During my first course in mediation, I was a bit surprised to find on the Recommended Reading List a book called Impro: Improvisation and the Theatre, by Keith Johnstone. The choice seemed less peculiar when I learned that one of the teachers had first studied directing and had been a university theatre department chair before career change. Curious, I read Impro and found it an outstanding guide to other types of improvisation, such as teaching and mediation.
The most valuable lesson I learned from the book, and the teacher, was the importance of power in any discussion. One improv exercise Johnstone employed was to have two people act out a conversation following a fender bender. One of the two was told they had been driving a Mercedes, the other a Ford Fiesta. After a few minutes, the actors were told to switch cars. Despite their actual status, gender, age, or other marker, the mere naming of a car and its reversal appeared to be a decisive factor in how they acted toward each other.
During a later court terms, I decided to watch for this effect in real life, with particular attention to how power parity and power imbalances affected the mediation’s outcomes One small claims arena ripe for power imbalance is that of tenant and landlord, a common situation in the urban setting. Three examples stood out for me.. (The cases come from courts in a diverse urban metropolitan area, and were only a few miles apart.)
Case One: The property owner and the tenant, who lived in the same house, were both women of color, with Caribbean backgrounds, which made me hope that there was going to be grounds for mutual understanding. But tension between the two was high from the beginning, and its roots soon became apparent. The tenant, who was behind on her rent, was a Section 8 housing voucher recipient, while the property owner was, as she made clear, a self-made immigrant. The property owner appeared to imply that their relative stature was a mark of their moral worth, and that she had little interest in compromising with someone she felt was well beneath her. As might be expected, no agreement was reached.
Case Two: Again, the tenant lived in an apartment in the property owner’s residence, and the parties were of the same ethnicity, but opposite genders. Rent was again the issue. But the parties seemed to have a great deal in common. The property owner worked as a cleaning lady for others, and the tenant was a highway toll collector. Both observed they were losing work income by being in court. The tenant then passed a check to the property owner and said “If I give this to you right now, are we clear?” The owner agreed. Both parties were so eager to leave that the mediators had a hard time persuading them to stay long enough so that the settlement could be presented to the clerk. In a sense, it seemed as if the two had formed a new alliance against the system in which they had found themselves caught, and wanted to get free as quickly as possible.
Case Three: The parties were of the same ethnic group, again lived in the same building, and shared a common non-English language; the tenant said he required an interpreter and the case was held over for a few weeks until one could be assigned. The property owner first explained that when the tenant’s marriage had ended and he had nowhere else to live, he had allowed the tenant to stay in his house rent free for over a year. During that time, the tenant needed money, and the host had withdrawn $2,000 from the bank and loaned it to the tenant. The tenant now refused to pay him back.
The mediators then turned to the tenant and asked for his response, which was brief, as translated: “Never happen.” They tried to clarify: “He didn’t lend you money?” “No.” “You didn’t live in his house?” “No.” “Do you know him?” “No.” After conferring, the mediators saw no way forward, and said that the parties should return to court. (I hope to comment on this decision in a later piece.)
How does this story fit the power paradigm? Clearly the host was the more powerful of the two: he was a property owner, a competent English speaker (setting aside the question of whether the tenant was using the language issue as a delaying tactic), and had some, if not sufficient, evidence, as of having made a bank withdrawal. The tenant’s strategy was simple: refuse to play the game. Literature is filled with such sideways moves: Bartleby the Scrivener, who “would prefer not to” carry out any of his assigned tasks; Humpty-Dumpty, who asserts that “glory” means “there’s a nice knock-down argument” and defends his position by saying that the question is not what words mean, but “who is to be master.” In fact, the tenant’s strategy will be immediately recognizable to any parent who has heard their child adamantly refuse to admit having eaten the chocolate despite the evidence written on his or her face.
In this case, the court’s decision may well have gone against the tenant, but in non-court cases, refusal to play may indeed be a viable low-power move, producing a stalemate that amounts to a successful BATNA.
I often find myself explaining lawyers to their clients and clients to their attorneys. Here are some typical client complaints I hear about their litigator attorneys: he tells me to...By Victoria Pynchon