Lawyer Monthly - March 2022

EXPERT INSIGHT 46 WWW.LAWYER-MONTHLY.COM | MAR 2022 party is outnumbered, male and female co-mediators provide a positive balance. Power imbalances change the complexion of the process. Power can ease the tensions or complicate the resolution. The weapons used to wield power vary depending on societal or cultural backgrounds, the simplicity or complexity of the issues, and what is at risk of being won or lost. The more significant the potential loss, or one party’s ‘need’ to win, the greater the threat of inequality and an unbalanced resolution. Mediators listen, observe and manage the imbalances according to the threat level. Breach of contract and commercial issues may be mediated after proper evaluation of the unique risks and opportunities. In my experience, the option has always been med/ arb. If mediation fails, move on to arbitration. When commercial issues reach the international level and there is an evident power imbalance, in my opinion, mediation is not the best conflict resolution forum. The UNCITRAL Model Law on International Commercial Arbitration (1985) provides a sophisticated forum for addressing commercial arbitration in which to resolve business disputes on a global level. On the level of a world forum, experienced, qualified, wellinformed negotiators or arbitrators are the best option. When undertaking a legal role as a lawyer or arbitrator in another jurisdiction, verify that you are in compliance with the applicable jurisdictional rules as well as those under which you are licensed. The risk of ignoring this detail may constitute the unauthorised practice of law under your home jurisdiction and/ or a violation of the rules of the host jurisdiction. If in fact you are undertaking the legal representation of a party in any form of alternative dispute resolution (ADR), it is always wise to be familiar with the laws and ethics of the relevant jurisdiction and check the ABA Model Rule 5.5. As mediators, in light of power imbalances, we strive to provide an even-handed process and equality between the parties. Being informed of potential power struggles requires information, awareness, and sensitivity to the ability of one party to intimidate, coerce, control, threaten or silence the other. Best practices dictate, at a minimum, advance questionnaires or screening for abusive behaviours or physical, emotional, spiritual or financial control of one party over the other. Look for psychological disorders, bankruptcy, unemployment, history of violence, retraining orders and weapons. Look for any facts that have contributed to the rift between the parties. Employment claims tend to be especially rife with power imbalances that must be taken into consideration. The employer almost always has a financial advantage and a stable of in-house and local lawyers to come to overpower the employee. Often, the employee is left to self-protect even after losing the position or office. Even when a union is involved, sometimes it helps facilitate the discussions with the employee and sometimes it simply complicates the matter. I have experienced a long list of challenges in this area and would recommend plaintiffs choose a lawyer who is experienced and dedicated to fight for justice. A mediation or arbitration is a good choice in these cases; it reduces the gladiatorial games. As mediators, in light of power imbalances, we strive to provide an even-handed process and equality between the parties.

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