Traditionally, as we all know, mediators were identified as neutral third parties and mediation itself was defined as involving the intervention of a third party neutral. Neutrality has been widely criticised to the extent that it no longer appears as a defining feature or even an ethical requirement in the National Mediation Accreditation Standards (NMAS). An early construction of the idea of neutrality was that it meant mediators exercised no power in mediation.
We have come along way from this early view about power in mediation. Scholarly critique and practitioners’ reflections have debunked the idea that mediators have no power. Questions remain however about the sources of mediator power and the proper limits of its exercise. Traditionally mediators attributed power to the process of mediation itself, and constructed the parties’ voluntary consent to engaging in the process as giving them authority (legitimised power) to control that process. This approach was consistent with constructing mediators as neutral as to the content of mediation but in control of the process.
The distinction between process and content in mediation no longer appears in the NMAS. This change is consistent with the development of ‘newer’ models of mediation, namely, narrative and transformative models, extending the traditional problem-solving (facilitative and evaluative) models. Postmodern constructions of power are more consistent with these later models. At the same time facilitative and evaluative models are the most commonly practised, with practitioners’ sometimes incorporating ‘aspects’ of narrative and transformative approaches.
Authority to mediate is increasingly mandated by legislation. But the scope of mediator power is only loosely delineated in the broad definitions of mediation itself. Questions about the mediator’s role in ensuring substantive fairness in addition to procedural fairness raise further questions about the scope of mediator power and its proper exercise. Questions of mediator ethics equally pose questions about how much power mediators should have and how they should exercise it.
What is the basis of mediator power? What is its proper scope? How should it be constrained and directed?
What are your thoughts?
Some food for thought (a few selected,but not an exhaustive list of relevant,references):
Astor, H. 2005, “Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner”, Australasian Dispute Resolution Journal, Vol. 16, pp. 30-9.
Bagshaw, D. 2003, “Language, Power and Knowledge”, Australasian Dispute Resolution Journal, Vol. 14, pp. 130-41.
Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review, Vol. 14, pp. 285-318.
Bayliss, C. and Carroll, R. 2005, “Power Issues in Mediation”, ADR Bulletin, Vol. 7, no. 8, pp. 134-38.
Field, R. 1996, “Mediation and the Art of Power (Im)balancing”, QUT Law and Justice Journal, Vol. 12, pp. 264-73.
Field, R. 2000, “Neutrality and Power: Myths and Reality”, The ADR Bulletin, Vol. 3, No. 1, pp. 16-20.
Mayer, B. 1987, “The Dynamics of Power in Mediation”, Mediation Quarterly, Vol. 16, pp. 75-86.
Wade, J. 1994, “Forms of Power in Family Mediation and Negotiation”, Australian Journal of Family Law, Vol. 6, pp. 40-57.
The Australian Dispute Resolution Research Network 
This is a great time to be considering issues of power which are relevant for everyone who comes to the mediation table – mediators, advocates, parties and partisan supporters.
Your article sent me back to first principles which are beautifully examined by Roger Fisher in his article Negotiating Power – Getting and Using Influence The American Behavioral ScientistNov/Dec 1983 pp149-166. Fisher was defending ‘Getting to Yes’ and responding to the criticism that it failed to deal adequately with power. Thank you for prompting this reflection on the journey that our thinking about power has taken – and is still taking.
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The post raises several different questions, all important:
1 Does a mediator have power?
2 What is the source of the mediator’s power?
3 What sort of power does a mediator have? Does it depend on the source of the power?
4 Is the mediator’s power confined to controlling the mediation process, or does it extend to affecting the substantive outcome of the mediation?
5 Must the mediator’s power to control the mediation process be exercised so as to produce procedural fairness? Does ‘procedural fairness’ have any meaning within a mediation process in which the mediator does not decide substantive matters?
6 If the mediator has power to affect the substantive outcome of the mediation, does the mediator have an obligation to attempt to ensure that the mediation produces a substantively fair result?
7 Is one of the circumstances in which the mediator should exercise power to affect the substantive outcome of the mediation where the parties to the mediation have unequal power, i.e., should the mediator use her/his power to attempt to correct an imbalance of power between the parties?
Here are my views on the last question:
1 Types of party power in mediation:
1.1 Financial power: Big Bank v. Freddie Farmer: huge financial resources vs. not very much at all.
1.2 Forensic power: Silk, junior, partner and solicitor vs. suburban practitioner or no lawyer at all.
1.3 Substantive power: Party A’s case is strong to overwhelming. Party B’s case is weak to hopeless.
1.4 Negotiating power: Party A is a sophisticated and experienced negotiator. Party B is an first-time participant in mediation. Party A has invested significant resources in preparing for the mediation. Party B has skimped on preparation in the hope of an early settlement. Party A is realistic about its prospects. Party B is wildly optimistic about its prospects. Party A does all the talking. Party B is interrupted/cut short.
1.5 Moral power: Party A’s position is in the public interest/promotes sobriety/will slow global warming. Party B’s position cheats widows and orphans/promotes tax evasion/threatens old-growth forests.
1.6 Gender power: Women do not ask for as much as men. (See Babcock & Laschever, “Women Don’t Ask: Negotiation and the Gender Divide”, Princeton University Press 2003)
2 The relevance of party power in mediation:
2.1 Power is relative. If two Big Banks face off against each other, there probably will not be much disparity in power. If both parties to the dispute are female, there is no disparity in gender power.
2.2 Power in mediation is the ability to get what you want from the other party. In the context of mediation, this probably means getting the other party to sign the settlement agreement that you want.
2.3 In mediation, the other party always has the right to end the mediation without agreeing to anything. Given a large disparity of power between the parties, however, this may not be a realistic alternative.
3 Can the mediator know where party power lies in mediation?
3.1 The mediator has limited knowledge of the facts.
3.2 The mediator has limited knowledge of the relevant law.
3.3 The mediator has limited knowledge of the parties’ interests and needs.
3.4 Financial power: Big Bank has to make a profit. Throwing good money after bad makes no more sense for Big Bank than for Freddie Farmer. Having financial power does not necessarily mean that it will be exercised.
3.5 Forensic power: There are good senior counsel and not-so-good senior counsel. There are some brilliant suburban practitioners. And the forum is a mediation, not an adjudication.
3.6 Substantive power: Can the mediator, often with very limited information, know the respective strengths of the parties’ cases?
3.7 Negotiating power: This is partly within the mediator’s control.
3.8 Moral power: Opinons on moral issues differ.
4 Party power is not static; it can and does move during a mediation:
4.1 Consider a farm debt mediation where the farm has been mortgaged to Big Bank and the mortgage has not been repaid.
4.2 As long as the value of the farm exceeds the amount borrowed plus accrued interest and costs, Big Bank can be ruthless and will probably negotiate only about how much time the farmer has to repay the mortgage – failing which it will padlock the farm gate and put a “Mortgagee Sale” sign on it.
4.3 In this situation, there is no doubt where power lies.
4.4 If, however, it transpires that the value of the farm is less than the amount secured over it, the power relationship is quite different.
4.5 The bank’s legal powers are the same, but exercising them will result in the bank’s recovering only part of what it is owed. The farmer’s personal covenant to repay the mortgage probably is worthless. A large amount may have to be written off. Heads may roll in the Rural Lending Department of Big Bank.
4.6 In the second scenario, the bank may become interested in all sorts of settlements that:
4.6.1 Require the willing participation of the farmer;
4.6.2 Require the bank (at least for now) to forego recovery;
4.6.3 Require the bank to lend more money; and
4.6.4 In effect, require a joint venture between Big Bank and the farmer.
4.7 Possibilities include:
4.7.1 Subdivision of the farm for sale as hobby farms;
4.7.2 Novel crops with high value like blueberries; and
4.7.3 Investing in irrigation, pasture improvement, new barns, new dams and new fencing to improve the productivity and value of the farm.
4.8 In the second scenario, the farmer’s weakness has become a source of power.
4.9 Consider a simpler example: the mediation of a personal injury claim. The plaintiff, supported by comprehensive and credible medical reports, claims to have an incapacitating and permanent back injury sustained at work. Liability is not in dispute. The plaintiff is in an obviously powerful position.
4.10 Then the defendant insurer produces a surveillance video, showing the plaintiff lifting weights at a gym. Power shifts instantly to the defendant. When the plaintiff establishes that the video in fact shows his twin brother, not himself, power instantly shifts back to the plaintiff.
5 The competing theories about party power in mediation:
Theory One: The mediator has a duty to balance the parties’ power
5.1 One party to a mediation may be significantly more powerful than the other.
5.2 A significant power difference between the parties may lead to one party dominating the process.
5.3 A significant power difference between the parties may lead to a settlement that largely favours the more powerful party’s needs and interests. This is unfair. At the extreme, the result is coerced.
5.4 One of the functions of mediation is to redress unequal bargaining power.
5.5 The mediator therefore has a duty to the process and/or to the parties to balance the parties’ power in the mediation.
Theory Two: The mediator has a duty NOT to balance the parties’ power
5.6 Mediation theory and most mediation agreements require the mediator to be neutral and impartial towards the parties.
5.7 “Neutrality” means that the mediator is disinterested in the outcome of the dispute.
5.8 “Impartiality” means that the mediator treats the parties in an equal and even-handed way.
5.9 Disparities in bargaining power are a fact of life inside and outside the mediation.
5.10 If the mediator were to take steps to lessen the power of the more powerful party or to increase the power of the less powerful party (or both), in order to affect the outcome of the mediation, he or she would not be acting in a neutral or an impartial way. (If the mediator frankly acknowledged to the parties that his or her aim was to level up the parties in terms of power, most parties would object. Why would they pay a mediator to dissipate advantages that they view as legitimate? Those advantages can include: being intelligent; being wealthy; having a strong case; having (at substantial cost) good lawyers; being (at substantial cost) well-prepared for the mediation.)
5.11 The mediator therefore has a duty to the process and/or to the parties not to balance the parties’ power in the mediation.
6 Resolving the conflict between the two approaches:
6.1 For the reasons in paragraphs 3 and 4 above (i.e., the mediator probably does not know the relative power of the parties and it might shift anyway), the mediator probably has no realistic alternative to taking the parties as he or she finds them.
6.2 That does not mean the mediator has to LEAVE the parties in the position in which he or she finds them.
6.3 Reality testingof the parties’ positions in private by the mediator may significantly affect their approach. Likewise, reality testing about the durability or enforceability of proposed settlement agreements may affect their approach.
6.4 Is there a contradiction between taking the parties as you find them and attempting to shift the parties’ positions towards each other so they can settle their dispute?
6.5 There is no contradiction: It is the hallmark of legitimate reality testing that a mediator does not upset existing power imbalances by (for example) providing a party with legal knowledge that the party has not invested in (“There’s a recent High Court decision on limitations that is right on point and which means that the other party is out of time.”).
6.6 It is the hallmark of illegitimate reality testing that it does upset existing power imbalances. It is illegitimate because it is not neutral or impartial behaviour. Because the mediator is not acting in a neutral and impartial way, he or she risks losing credibility/losing influence/being fired.
6.7 Instead, the mediator should accept existing power imbalances and assist each party – given the imbalances – to analyse the strengths and weaknesses of its position and of the other side’s position. Given this, the mediator can also help a party analyse whether offers received or contemplated are better or worse than a party’s BATNA.
6.8 Women tend to value relationships more than men and thus, for fear of damaging a relationship between the parties, a woman may be inclined to ask for less (or offer to pay more) than a man who has the same BATNA. (“Women Don’t Ask: Negotiation and the Gender Divide”; see paragraph 1.6 above). The mediator can help a female party to understand that this is what she is doing. The mediator thereby helps the female party understand the nature and effect of gender power. By doing so, the mediator enables the female party to decide consciously whether she values the relationship more than the outcome of the dispute, rather than making this decision unconsciously.
6.9 The mediator can assist a party to make realistic concessions, or to capitalise on a strength it has. This is not balancing power; it is recognising realities.
6.10 Viewed this way, the mediator’s task can be seen as helping each party understand what power it has and how and when it should use its power, and to understand what power the other party has and how and when it might use it. Not only is this task consistent with being neutral and impartial; it helps the parties to participate effectively in the mediation.
7 Conclusion
7.1 Viewing the mediator’s task this way means that the patient, careful, earnest mediation of disputes remains a useful and important task.
7.2 Unless the mediator embraces a vision of mediation as transformative of the parties, practising mediators should be comforted by this acknowledgment of the validity of what they do for a living.
Robert Angyal SC
9 February 2016
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