Identifying a Power Imbalance (Part 1 of 2)

Identifying a Power Imbalance

Identifying a Power Imbalance

One of the most noticeable issues that could arise in a negotiation or mediation is an imbalance of power. Often one of the hardest issues to overcome if the neutral or the parties are not prepared, and still difficult when the neutral is prepared, an imbalance can easily throw an otherwise successful dispute resolution process. When this happens, one of the parties will leave the table feeling like they had to give more than they hoped to, and it can often sully the alternative dispute resolution process for the “weaker” party. It can also interfere with the ideal of the dispute resolution because it may only allow one of the parties to win. While an imbalance may not always be a threat to the mediation process, it is important to recognize when the process is threatened by the imbalance.

This pair of articles will discuss the definition and characteristics of a power imbalance and then will outline a few suggestions and strategies to help you or your clients deal with an imbalance of power in a way that empowers all of the parties to negotiate and leave the mediation empowered. Before getting into the strategies, there is a need to understand what an imbalance of power is, the types of power that one party may be wielding against the other, and the signs that an imbalance may be at play. This first article will discuss these topics.

Defining an Imbalance:

An imbalance of power quite simply means that the parties that are participating have different sources and levels of power. If everything between the parties is equal, there is no imbalance; however, in many situations that have gone to dispute resolution will likely involve some sort of imbalance. Sometimes, a power imbalance depends on the situation of the parties, and other times, the imbalance will be present between the parties no matter the situation at hand. There can also be differences in power in the relationship between the parties, or the imbalance may be felt in the communication that the parties share, with one party being able to control the communication.

There are a number of factors that can influence the power that one person has in a situation. The influence can shift with things like physical characteristics to one of the parties’ position in society. These factors include:

  • Size: A person that is much larger or taller than another person can often demand the attention of the entire room. This can be especially true if the parties are not seated, and can be exaggerated if the larger person is consistently standing while the smaller person is not.
  • Age: Age is often a factor when determining power. If one party is younger than the other, this can be exploited by the older party. Stating that the younger has less experience. However, in certain situations, a younger person may wield the power, having more knowledge of the current industry or with technology.
  • Gender: Depending on the situation, a male or a female may have a more power based on their gender and the topic of discussion.
  • Race: In many situations, white people will have more power than Black, Indigenous, People of Color based on the current systems of power in the United States, so this factor is one to which neutrals should pay particular attention.
  • Knowledge: If one of the parties is more knowledgeable about the topic, they may use that knowledge to intimidate the other party.
  • Experience: Experience is similar to knowledge, but if one of the parties has more experience with the topic at hand or with the mediation or negotiation process in general, that may be used to intimidate the other party.
  • Position: A person’s position within the situation may influence their power. In workplace issues, a boss’s position can give them power only because they hold power over the employee’s daily life. Similarly, a landlord will usually have more power because they own the property and have the ability to remove the tenant from the home.

This list is not exhaustive, and there are other factors that will influence the power in a mediation. Watching for these factors before heading into a mediation can help a neutral stop the imbalance of power from fully developing and stop one party from intimidating the other.

Types of Power:

In addition to understanding the factors that can play into power, it can be beneficial to understand the types of power that may come up. The types of power depend on what the person in power is able to give or hold over the person without power. Several types of power include:

  • Reward-Based: Power is reward-based when one of the parties has the ability to reward the other party through the negotiation or in daily life. This can usually be seen in parent-child or student-teacher relationships.
  • Information- or Expertise-Based: This power comes from one of the parties knowing more about a topic or having an expertise in a topic. This will give the person with the knowledge an advantage.
  • Legitimacy-Based: This power comes from a formal position that gives one party power over another and exists because of the position that the person is in. This is similar to the positional factor listed above. This would be the power of a manager to determine the work that an employee does.
  • Connection-Based: This power exists based on one’s connections. This typically involves the person’s connections that give resources or introductions. An example of this would be a florist’s ability to connect a customer with a baker for their wedding.
  • Coercion-Based: This is the ability to punish the other for their actions. This can be a boss-employee or a parent-child relationship. It would be the opposite of reward-based power; however, the same person will usually have both kinds of power. Sometimes though, someone may have the ability to reward but not punish—like some nannies or supervisors—or vice versa.
  • Reverence-Based: This type of power exists when a person’s ability to be liked creates power. This can also be called influence, and depends more heavily on the way people react to the person rather than the person’s position or knowledge.

By identifying the type of power at play, a skilled mediator may use tactics to balance that power and keep the parties negotiating for the best possible deal for both parties.

Characteristics of a Power Imbalance:

Identifying the potential for a power imbalance and knowing the types of power that may be at play are crucial steps in determining the best cause of action in a mediation. However, if a mediator is not ready to recognize the imbalance when it starts to affect the mediation, it could still run rampant and derail the mediation or negotiation process. Some signs to look for that may indicate that an imbalance of power is affecting negations are:

  • Expectancy: This sign happens when one party expects the other to give them something just because that is how it should be. This is often acknowledged by one of the parties treating offers as the only acceptable outcome or treating counteroffers as if they are unreasonable because they need to give up something to comply.
  • Demand and Response: When one party makes demands and the other responds immediately and does not assert their own position, there is likely a power imbalance at play. This can sometimes start as one party asking for small favors, such as getting the other a glass of water or looking something up. It is important to notice when one party asserts their power over the other through small asks, because it will eventually morph into their power taking over the entire negotiation.
  • Traps: This type of imbalance results when one party has control over something that the other one wants. While use of this power can be a tactic to help gain a position, when someone can use that power to control the entire negotiation, it can be harmful to the other party and cause them to give up more than they had intended.
  • Outside Talk: When one of the parties references things that they have talked about outside of the mediation or says something about how they should know how things are outside, this can be a signal that this party is taking advantages of power present outside of the current negotiation. It can also be a threat to the weaker party to comply with the request or face deeper repercussions outside of the dispute resolution process.
  • Dismissal: When one party approaches the negotiation with a mindset that the negotiation is not worth their time or is an inconvenience, especially when the other party has a large stake in the negotiation, this can signal a power imbalance. By making the outcome of the negotiation trivial, that party is signaling that they are wielding more power and can survive regardless of the outcome, unlike the other party.

When a power imbalance crops in dispute resolution, the neutral has an important role in making sure that the parties are able to proceed without the imbalance influencing the situation. This is why recognizing the potential for a power imbalance, identifying where the power may be coming from, and watching for signals that the imbalance is going affecting the situation is important for a neutral to understand. By identifying and spotting the issue early on, the neutral will be able to influence the negotiations going forward and encourage the parties toward a balanced and fair resolution. The other article in this pair will discuss the issues that an imbalance can cause in mediation and the strategies to make this shift once the neutral realizes that power imbalances are at play.

Continued in Part 2… (stay tuned)

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Emily Holland
Emily Holland is a Contributing Editor at ADR Times. She is also a recent graduate of Pepperdine Caruso Law. While in law school, Emily served as an executive editor on the Pepperdine Dispute Resolution Law Journal and had the opportunity to learn about ADR from world-class professors of the Straus Institute for Dispute Resolution. She calls the city of Minneapolis home, and spends her free time running through the parks or searching for the best matcha from local coffee shops. Emily can be reached via email at [email protected]

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