Mediation power imbalances: weighing the arguments
Nigel Dunlop
It is commonly said that power imbalances in mediation render it unfair. The image is conjured up of a hapless party being cajoled into an unfavourable settlement by a more powerful party. Better to go to court, it is said, where bullying will not be tolerated, and where a just rather than a coercive outcome will result. This popular image of what constitutes power imbalance in mediation is simplistic. It fails to take account of the many and varied types of power which may be present in any one mediation. It frequently involves inaccurate presumptions as to the existence or absence of power .1 Below is an example of power imbalances in a dispute between a separated husband and wife about the parenting of their children. Six individual power imbalances are identified. Some favour the wife, and some the husband.
Both party A and party B have the advantage of power imbalances, but it is impossible or meaningless to say which party holds the overall balance of power. One reason for this is that negotiation power cannot be easily or accurately quantified. There is no unit of measurement to apply. The extent of power is determined by crude, subjective, non-numerical assessment. Assessment relies on prediction as to what will unfold during the course of mediation. Such prediction may well be flawed. The primary reason why it is impossible or meaningless to say which party in mediation holds the overall balance of power, is that different types of power are incapable of ready comparison with each other. It is not feasible, for example, to weigh party A’s language advantage against party B’s legal representation advantage. The six types of power referred to in the above example fall into two different categories. The first four are process power imbalances. The last two are substantive power imbalances. The difference between the two categories compounds the problems associated with assessing overall power imbalances. Most often, references to power imbalances are to process imbalances. Process power imbalances are about the capacity of parties to negotiate. They determine whether or not it is fair or appropriate that mediation proceeds. That determination requires an examination of each individual process power imbalance that might be present. The mediator is required to assess