This determination of capacity to mediate should be made with respect to each party's ability to represent their interests, which is only in part a relative determination between the parties. This determination need not be made at the moment the parties walk in the mediation room door, when one or both parties may well be substantially disempowered. Rather, this determination of capacity to mediate should appropriately be made after the mediator has had an opportunity to educate and empower each mediating party and at the point that substantive negotiations begin. This obligation to ensure each party's capacity to mediate then continues on during negotiations until a comprehensive agreement is reached.

The problem with theories that suggest the mediator should "balance bargaining power" are questions such as: "whom is to be balanced against whom?;" "at what level?;" "at what specific point in time?;" and "how good does the balance need to be?" Should we take the more empowered negotiator and seek to "break them down" to the less empowered negotiator's level? Or should we try to capacitate the less powerful negotiator to rise to the more empowered negotiator's level? Or perhaps we should both break down one and empower the other to some "mid-point." All of this pretends as if negotiating power is a single quality or dimension, when we know that it is multi-faceted, changes over time and changes depending on the specific issue being discussed.

Further, in addition to these challenging practicalities of attempting to "balance bargaining power," there are valid concerns about the impact of such an approach on a mediator's ethical obligation to be impartial (not favoring any party over any other party) and neutral (not favoring any particular result). How can the mediator seek to "balance bargaining power" and also remain "impartial" and "neutral?"

The answer is that the mediator should do everything in his or her power to capacitate each mediating party and, having done so, must ask himself or herself the question of whether each mediating party individually (with any desired legal or other support) has sufficient capacity to effectively represent his or her interests in the specific mediation. If the answer to this question is "yes," then the mediation may proceed. If the answer is "no," then the mediation should not proceed. "Balancing bargaining power" has no place in mediation. Determining whether each participant can effectively represent his or her interests is, however, at the heart of the mediation process. 

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