(Re)designing mediation to address the nuances of power imbalance

Abstract

This paper dresses the complex relationship between negotiating power and mediation. It begins with the premise that to say in absolute terms that mediation is or is not an gective way ofdealing with power imbalance is to ignore the complexity of both the concept ofpower and the range ofprocesses that can be deemed mediation. This article examines sources ofpower in an efort to develop a clear, yet thorough, understanding of negotiating power. It then turns to the scholarship on mediation, highlighting key characteristics that distinguish mediation approaches Jiom one another and advancing the debate on what constitutes mediation. Finally, the article highlights how a specijic style of mediation may be appropriate for a given situation, depending on the existingpower dynamics between the disputing parties. e practice of alternative dispute resolution (ADR), particularly that T" of mediation, has seen exponential growth over the last two decades.In numerous states, this has manifested in adoption of court-ordered mediation requirements as well as other ADR mechanisms, among them summary jury trial, court-mandated mediation, and early neutral evaluation (ENE).' This proliferation of activity claiming to come under the banner of mediation can be seen within the framework of the legal system as well as beyond the courthouse.Despite its tremendous growth-which has made the practice of mediation more visible and commonplace and thus in a sense less "alternative"-and despite the prolific scholarship in the field over the last two decades, there remains little consensus with regard to what this process NOTE: The author would like to thank Deborah Hensler, Jessica klenzuela, andAbby Wisse f i r their insight and support.

California Court-Connected Mediation: Appreciating the Influence of Power and Processes

“…As such, each of these participants in the litigation process seeks to advance their agenda requisite to that quotient, or, in spite of that assigned measure of power. Some scholars suggest that mediation is a place in which power is balanced effectively outside of the adversarial process of the court, for example, in mediation (Gewurz, 2001;Kelly, 1995). Yet, clinical experience in California at-court mediation with high conflict cases suggests that in at-court mediation, power is significantly present throughout the mediation and adversarial processes, specifically influenced by the mediator making parenting plan recommendations at the end of the session.…”

“…Researchers and practitioners such as Gewurz (2001) and Kelly (1995) have provided thorough and enlightening eruditions of the types and ways in which power imbalances present in different contexts, especially alternate dispute resolution formats. The unique focus in this article is on power in terms of how systemic factors influence the mediation session.…”

“…The unique focus in this article is on power in terms of how systemic factors influence the mediation session. Mediators and child custody counselors should have a sophisticated academic and clinical knowledge of the many roles or types of power there are in social and relational contexts, as well as a systemic understanding (Bitter, 2014;Nichols & Schwartz, 1998) of how power influences the mediation session (Gewurz;Kelly, 1995).…”

Crooked Conflicts: The Effects of Conflict Asymmetry in Mediation

“…We argue that the perceived injustice stemming from conflict asymmetry decreases the likelihood that a conflict will be successfully mediated. A mediator helps disputants come to agreement without imposing a settlement on them by controlling how the parties interact (Bazerman & Neale, 1992; Elangovan, 1999; Gewurz, 2001). The mediator is (ideally) an impartial third party (Bush, 1996), who is trusted by both parties (Goldberg, 2005), and who facilitates communication and understanding to help the conflict parties find a solution that they can both agree upon (Gewurz, 2001).…”

“…A mediator helps disputants come to agreement without imposing a settlement on them by controlling how the parties interact (Bazerman & Neale, 1992; Elangovan, 1999; Gewurz, 2001). The mediator is (ideally) an impartial third party (Bush, 1996), who is trusted by both parties (Goldberg, 2005), and who facilitates communication and understanding to help the conflict parties find a solution that they can both agree upon (Gewurz, 2001). The success of mediation is usually measured by the perception of this success by the parties involved and their satisfaction with the settlement of the dispute (Lewicki, Weiss, & Lewin, 1992).…”