When a Power Imbalance Exists

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 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.

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, 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 an 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’ positions 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 technology.
Gender: Depending on the situation, a male or a female may have more power based on their gender and the topic of discussion.
Race: In many situations, white people will have more power than Black, Indigenous, and 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 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 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 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 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 be able 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 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 its 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 the 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 advantage 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.

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 the 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 ones 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 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 is 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 its power or influence over the other, the party without power may lose its self-determinative ability. If one party feels like they are losing its power to the other, it will also feel like they have lost the ability to fight for its position or to move the decision toward what it would be 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 to 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 produced 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 parties 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 in the ways that they would like it to be.

An important 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, balance 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 the 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:

Repeating what the other party said
Paraphrasing the other party’s offer or statement
Having the parties find common ground in what the other suggested
Requiring questions after one party shares
Be an active listener. If one of the parties is acting like a bully or interrupting the other, it can be beneficial for the mediator to 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 an 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 formal mediation and border on a trial situation. Still, 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 dominant 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 around those needs, which can keep the negotiations on track.

Conclusion:

An imbalance in power in 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

Contributing Editor at ADR Times

Emily is 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.

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