Power in Mediation

Editor’s Note: This essay won the 2022 ABA James B. Boskey Law Student Essay Contest on Dispute Resolution. The purpose of the James B. Boskey Essay Contest is to create greater interest in the field of dispute resolution among law students at US law schools.

Effectively dealing with power dynamics is essential to mediators’ success. And though mediators may all agree they know power when they see it, there are many nuances that shape individuals’ notions of power. If asked, mediators will likely describe power differently—evidence that defining power is not simple or straightforward.

Effectively dealing with power dynamics is essential to mediators’ success. And though mediators may all agree they know power when they see it, there are many nuances that shape individuals’ notions of power. If asked, mediators will likely describe power differently—evidence that defining power is not simple or straightforward.

Mediation is unique among dispute resolution processes because it is the only third-party process where disputant self-determination is paramount. Self-determination exists not only as a significant mediation norm, but also prominently sits as the first standard in the Model Standards of Professional Conduct. Under the Model Standards, a party engages in self-determination by “coming to a voluntary, uncoerced decision” where the party “makes free and informed choices as to process and outcome.” Parties should have self-determination in every stage of mediation, including “mediation selection, process design, participation in or withdrawal from the process, and outcomes.”

Self-determination protects parties against coerced decision making. Coercion occurs when an “actual or threatened” use of power either “possessed or believe to be possessed” forces the other party to have no choice but to act in accordance with the coercing party’s will. Accordingly, self-determination, coercion, and power are all related.

To ensure mediation promotes party self-determination, researchers and practitioners must recognize both the existence and effect of power differentials between parties. Early critics of alternative dispute resolution anticipated that low-power individuals would be more vulnerable to coercion in mediation because its private and informal setting could benefit high-power individuals.

Despite the early criticism, mediation has grown tremendously, and participants report high levels of satisfaction, even though low-power participants may have worse financial outcomes from mediation than from adjudication. Some modern researchers argue social and cultural hierarchies and bias negatively impact mediation in significant ways. Others highlight conflicting research results, argue for more research, and advocate minimizing any potential risks of prejudice in the meantime. Recognizing these issues, mediation proponents believe solutions lie in mediator training and increased awareness of potential problems.

However, to recognize problems and find solutions, stakeholders must develop a common understanding of power in mediation. Yet instead of defining power, writers often simply provide illustrations or discuss sources of power. For example, power imbalances may occur where one party is “better equipped with negotiation skills, knowledge, [or] information”; a larger company than the other party; “illiterate or uneducated about the technical issues”; or part of the societal elite while the other is not.

Existing Descriptions

A shallow dive into philosophy, psychology, and sociology reveals a complex ecosystem of power definitions, concepts, and debates. Psychologists and philosophers have described power as “the ability to get one’s needs met and to further one’s goals”; “individuals’ asymmetric control over valuable resources”; and “a potential for influence [that] occurs when one individual controls access to stimuli desired by another individual.” Philosopher Michel Foucault offered guiding principles regarding power: (1) power is not a possession, but an exercise or action; (2) power as an action can exist in many different forms, including persuasion, refusal, building conflict, building consensus, and evasion; and (3) power cannot be contained in one group of people; rather power has a “net-like anatomy.” Though Foucault provided helpful guidelines, he criticized general theories of power for focusing on the definition of power, rather than how power is used.

In sociology, the classic definition of power is the ability to achieve one’s goals even against others’ actions or desires. Vincent Roscigno, a sociology professor specializing in inequality, sees a logical flaw in focusing only on the use of power and not its existence. By focusing only on apparent uses of power or overt conflicts, we ignore the power imbalances inherent in hidden biases and hierarchies. Therefore, Roscigno’s framework considers individual actions and relational dynamics within social and cultural structures. He argues that “powerful actors” often utilize bureaucratic structures “in a manner that reifies hierarchies and inequalities by age, sex, and race.” This has direct implications for mediation, which has fewer formalities and less oversight than formal adjudication. Nevertheless, like Foucault, Roscigno does not define power.

According to the examples, perspectives, and definitions discussed thus far, power relates to resources, relationships, the ability to achieve goals, control over others and oneself, relationship histories and behavioral patterns, social identification, bureaucratic structures, and culture. While Foucault expressly argued against crafting a discrete definition of power, discrete definitions are necessary for productive analysis in the legal field and real-world applications. In the mediation context, where courts, training programs, legislators, and mediators must determine policies and procedures, a definition can provide common ground from which to make decisions. Further, using a shared understanding of power, mediators can adjust power dynamics in real time and policy makers can support disputants’ self-determination.

Proposed Definition

As the prior discussion shows, defining power has not been simple or straightforward. Using ideas from dispute resolution, sociology, psychology, and philosophy to recognize the complexity of the concept of power while providing the foundation for a shared understanding, I propose the following definition.

Power is the conscious and subconscious ability to provide or remove options and opportunities to or from another person. The ability may stem from resources, interpersonal relationships, or relative positions in society.

Under this definition, power is an ability—not a possession, and parties may use power with or without awareness. Power is relational, existing between people, and resources, relationships, and societal structures impact it. Parties may use power to provide options and opportunities (something rarely done in disputes), potentially expanding party self-directedness. In contrast, using power to remove options and opportunities from a party diminishes party self-directedness, thereby increasing pressure on that party. In some cases, that pressure can result in coercion. Lastly, because the definition is broad, it encompasses various issues in dispute resolution, including party resources, party communication, mediator influence, and cultural backgrounds.

Testing the Definition

We can test the proposed definition by applying it. Consider the following hypothetical, Hernandez v. Middleton, a mediation scenario appearing in a popular mediation textbook. The scenario is designed for students to play the parties and mediator. The parties rely on tailored information, forcing mediators to grapple with how to respond to power imbalances. The scenario is intentionally designed with a more powerful defendant and a particularly sympathetic plaintiff so students must confront expectations of neutrality, fairness, and justice. Student mediators must analyze the power dynamics and then decide how to react. Mediators do these analyses very quickly in real time, but it would be a mistake to shortchange the work that goes into analyzing power dynamics.

In the scenario, an undocumented day laborer, Hernandez, has sued Middleton Construction company to recover payment for a job. Middleton hired Hernandez to work for ten dollars per hour, and Hernandez worked 40 hours before being run off of the job site. Hernandez believes he completed an essential task for the job as instructed. Middleton, however, believes Hernandez made a mistake and deducted the $300 remediation cost from Hernandez’s wages.

Even though Middleton knows withholding payment in this fashion is illegal and can result in damages, he will not offer the entire $300 Hernandez requests. Middleton believes plaintiffs in these situations typically drop the case if it proceeds to trial because they fear deportation. In fact, Hernandez does fear deportation if he proceeds to trial. He repeatedly asks the mediator for advice and when there appears to be no reasonable alternative, Hernandez will accept any offer, even if very low.

Mediators should notice several power issues. Each party has some power to impact the other. Middleton has power to limit Hernandez’s recovery by refusing to offer the full amount requested. Middleton’s power stems from informational and experiential resources—he knows undocumented parties rarely proceed to trial. Hernandez has power to pressure Middleton into agreement by threatening to, or promising not to, damage his reputation with other day laborers. Lastly, Hernandez can determine the progression of the case by deciding to proceed to trial.

Mediation structure and broader cultural and structural circumstances also implicate power. Middleton may benefit from the structure, which encourages the mediator to maintain neutrality and avoid advising Hernandez. Also, a mediator’s racial or nationalist bias may influence how a mediator communicates or fails to communicate offers and information.

Once mediators are aware of the power dynamics at play, they must decide how to respond and use the power of process to ensure parties fully consider their options and actions. To do this, mediators work with uncertainty and doubt to increase informed decision-making thereby enhancing the parties’ self-determination. For example, in Hernandez v. Middleton, a mediator, recognizing Middleton’s power, might emphasize the norm of good faith negotiations and ask questions to help Middleton realize Hernandez’s power to impact his reputation. Mediators may also develop the parties’ understanding of each other and try to build rapport between them. In other situations, a mediator may analyze power and direct parties to share documents prior to mediation, establish cooling off periods, or decide to end the mediation. No matter the dispute, the more accurate information the parties have, the better their ability to engage in self-determination. Regardless, mediators cannot react unless they are aware of the power dynamics involved.

Concluding Thoughts

Though scholars have discussed power imbalances since the rise of dispute resolution, there is no uniform definition of power in the context of mediation. And while philosophers, psychologists, and sociologists provide definitions, frameworks, and theories about power, their conceptions fail to address all the factors that might impact power imbalances in mediation. By combining ideas from these fields, the proposed definition may help mediation practitioners and scholars recognize power’s impact on self-determination and discuss power from a shared understanding.

Lastly, though the popularity of mediation may signal its efficacy and efficiency, it may also hide injustices unknown to parties and mediators. To ensure self-determination and mediation integrity, we must continue to evaluate and improve mediation procedures based on shared definitions and goals.