Coping with Power
From MicroJustice
Contents |
[edit] The Problem
The essential values and characteristics of mediation make it a particularly effective means of dispute resolution in situations where power imbalances play a role. The concept of power imbalance is not new. Power is one of the key structural aspects of the negotiation process. Usually when power is unequal, negotiators are likely to expect that they will need to focus on protecting their own interests or exerting their dominance, depending on their position in the hierarchy. The law could play an extremely important role for the outcome in the mediation proces, as a safeguard against the incorrect use of power in mediation. Mediation should not be avoided as a dispute resolution process , when we perceive a significant power imbalance between the parties. The problem is that the dynamics of power in every dispute usually depend on its own context. It is difficult to predict how the power imbalance and dynamics will affect the process and the outcome of the mediation.
For example, in some cases mediation can provide a suitable environment to deal with power imbalance. In these situations, mediation attempts to use power creatively, transforming the dispute into joint decision-making, avoiding the negative consequences of power imbalances and offers safeguards to power abuse. In these cases of power imbalance, usually the weakest party will search for an integrative solution, because she will be unable to receive a high quality outcome. That is why, the weakest party is the one that must force the search for integrative solutions in unequal power process and to achieve a reasonable high individual outcome for her. Roger Fisher identifies six elements of negotiating power:
2. A good relationship;
3. A good alternative to negotiating;
4. An elegant solution;
5. Legitimacy;
6. Commitment;
Similarly, Robert Adler and Elliot Silverstein distinguish between personal, organizational, informational and moral power. A situation, conflict which is exclusively characterized by power imbalance may occur where:
(a) one party has a lawyer,
(b) one party is more emotionally vulnerable,
(c) one party is more anxious to settle,
(d) the mediator fails to recognize gender or culture-specific socialization patterns.
[edit] Issues
Power has been examined in a number of ways in negotiation studies. In most studies have been shown that negotiators with an equal balance of power reach agreements of higher joint gain than negotiators with an unequal power balance, but in some instance the opposite result have been found. The evidences seem to support the idea that equal power balance leads to more cooperative and integrative negotiation. However, few studies using PDG (prisoner dilemma paradigm) have found that the parties with unequal power have more cooperative choices than parties with equal power. For example, a study by Roloff, Tutzauer, and Dailey (1987) supports the contention that in dyadic negotiations, parties with unequal power are more likely to reach agreements of higher joint benefit than dyads with equal power. The effect of equal and unequal power balance on the behavior and the outcomes of negotiators in integrative bargaining situations remain unclear.For more detailed information look at http://www.springerlink.com/content/m3hg63027v013k2m/fulltext.pdf
Other scholars think that usually the mediation cannot deal fairly with the parties when they have significantly different amount of power in the dispute resolution . It could be that negotiators with a power imbalance are less able to reach agreements of high joint gain because the negotiators find it difficult to focus simultaneously on the integrative and the distributive aspects of the negotiation. The main reason, they argue, is that mediation works best when equals are bargaining with one another and proves to be ineffective in cases of severe power imbalance between the parties. The belief that the outcome is a function of the Parties Resources and as John Harrison points out, "negotiating power is not to be confused with physical strengthor even, necessarily, with economic power." Studies on power resources in negotiation reveal its inherent complexity. Robert Baruch Bush and Joseph Folger have named this understanding of the mediation process the “oppression story”.
[edit] Best Practices
The best practices when we have power imsbalance is first to ensure fairness and voluntariness in the process,second to provide legal representation and information to the parties, mediator training and mediator partiality. Sometimes good practise could be when the parties are provided with a "cooling off' period. In "Dealing With Power Imbalances in the Mediation of Interpersonal Disputes", A M Davis and R A Salem suggested eleven steps for addressing power imbalances in mediation:
(1) do not make unnecessary assumptions about existing power relationships,
(2) exploit mediation's innate ability to address power imbalances,
(3) encourage the parties to share knowledge,
(4) use the parties' desire to settle as a lever,
(5) compensate for low-level negotiating skills,
(6) interrupt intimidating negotiating patterns,
(7) make accommodations for language differences,
(8) respect the needs of young people,
(9) watch to see that one party does not settle out of fear of violence or retaliation,
(10) conduct mediation in a context that offers information and support to both parties, and
(11) do not rush to settlement.
It is appropriate to terminate a case under six conditions. These are when a party does not fully understand the mediation process, when a party is unwilling to honor mediation's basic guidelines, when a party lacks the ability to identify and express his/her interests and to weigh the consequences of the terms of the agreement, when a party is so seriously deficient in information that any ensuing agreement would not be based on informed consent, when a party indicates agreement out of fear of the other party, and when one or both parties agree that they want to end the session. The decision to terminate should be made in a way that does not further increase the power imbalance and that continues to demonstrate that both parties will be treated with full and equal respect.
For example, Howard Gadlinhas developed four major adaptations of mediation that he considers essential in mediating instances of harassment: (1) the availability of male-female comediation teams, (2) extensive use of pre-mediation meetings and negotiations with each party, (3) active encouragement of the use of advisors by both parties, and (4) the availability of shuttle diplomacy as an alternative to face-to-face meetings. Techniques such as setting ground rules are absolutely essential. Even the relatively simple practices of "reaffirming" and allowing equal time to both sides may also help to balance power and protect the public interest in ensuring that settlements are not only efficient, but substantively fair.
[edit] Recommendations
It is difficult to predict how the power imbalance and dynamics will affect the process and the outcome of the mediation. The dynamics of power in a particular dispute greatly depend on the context. But sometimes mediation provides an especially suitable environment to deal with power imbalance, because mediation attempts to use power creatively, transforming the dispute into joint decision making.These characteristics work against one party dominating the other when a skillful mediator is managing the process. Furthermore, the mediator who sees an abuse of power can stop the process of violence to avoid any such domination. Mediator has the power to change the dispute and turn adversaries into collaborators in reaching a resolution that will be acceptable to both sides. So the mediator can avoid the negative consequences of power imbalances and offers safeguards to power abuse. This certainly isn't the case when you go to court. Because of the power imbalance it's possible that the best speaker wins and it's also likely that the party with the most money will win, for the reason that the powerful party can affort the best lawyers in town.
