As it appears in Legacy Magazine, an Independent Insert found in the Miami Herald and Sun Sentinel (May 5, 2017)
Mediation/Arbitration: An Alternative to Litigation: “Addressing the Imbalance of Power in Mediation”
By Stanley Zamor
Power is perceived. And when litigation opponents are engaged in negotiations, they tend to negotiate from their position of perceived power. But are the positions of power sometimes imbalanced? And if they are imbalanced, how can there be any fair negotiations?
We’ve all heard about the biblical story of David and Goliath. Or the statement that, “You can’t fight City Hall…” Both illustrate one party being perceived weaker than their opponent, yet, we know how David beat Goliath eventually become a King, and that City Hall has lost, a lot. Mediation is conducted under various principles, one such principle is that a mediator has a duty to manage the imbalance of power and facilitate a process of negotiations where the parties feel empowered. Mediation is one of the only processes where a person without legal representation, can actually find themselves in fair negotiation against an army of lawyers.
The Imbalance of Power: What’s the Big Deal?
Ok, so let’s be honest. We deal with the imbalance of power all the time and all day. Whether it is your boss changing your shift or demanding you to stay later to complete a project, or the home association raising the HOA dues. We deal with power imbalances all the time and sometimes there is a need for the imbalance of power. However, when we want to find ourselves in litigation negotiations, we often seek to have a level playing field.
Often, even if we are in a position that is not favorable, with far less resources than our opponent, we still want to be treated with respect and consideration. When a perceived weaker party is treated with respect, they often are willing to negotiate, even if they have far less resources to negotiate with. When a skilled mediator is able to address power imbalances, by empowering the parties, litigation opponents feel more at ease to resolve the matter amicably.
How Mediators Manage the Imbalance of Power?
There are various techniques and tools available to a skilled mediator when addressing the imbalance of power during a mediation. A few are as follows: A high level of communication skills (both verbal/nonverbal); a strong awareness of the human condition, being creative and thinking out of the box; a keen ability/timing to know when to “reality-check” the disputants and the exploration of needs vs wants. Although there are many other techniques, different mediators have different styles that dictate what they may use.
Now that you know, that one of a mediator’s duties, is to address imbalance of power, be frank when you hire a mediator and ask, “How will you address the imbalance of power when we mediate?” Although the mediator facilitates the process, the process belongs to the parties, and they have right to feel empowered during the entire mediation.
Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and has a private mediation and ADR consulting company where he mediates/arbitrates and facilitates workshops. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.