Power Imbalance In Mediation: Strategies For Ensuring Procedural Fairness

Understanding Mediation

When a dispute is raised, there are different measures that can be resorted to resolve such a dispute. This predominantly covers litigation and Alternative Dispute Resolution (ADR) mechanisms like mediation, arbitration, and conciliation. In particular, mediation has become quite an effective mechanism for ADR. There has been a noted boom in the use of mediation across the globe, particularly in nations like Australia, Canada, US, Europe and India. Mediation is deemed as an efficient, cheap and flexible mode, which gives the parties features like confidentiality, the autonomy of parties, and the mediator's neutrality. Mediation takes place behind closed doors ensuring privacy in the procedure. Thus, what takes place between these doors is only known to the disputing parties and the mediator. This brings with it, the possibility of one party dominating the other party during the entire process of mediation. There can be no surety regarding the agreements attained from such discussion being equitable and just. Along these lines, it cannot be ensured that mediation offered the parties the same procedural fairness as is present in the cases of litigation.

There are high chances of mediation not following procedural fairness due to the power imbalance it manifests. An example of this can be seen in a mediation process, which involves a matrimonial dispute between a husband and wife, or one between the employer and employee, or one covering a dispute between a large and small company. In each of these cases, there is some sort of power balance as one is a dominating party and the other is the weaker party. Owing to such a power imbalance, mediation poses a key challenge with regard to the effectiveness of the ADR procedure. The criticism of mediation is that it allows the power party to attain their maligned objectives by resorting to this form, instead of going to a court, which would ensure procedural fairness. Yet, there are contentions made where such a power imbalance can be addressed properly and that the mediator plays a crucial role in this regard. This requires the adoption of different strategies and tactics on part of the mediator.

In the following parts, an attempt has been made to understand the interplay of power imbalance in mediation and the manner in which it can be dealt with to ensure that mediation can bring procedural fairness to the dispute resolution process.

Mediation, in theory, and practice, refers to the amicable and alternative mechanism for resolving any dispute. In mediation, there is a neutral third party, or the mediator, who is approached by the disputing parties. The role of the mediator is to ensure that the dispute between the disputing parties is resolved and that a negotiated settlement is attained. The decision of the mediator is not binding on parties and the decision is not imposed on them. Rather, the mediator tries to persuade and facilitate the disputing parties so that they can get to a position where they have an amicable understanding. This helps in diffusing the issue at hand, and also results in facilitated settlement. The mediator is able to get to such a situation by helping the parties develop different options, explore different alternatives, and then make an attempt to reach an agreement. There is no determinative or advisory role played by the mediator and can only determine the process so as to get to a resolution.

Systematic Disadvantage of Mediation

Mediation can rely upon the basis of a voluntary discussion, subject to an existing agreement, or the basis of a court order. In this case, it is important to clarify that the term alternative is used with regard to the mediation process as the parties mutually agree to resorting to this technique of dispute resolution, rather than opting to resolve it through a court battle, making it an alternative of litigation. Apart from this, this process covers a variegated yet structured procedure whereby certain elements are set as the theme of mediation. These elements are creative or unique solutions, neutrality, voluntariness, confidentiality, and empowerment. In order to ensure that the attained solution was impartially mediated, there is a need to ensure that these five elements are not dispensed off. It is these very principles or elements, which allow the disputing parties to get a sense of security regarding the proceedings of mediation. Where any of the principles or elements are missing, the result that is attained from the adoption of mediation principles cannot be deemed as one based on the impartial or fair procedure. Thus, the parties resort to mediation basis of these features.

The parties would voluntarily opt for mediation when they have the firm belief that the mediation process would be confidential throughout the proceedings. Further, the things that happen during this process would not be used in any proceedings save for this, not even in the legal proceedings. Apart from this, mediation would only be resorted to when the mediator ensures that they would be impartial and neutral in every situation. There is a need to ensure that the parties feel empowered in the context of the process controls when opting for mediation. Lastly, there is a need to make certain that the parties would facilitate this process by helping out the mediator, so as to enable the mediator in carving out unique and creative solutions.

The traditional dispute resolution mechanism has been criticized for performing miserably in the context of delivering justice to the people in an effective, efficient and timely manner. This is true for litigation, court system and adjudication procedures. The reason for this is the courts are packed with a plethora of litigations. It is stated that there is a docket explosion of sorts in the context of the fear of the collapse of the judicial system. The frustrations and disenchantments are visible, in all the legal systems, against the present-day justice delivery, across the globe. The challenges and grim scenario presented by the litigations and such traditional dispute resolution mechanisms have made a strong case for mediation, as well as, for the other forms of ADR, in any legal system. Within this context, there is a vigorous push for mediation in varied justification, and a call has been made for bringing a shift in legislative and judicial policy.

Through, the shortcomings and limitations of the mediation process have been criticized by scholars. This is based on the fact that there is an absence of formal procedure in mediation, along with no certainty of the results. The other points of criticism are made in sense of the lack of guarantee regarding confidentiality being upheld, and the mediator is impartial. Apart from this, mediation can be weakened where there are only one of the parties that want to resort to mediation. Furthermore, where the court makes it obligatory for resorting to mediation, it undermines the voluntariness of the party. This raises the question regarding mediation being systematically disadvantageous. However, if the criticized points were carefully analysed, one would note that the shortcomings stated above are applicable to all forms of dispute resolution techniques, including adjudication. However, what makes mediation favourable is the fact that the advantages offered by it do outweigh the disadvantages of this process. It is argued that the vested interest does not appreciate mediation being resorted to for dispute resolution techniques. This is because it would result in the undermining of power, earning and prestige that is associated, in general, with the court adjudications. Hence, the lawyers could deem mediation as a threat to their earnings. This could also be seen as a thing that corrodes the judicial authority of the judgments, leading to the debate regarding the efficiency of mediation, continuing.

Power Imbalance

Power is deemed as the ability to influence any person in a specific desired manner. It is also deemed as the ability to produce the desired results, or the ability to bring a change in the way is desired for a relation. Based on the definition of power, power imbalance can be deemed as the unequal or skewed distribution of these abilities in an individual. The imbalance of power is the raw and harsh reality of the human society and is experienced by everyone on a routine basis in his or her daily lives.

When it comes to mediation, one cannot rule out power imbalance. Rather, the power imbalance is something that is likely to happen in the mediation process due to the informal settings in which it takes place. The mediation covered power imbalance can be presented in a different subtle manner. As an illustration of this, one can imagine a situation where one of the disputing parties has an upper hand in the negotiation's information, skills and knowledge. There could be a situation where a party has an upper hand in bargaining power in comparison to the other party; a situation where one party has more individuals on its side; and a situation where one party holds a higher status in society. Apart from this, this can happen in a situation where a party is women of a conservative society; a situation where one is a small company and the other is a big one; and a situation where the party is merely an employee of a big company. This could happen in such a case as well, where the party is uneducated or illiterate or is not technically sound to understand the mediation process, and could also entail disparity basis the age of the parties. These examples are stated above in the context of a list showing power imbalance situations in mediation is not exhaustive. This is because there are ranges of formal, informal, political, legal, economic, social, and domestic relations between different parties.

The proponents of mediation point out the presence of power imbalance in the context of the adjudicatory procedures as well, as they're also the situation is present in which one party is invariably put up against the coercive and vast power of the other party, which could be a state or its machinery. However, these proponents forget about the fact that with a legally well structure and formal mechanism, the formal means are present for minimisation of a court adjudication risk of power imbalance. Apart from this, the court has the inherent power of invoking its power to ensure that the actual or a possible miscarriage of justice does not take place. Furthermore, the court system brings forth the other legal proceedings to the likes as revision, review and appeal, among the others, that can be used in case the parties feel that there has been a major cause of impartiality in justice, stemming from a power imbalance.

Thus, to state that power imbalance is only restricted to mediation is not an accurate thing. The only problem is that it does not offer similar safety guards as are present in court adjudications. The proponents who refuse to accept this become the point of concern. With proper attention being given to the problems that are inherent to the mediation, which majorly stem from the power imbalance and which comes with this form in reality, ultimately sheds light on the path that can be adopted by the theorists so as to eliminate or minimize (at the very least), this issue, in order to make the mediation process more acceptable and effective.  

In addition to this, when a comparison of mediation is drawn with adjudication in the context of power imbalance, there is a need to acknowledge the fact that the power imbalance that takes place in mediation would not be easily noticeable due to the subtlety it has. The same can be reflected in a scenario in which the party has a substantial skill set of negotiation techniques, which could influence the entire mediation process, along with the outcome of this process, as one of the parties has a better positioning arising from them being a skilled negotiator.  This is specifically a problem where the other party in the mediation agreed to this process without being aware of the skill set of the first party. In such a case, they cannot do much with the resulting award as it was born from a disadvantageous position of the other party. Such a party would have steered clear of mediation where they had been aware of such a skill set. This would raise the possibility of the disadvantageous party staying entirely dissatisfied with this process and would also lose faith in the context of this process. This puts the mediation process in a bad light. Mediation can be seen as a neutral procedure only when the disputing parties are satisfied with the settlement attained through this process. The worst part is that when power imbalance results in dissatisfaction with the mediation process, there are no further remedial actions that can be resorted to, by the parties, which is possible in cases of court adjudications. This makes it crucial to deal with the power imbalance presented in the mediation system.

When the mediation process is adopted in different business and commercial disputes negotiations, there is often a sense of lack of equilibrium that comes in the process due to the status of the disputing parties. In order to understand this in a better way, reference can be made to some hypothetical or simulated scenarios.

The first hypothetical scenario is of a small local enterprise and that of a large company, where the parties were facing a contractual dispute related to the efficient distribution of resources by the small enterprise. The large company kept on insisting on the pre-negotiated structure of pricing that was denied by the small company due to it being highly distorted. Both the companies resort to mediation to resolve the matter. In the mediation process, the representatives of the large company outnumbered that of the small company, resulting in the high influence that the big company had. The agreed solution to the dispute could not be attained from the undertaken mediation and the small company had to agree with the price structure presented and insisted by the big company. Later on, the small company referred to the process as being vitiated owing to the difference in the number of representatives. The claim could be raised basis the pressure and coercion tactics resorted by the big company resulting in skewed outcomes. Hence, the lack of balance of power resulted in the dispute between the two companies being unfair and unjust.

 A similar situation can be assumed for the power struggle between the company and its employees over a possible wage dispute. An employee is a single person who could end up being dominated by the company, due to its sheer size and legal team that backs up the company. The employee could also face a threat of job loss or similar drawbacks where they do not agree to back out and where they decide to challenge the decision of the company. The situation can be changed where the situation entails the shareholders dominating the company.

Now that power imbalance has been established in the mediation process, there is a need to understand if the same can be dealt with. Here, it becomes crucial to mention that there cannot be a cent per cent elimination of power imbalance from this process or in any other dispute resolution form. However, the risks associated with it, along with the threats presented here, can make the mediation process a very daunting task. Thus, it becomes crucial to work in a manner that this risk can be minimized. The first step in this regard is to recognize that there is a power imbalance in the mediation process. The opponents of mediation have to ensure that this problem is properly addressed. The mediators play a crucial role here, as they have to make the parties aware of the possibility of power imbalance, once they have considered the specific or overall scenario of the mediation procedure. Thus, the mediator has to ensure that the parties are allowed a chance of making fully informed decisions with regard to the mediation process. Apart from this, where required, the mediator has to undertake private talks with the parties so as to ensure that the issue of power imbalance is dealt with. This would allow the parties to undertake a situational analysis so as to make a decision on the future course of action.

In one of the recent researches, it was shown that the focus on perceptions of procedural justice for any process is crucial. Where a person favours a process that allows them a chance of controlling the selection and development of information, it would form a base for solving the dispute. The significance here is on the control over the resolution development to bring the theme of procedural justice into play. The research has helped in showing that the perception of procedural justice is affected by the subjective and objective features of the procedure to a large extent. This is because of the feeling of respect and status, which is inferred from a person, once they feel that they are properly listened to, in the mediation process. The interactions with the ombuds staff, in the informal dispute resolution context, did have a strong influence on the procedural perceptions. There has been emphasis by the scholars on the value of a third-party training for carrying the process in a way, which depicts thoughtfulness, neutrality, and consideration regarding the views of the ones who have the capacity of affecting the procedure's outcome.

The theme of ensuring that the mediation process is successful requires the parties to be granted a voice. This is because when a party feels they have the opportunity of telling their side of the story, in the choice of their words, they would deem the process just due to the perceived fairness of this process. Thus, the mediator has to ensure that the parties feel that they have a degree of control over the info that forms the base of the dispute resolution. Apart from this, there is a need to ensure that the parties have an opportunity to explain their experience, without any kind of dominance, for the mediation process to have elements of procedural justice.

Conclusion

Thus, it can be concluded that mediation is an important mode of resolving any dispute. There are various advantages offered by mediation that allow the parties to resort to this mode of dispute resolution. Mediation allows a chance of solving the dispute in a private and confidential manner. However, there are several drawbacks of resorting to mediation, in sense of lack of conclusiveness regarding the final award, and power imbalance. When power imbalance is present in the mediation process, the procedural fairness of a process, which is otherwise present in litigations undertaken in a courtroom, is absent. This means that the final result that is attained by undertaking this process of mediation is not one that can be labelled as fair or just. The power imbalance in mediation is present because one of the parties holds a dominant position and the other holds a weaker position. This could be due to the role of the parties, their skill set, or any other pertinent factor establishing the dominance of one party. When the parties reach a dispute settlement award, which is charred by a power imbalance, the entire theme of undertaking mediation, fails.

In this regard, it is crucial to mention that it is not just the mediation process, which has to face the problem of power imbalance. The other dispute resolution methods, including the adjudicating process, too have scenarios of power imbalance. However, the modes like adjudication by courts come with other powers, which are not present in the mediation process. This makes it crucial for the mediator to ensure that the mediation process is free from a power imbalance. Where such a scenario is noted by the mediator, it becomes important for them to make the parties aware of it, which could also involve making one party aware of such a power imbalance in a private chat. All this is done to ensure that the mediation process results in just and fair results for the parties, where they are effectively able to resolve their disputes, in an amicable manner. However, it is not wrong to state that medication fails to provide procedural justice where the parties have a major imbalance of power between them. This was reflected through the stimulated scenarios discussed in the previous segments. Any element of deceit by one party, to take advantage of their dominating parameter, thus beats the entire process of mediation, from reaching its objective of effective dispute resolution.

Blake S, Sime S, and Browne J, A Practical Approach To Alternative Dispute Resolution (4th edn, Oxford University Press 2016)

Gore N, Handbook On Mediation (OrangeBooks Publication 2021)

Leider R, Power Of Purpose, The: Find Meaning, Live Longer, Better (Berrett-Koehler 2015)

Meredith K, Managing Power In Dispute Resolution (Independently Published 2020)

Stitt A, Mediation: A Practical Guide For Lawyers (2nd edn, Routledge 2016)

Arora S, Arora G, and Arora Y, 'Evolution And Growth Of Alternative Dispute Resolution In India With Special Emphasis On Mediation' (2021) 2 Indian Journal of Law and Legal Research <https://hcommons.org/deposits/objects/hc:39034/datastreams/CONTENT/content> accessed 10 April 2022

Creutzfeldt N, and Bradford B, 'Dispute Resolution Outside Of Courts: Procedural Justice And Decision Acceptance Among Users Of Ombuds Services In The UK' (2016) 50 Law & Society Review

Douglas K, and Hurley J, 'The Potential Of Procedural Justice In Mediation: A Study Into Mediators Understandings' [2017] Bond Law Review

'Inside Mediation. Book Review: How Mediation Works: Resolving Conflict Through Talk, By Angela Cora Garcia, (2019) UK, Cambridge University Press' (2022) 7 Journal of Mediation & Applied Conflict Analysis

Johnstone L, and Boyle M, 'The Power Threat Meaning Framework: An Alternative Nondiagnostic Conceptual System' [2018] Journal of Humanistic Psychology

Kline R, 'The Mediation Myth' (2015) 37 Basic and Applied Social Psychology

Lee J, and Lim M, Contemporary Issues In Mediation (3rd edn, World Scientific Publishing Company Pte Limited 2019)

McGowan D, 'Reframing The Mediation Debate In Irish All-Issues Divorce Disputes: From Mediation Vs. Litigation To Mediation And Litigation' (2018) 40 Journal of Social Welfare and Family Law

McKenzie D, 'The Role Of Mediation In Resolving Workplace Relationship Conflict' (2015) 39 International Journal of Law and Psychiatry

Menkel-Meadow C, 'Mediation, Arbitration, And Alternative Dispute Resolution (ADR)' (2015) https://ssrn.com/abstract=2608140 UC Irvine School of Law Research Paper No. 2015-59

Qtaishat A, 'Power Imbalances In Mediation' (2018) 14 Asian Social Science

Van de Graaf C, 'Procedural Justice Perceptions In The Mediation Of Discrimination Reports By A National Equality Body' (2020) 20 International Journal of Discrimination and the Law

Jordaan B, 'Power Imbalances In Mediation: How Far Should A Mediator Go? Part 1' (Linkedin.com, 2020) <https://www.linkedin.com/pulse/power-imbalances-mediation-how-far-should-mediator-go-barney-jordaan> accessed 10 April 2022

Narine A, 'Power Imbalances In Mediation' (Hnlr.org, 2022) <https://www.hnlr.org/wp-content/uploads/sites/22/Narine-Power-Imbalances-in-Mediation.pdf> accessed 10 April 2022