Identifying a Power Imbalance (Part 2 of 2)

Identifying a Power Imbalance

Identifying a Power Imbalance

Continued from Part 1

Balancing the Power When There is a Power Imbalance

In the first of this pair of articles, we discussed the definition of a power imbalance, identified the types of power that may be utilized against another party, and the early signs of a power imbalance. Once a neutral identifies that one of the parties has more power than the other and is using their power to make the negotiations end in their favor, it is important for the neutral to act quickly to attempt to bring the power in the negotiations into balance between the parties. This article will discuss the strategies that a neutral may implement to do so. But first, it is important to understand the dangers that leaving an imbalance unchecked may cause both within and outside the dispute resolution, because an imbalance may not be harmful unless it threatens the process.

Importance of Recognizing an Imbalance:

Chances are that most people reading through the definition of an imbalance will recognize relationships in their lives where they were in positions of power and where they were the one with less power. Most everyday relationships involve a system of power and imbalance. While some people will not lament the imbalance because they believe it is a part of life, an imbalance in power in a dispute resolution can cause issues for the parties and the mediator’s ethics. While some imbalances of power allow the correct people to bear the brunt of a fall, such as a CEO bearing responsibility for a mistake made by the company rather than an entry-level assistant, finding that one party has more power than the other in a mediation or other dispute resolution process threatens to undercut the whole of the process if not kept in check.

Issues that an Imbalance Can Cause:

Two of the most important aspects of the dispute resolution process are the neutral’s ability to remain neutral and the ability of the parties to determine the outcome of the dispute on their own terms, rather than having the court determine the outcome for them. These two aspects of a mediation or negotiation will be threatened if an imbalance makes its way into a dispute resolution procedure. Paying special attention to the ways that an imbalance is affecting these two aspects can also indicate to a mediator when they need to step in and suggest some balancing techniques. Additionally, an imbalance that does not threaten self-determination or neutrality may not need to be corrected or shifted, so understanding when these aspects are threatened will help to determine when the mediator needs to intervene.

Self-determination: Self-determination is the ability of the parties to drive the outcome of the mediation or negotiation toward their own interests. It is one of the advantages of the parties using an alternative dispute resolution process over traditional litigation. It is also one of the most affected aspects when the balance of power not balanced. An imbalance will affect self-determination when one party has options for resolution that the other does not, whether that be the result of secrets (informational imbalance) or the presence of one party over the other.

When one of the parties has the ability to use their power or influence over the other, the party without power may lose their self-determinative ability. If one party feels like they are losing their power to the other, they will also feel like they have lost the ability to fight for their position or to move the decision toward what they would like. By allowing one of the parties to control the outcome of the process, the other will lose their ability to do so. When this happens, the whole of the dispute resolution process is threatened, and a neutral will need to intervene in order to ensure that both parties are able to exercise their right ot self-determination.

Neutrality: A mediator’s neutrality may be threatened by an imbalance of power because it may appear that the mediator is siding with the party in power, Additionally, if the mediator is attempting to balance the power, the party in power may believe that the mediator is showing favoritism to the weaker party. Paying special attention to the way in which the neutral is interacting with the parties will help preserve the process and create a space where the parties do not feel that one party is favored over the other. Therefore, it is incredibly important to focus on the issue of neutrality when noticing or attempting to correct an imbalance in order to protect the process and to notice when the process is not productive between the parties based on the imbalance.

Strategies for Dealing with an Imbalance

As I touched on above, not all imbalances will need to be corrected. Some imbalances may help one or both of the parities negotiate effectively and achieve a favorable outcome. However, if an imbalance threatens the ability of a party to self-determine their outcome, the power will need to be balanced in some way to allow the parties to create their future the ways that they would like it to be.

An important to aspect to understand is that most imbalances will never be perfectly brought into balance, even by the most skilled mediators. Many of the types of power that affect the balance are created by circumstances outside the mediation and, therefore, the mediator’s control. However, there are strategies that will allow the mediator to increase the ability of the weaker party to determine the outcome of the mediation, and, in turn, balancing the power between the parties to some degree.

Listening to Overcome an Imbalance:

A tactic that will often help the parties understand and see the other’s point of view is to encourage active listening. A party in power will often know what they want and will refuse to actively listen to the opposing party’s ideas or points of view. Encouraging he parties to participate in active listening will help stop any type of verbal bullying that may be an issue and will ensure that the party that does not have power feels fully heard and understood. There are several ways to participate and encourage this type of listening.

• Ask the party in power to actively listen. This will often only work if the party in power is not acting as a bully toward the other party. If there is simply an imbalance where one party does not feel that they are being understood, you could ask the party in power to actively listen. Active listening includes tactics like:
o Repeating what the other party said
o Paraphrasing the other party’s offer or statement
o Having the parties find common ground in what the pther suggested
o Requiring questions after one party shares
• Be the active listener. If one of the parties is acting like a bully or interrupting the other, it can be beneficial for the mediator ask questions and clarify what the weaker party is saying, especially if they are being interrupted. Doing so allows the weaker party to be fully heard, and discourages the bully party from interrupting and taking over the negotiations.

Questioning to Overcome an Imbalance:

Another tactic that may be used to stop an imbalance from ruling a mediation may be to begin questioning the parties in order to develop the points of view of each of the parties and to encourage full participation and a chance to speak. This tactic has the mediator asking questions of the parties to develop and understanding of the positions, This allows the weaker party to have the chance to share their ideas and can limit the topics that the powerful party is able to speak to. This can become a bit more a formal mediation and border on a trial situation, but in cases of interruption and bullying, it can be helpful to make sure the parties are able to answer the necessary questions.

Self-Interest to Overcome an Imbalance:

Another way to encourage the parties to balance the power at play between them is to encourage the more powerful party to balance the power as a part of their own self-interest. This is usually done when the parties are separate. The mediator will suggest that it is in the dominate party’s best interest to work with the weaker party because coming to an agreement will be better than what could happen if the dispute makes its way into traditional litigation. This obviously will not work when the dominant party has a solid position should the dispute make its way to a court; however, it can be incredibly beneficial when the dominant party was a weaker legal position or will be able to get a much better settlement in the mediation. This includes suggesting the outcome of the case should it proceed to trial.

Clear Goals to Overcome an Imbalance:

A final suggestion is to work with the weaker party to help them develop and articulate their goals. Doing so can empower them to feel confident in what they need out of the mediation and will help them to stay strong in their goals to avoid the other’s power from outweighing their goals. By identifying and naming needs, the parties will be able to base the negotiations aournd those needs, which can keep the negotiations on track.

Conclusion:

An imbalance in power in a mediation can throw off the entire process and threaten self-determination and neutrality. When an imbalance threatens the self-determination of the parties, it is important for a mediator to step in and encourage the parties to focus on their needs and voice those goals. By encouraging the parties to listen to and understand the needs of the other, the neutral can give the parties a chance to leave the mediation feeling empowered and made whole.

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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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