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Power imbalances in mediation

December 15, 2011
  • An issue of great importance in mediation and arbitration is that of power imbalance.  How can a mediator or arbitrator be satisfied that the parties are negotiating fairly and honestly?  What if one party has told that other that if he or she makes a claim for custody of the children, they’ll be kidnapped or killed? 
  • Under such circumstances, can any mediated agreement or even arbitral hearing be said to be fair?  For that matter even court Orders in such circumstances are also highly compromised. 
  • The best one can hope for is to assess in advance for such power imbalances, arrange for appropriate protections to be put in place, and at least ensure the intimidation is a known factor and every safety precaution is put in place.
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