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Power imbalances in mediation

  • 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.

The power of mediation

A number of years ago, I was involved, as counsel, in litigation that had gone on for years.  I had conducted a dozen or more trials by that time in my legal career, but I’d never been part of a mediation process.

After many years of such warfare, the lawyer for the other party said let’s try mediation.  I didn’t know the mediator the other lawyer had proposed, but since my client had already spent much time and money, I decided it couldn’t hurt.

It turned out that we had in fact retained a highly skilled mediator, and after 3 hours of bargaining, with her help, the parties settled the dispute – and shook hands.  It was an amazing sight to behold.  Those two had been at it for almost a decade.  The trick was that both needed to be heard.  The mediator heard them, and she ensured that they heard each other.  After that, it was just about a small amount of money changing hands, and the dispute was finally over.

It was at that point that I recognized how powerful mediation can be, with the right mediator.

Arbitration defined

– I’ve used the term arbitration in my blog, but I’ve not yet defined it.
– My website has a concise definition of it, but think of arbitration as a sort of court of law, although, it’s one in which you choose the judge.
– The arbitrator hears the sworn testimony, and after hearing all of the evidence and looking at the documents the parties have shown him or her, the arbitrator makes a decision.
– The decision has the force of a judgment of a court; however, just like a decision of a judge, it can be appealed.
– The point is, that if you agree before mediation that you will have an arbitrator decide the issue, if you have been unable to resolve it at mediation, there is that “threat’ hanging over both parties that there will be a decision made, one way or the other.
– Arbitration tends to be less formal than a court of law, but it does get you a decision, and it gets that decision faster and cheaper than litigation.

mediation builds bridges – litigation burns them

  • Family law, estate law and to an extent civil litigation are highly suited to resolution by means of mediation.
  • In  such cases the parties will often have to continue to interact.  That’s especially true in family law, particularly if the parties have children. In estate law, generally the warring parties are family members.
  • In civil litigation there are times when the combatants too will need to continue to deal with each other, such as a dispute between supplier and a purchaser, a landlord and a tenant, or any one of a number of such relationships.
  • In mediation, because the parties themselves, with assistance from the mediator, create solutions to problems, as opposed to litigation, in which one party wins and the other loses, the chances for the parties to be able to continue to deal with each other on a relatively friendly, or at least civil basis is enhanced.

mediation and lobster rolls

  • A couple of years ago I stook a course on mediation at Harvard University.  The faculty was amazing – as one would expect at Harvard.  I highly recommend it to anyone embarking on a career in mediation
  • One evening a group of us decided to take in a Red Sox game at Fenway Park.  It wasn’t just a game, it was an experience, since the hated Yankees were in town
  • Between innings I ventured downstairs for some food.  I was used to the “food” the Rogers Centre, so I wasn’t expecting much (it’s a stretch to call the stuff at the Rogers Centre food)
  • To my amazement and delight, I was able to buy a lobster roll!
    What a treat.  Ignoring the fact it wasn’t kosher (Yankee Stadium in the Bronx sells lots of kosher products by the way), it was a taste experience
  • The ACC (Air Canada Centre) has food that tastes like food.  It can be done, even in Toronto.  C’mon Rogers, you can do better

mediation makes the verld go round

  • In my mediation practice, I deal primarily with three areas of law.  Family law, that is, custody/access issues, determination of child and spousal support, and the division of value of assets.
  • Estate law, in which parties are arguing over the division of the estate that has been left to them, or more commonly, that has not been left to them, where they feel it ought to have been.
  • Finally, civil litigation, which deals with disputes generally involving money owed by one party to the other.
  • As you can see, other than that part of family law dealing with children, most disputes revolve around money.
  • As Joel Grey put it in Cabaret…”a mark, a yen, a buck or a pound, money makes de verld go around”.
  • The trick is not to spend more than you’re chasing.  That’s where mediation/arbitration can be so beneficial.
  • Mediation/arbitration is faster and cheaper than litigation and it’s
    also confidential.  Those are qualities which litigation seldom achieves.

both sides must be “heard’ in mediation

  • In mediation it is vitally important that both sides be given an opportunity to be
    heard (even if you don’t think the other side has anything worthwhile to say).
  • You may go into mediation with or without lawyers representing you, but regardless, it is almost impossible to resolve a dispute without both parties feeling that they have been “heard”.
  • In my mediation practice, I find that letting each party vent to the other side, even if it ruffles some feathers, allows for the “healing” to begin and promotes the settlement process.
  • It’s not intuitive.  At first I wondered if allowing one party to dump on the other would be counter-productive, but it seems it isn’t.  Apparently, we need to feel we have been heard before we can entertain the notion of compromise.