EXPERT INSIGHT 45 MAR 2022 | WWW.LAWYER-MONTHLY.COM onflict exists on every avenue, playground and street corner of our lives. Issues of conflict are endless. It may present itself as a clash of ideas, opinions and principles, a prenuptial agreement or a prolonged commercial litigation battle. When the conflict reaches the level of needing thirdparty intervention, mediation provides a forum in which the parties come together and negotiate an equitable, fair and reasonable solution to the issues. The mediator facilitates and guides the process through the troubled waters and eventually the parties craft an agreement they have created themselves and are therefore more likely to honour. This is mediation at its core! The value of good-faith mediation When all parties stand on relatively equal footing, regardless of the issues in conflict, mediation works seamlessly. The complexion of the process changes when power imbalances exist. In the midst of conflict, power struggles tend to take on a life of their own. Litigated or mediated issues are as diverse as our personalities. They may be marital, business, commercial, religious or social. The friction in these relationship imbalances cause mild earthquakes. They are survivable but one must be prepared. Power imbalances may be physical, emotional, sexual, racial, financial, positional, religious, political or intellectual. This brief essay does not address global or universal power imbalances in mediation. Each country is unique and diverse in its approach to conflict and power structures, applying its own cultural rules, regulations and systems of justice. In the United States and countries with similar judicial systems, mediators ought never to assume equality between contending parties. Personally, I have experienced mediations in which one party comes to the table as if they were walking into a gladiatorial arena. The mindset is ‘death to the opposition’. Use whatever weapons are available. No compromise. No prisoners. I wondered about this gladiatorial strategy when a case that had been litigated in the courts for more than ten years finally came to the mediation table. The previous costs to each party were an enormous investment of time, emotion, multiple court trials and hearings, and hundreds of thousands of dollars. It gave me anxiety just looking at the volumes of paperwork and briefings. Nearly a dozen men were at the table. I was the only woman in the room. The dispute resolved after mediating for approximately 7 hours. After the agreement was reached, an attorney approached me privately. He told me the matter had finally settled because I was present. Why? Did the battle strategy change because a woman was present? Honestly, I do not know. In my personal opinion, the imbalance of power in the room shifted when the defendant spoke his heart on the issues for the first time in 10 years. Previously, his attorney controlled the process. Attorneys, use your best judgment, but give your client the freedom to be heard. How mediators address power imbalances Financial power is a major threat when used to crush the disadvantaged. Proceeding immediately to arbitration is an option to mitigate this imbalance. This reduces the expense of depositions, constant delay tactics, briefings and more. Also, when one Mediation Amid a Power Imbalance Though mediation is intended to provide a neutral, fair environment for the resolution of disputes, it often does not begin as a level playing field. One party may hold a significant advantage in terms of finances, legal advice or more personal factors. It is the job of a competent mediator to address this imbalance, as Ann D Carey explains here with some invaluable advice for ADR specialists. C I have experienced mediations in which one party comes to the table as if they were walking into a gladiatorial arena. The mindset is ‘death to the opposition’.
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