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

(Re)Designing Mediation to Address the Nuances of Power Imbalance

ILAN G. GEWURZ

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 o f both the concept ofpower and the range ofprocesses that can be deemed mediation. This article exam- ines sources ofpower in an efort to develop a clear, yet thorough, understanding o f 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 o f 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 sum- mary 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.

CONFLICT kSOLrrr roN QUARTERLY, vol. 19,110. 2, Winter 2001 0 John Wiley & Sons, Inc. 135

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is actually all about. This is perhaps even truer today than it was twenty years ago, when Joseph Stulberg wrote that “paradoxically, while the use of mediation has expanded, a common understanding as to what constitutes mediation has weakened” (1981, p. 49). One contentious issue among the many debates surrounding mediation (which practices should be included in defining mediation? who should mediate? should there be a set of uniform standards? if so, what should they consist of?) is the question of mediation’s strengths and weaknesses in dealing with power imbalance.

The issue of power is complex, involving tangible and intangible resources. Though there is general consensus that the most extreme cases of power imbalance should not be mediated at all, there is little agreement as to when “sufficient power imbalance” places a conflict beyond the pale. Furthermore, there is no consensus on how to address power imbalance under normal circumstances, when it is not excessive.

Power as a concept is commonly used in everyday life as well as in aca- demic literature. Although superficially we can invoke the term and understand one another, power is actually an extremely complex notion. In and of itself it is neither good nor bad; rather, “power is a factor in all interpersonal relationships and it has significant effect on even the most coopera- tive dispute resolution processes” (Mayer, 1987, p. 68). In the sense that power is everything, it is also nothing for our purposes, in that it cannot be isolated as one among numerous factors to consider in a given dispute. It is thus important to distinguish the definition of what power actually is from the question of where power can be derived from.

Lewicki, Saunders, and Minton understand power as a party’s “ability to bring about outcomes it desires” (1997, p. 180). Similarly, conflict scholar Morton Deutsch states that “an actor . . . has power in a given situation (situational power) to the degree that he can satisfj. the purposes (goals, desires, or wants) that he is attempting to fulfill in that situation” (1973, p. 84). Although they highlight the practical aspects of power and the ability to achieve results, these definitions do not address what enables a party to achieve the state in which it can bring about desired outcomes. Adler and Silverstein say “the critical test should be which party controls more of what the other party wants or needs at any given moment”

Yet power is not a stagnant concept. Nor does it rest absolutely with one party or another. Power ebbs and flows such that it is constantly being reconstructed through the interaction between parties. Power can be understood as a “dimension of relationships rather than a resource under

(2000, p. 49).

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someone’s control” (Felstiner and Sarat, 1992, p. 1449). This way, it becomes clear that power is about possessing resources, not controlling them, since both parties can simultaneously have power.

Power is both a relational concept and a contextual one. Deutsch points out that power “does not reside in the individual but rather in the relationship of the person to his environment. Thus, the power of an actor in a given situation is determined by the characteristics of the situation as well as by his own characteristics” (1973, p. 85). For example, a child may possess a form of power over another child as a result of her superior physical strength. This same strength, however, may not empower her in relation to an adult.

Power is also contextual in that the power dynamics between the same two parties may shift depending on the circumstances. A prison guard holds power over a prisoner so long as they are within the walls of the prison. This power is derived from the social structure as well as the weapons that the guard possesses. However, were these two stranded on a desert island together, the power dynamics might be quite different, especially if the prisoner were to possess superior survival skills.

Seen as an element of the relationship between an individual and her environment-be it natural or social-an individual’s power does not rest entirely in her person. Rather, it depends upon the other parties in relation to whom she is empowered as well as the broad context in which she is interacting. Consequently, power dynamics do not depend purely upon actual distribution of resources (economic, psychological, or other- wise); instead, they are inherently linked to the perceived strength of each party. In a social context, perception often plays a greater role in determining power dynamics than does the underlying reality; “as a practical matter, the successful bluffer has the power that his or her opponent ceded in the negotiation” (Adler and Silverstein, 2000, p. 6). To a large degree, this explains the roles of emotional and psychological power, where one party systematically perceives himself as being disempowered in relation to another.

Given the complex nature of power, creating an itemized list of specific sources of power is extremely difficult. Scholars from many disciplines have attempted to address this question to enable identification of sources of power (and to maximize their own personal power). The work of French and Raven is one of those most cited as attempting to “identify the major types of power and define them systematically” (1968, p. 260). They approach the question of power from the perspective of the negotiator on

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whom power is being exerted (0) [=other]. Consequently, there is a descriptive element to the five sources of power they identify, since their goal is to enable 0 to recognize both where P’s [=equal party’s] power comes from and its limits or scope:

1. Reward power (P’s perception that 0 can mediate rewards for him)

2. Coercive power (P’s perception that 0 can punish him)

3. Legitimate power (P’s perception of 0’s legitimate right to prescribe

4. Referent power (P’s identification with 0) 5. Expert power (P’s perception of 0’s knowledge or information;

behavior)

French and Raven, 1968)

Roger Fisher, meanwhile, describes six categories of power that are similar to those identified by French and Raven. However, Fisher approaches power from the perspective of the party aiming to use it. Consequently, there is a more prescriptive emphasis to the sources of power that he identifies, enabling the actor to recognize where power is derived and how best to use it. Fisher‘s list consists of the power of (1) skill and knowledge, (2) good relationships, (3) a good alternative to negotiated agreement, (4) an elegant (or creative) solution, ( 5 ) legitimacy, and (6) commitment ( 1983).

Other scholars have built upon these basic distinctions in their effort to better understand the sources of social power. Looking specifically at power around the negotiating table, Lewicki, Saunders, and Minton (1 997) reclassified the basis of power and came up with their own five sources: informational power, resource control, legitimate power, location within the social hierarchy, and personal power. Ellis and Wight (1988), in the context of divorce negotiation, identify three broad categories of power- over outcomes, over resources, and over process. Kenneth Boulding (1993) defines the major categories as destructive, productive, and integrative power. Finally, Penelope Bryan (1992) and G. M. Walther (2000) emphasize the difference between power whose source lies in a tangible commod- ity such as financial stability and power based on intangible factors such as status or self-esteem.

Clearly, defining or even recognizing social power is a complex and difficult task. This article unpacks the notion of negotiating power and exam- ines how mediation interacts with an imbalance in the parties’ negotiating


power. Many proponents of mediation suggest that the process is generally good at dealing with the power dynamics between disputants. They argue that mediation empowers the parties to take control of their own process by allowing them to be “autonomous decision makers.’’ Critics of mediation, for their part, claim that it is precisely because mediation renders the parties autonomous to structure their own settlement and offers fewer formal protections that it makes the less-powerful party vulnerable. To say, however, in absolute terms that mediation is or is not an effective way of dealing with power imbalance is to ignore the complexity and nuance of both the concept of power and the process of mediation. As Meyers (1996) points out, altering power imbalance and addressing the power dynamics in a mediation process require that the mediator be able to detect and understand how power manifests itself. This is not a simple task.

The next section of this article defines the field of mediation and explores the range of activity and the styles that are part of a mediation process. The third section offers a new framework through which to approach the complex notion of negotiating power and explores specifically how those power dynamics play themselves out in the context of mediation. The final section argues that the interplay between mediation and power imbalance is highly dependent on the two factors previously identified: the nature of the power imbalance involved, and the style or approach of the mediator; it suggests that the strengths and weaknesses of specific mediation styles make a style more or less effective in dealing with a type of power dynamic.

Understanding Mediation

Broadly, mediation can be understood as a process by which an impartial third party, lacking authority to impose a solution, helps others resolve a dispute-“essentially a facilitated negotiation” (Bush, 1996, p. 3). In the preface to the “Standards of Conduct for Mediators,” mediation is defined as “a process in which an impartial third party-a mediator-facilitates the resolution of a dispute by promoting voluntary agreement (or ‘self- determination’) by the parties to the dispute. A mediator facilitates communication, promotes understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement.”’

There are a variety of issues, both in terms of a mediator’s style and the content of her intervention, falling under this broad definition, and each

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brings its own unique set of characteristics to bear on the process. To effectively capitalize on the strengths of each approach, it is useful to have a clear understanding of the factors that distinguish approaches before analyzing those differences in light of the dynamics of the conflicting parties.

In one form or another, ADR mechanisms have existed throughout the ages and can be traced back to premodern times3 But the modern movement of ADR in the United States-what some have termed “new ADR’ (Stempel, 1996, p. 333)-has existed only the past quarter of a century. The emergence of the modern-day ADR movement involved the complicated interplay between grassroots activism and initiatives from within the courthouse. During the 1960s, mediation activities flourished outside the courthouse, particularly in the corporate context and the arena of family disputes. At the same time, growing concern over excessive delays, costs, and the inflexibility of litigation made mediation a welcomed addition within the legal framework.

The real turning point for legal mediation came in 1976 at the Pound Conference, organized by Warren Burger (who was then the U.S. Supreme Court chief justice), who championed the idea of creating a role for mediation within the legal system and suggested “divert[ing] litigation to other channels” (quoted in Stone, 2000, p. 4). Professor Frank Sander advocated introduction of a “multi-door court house” functioning as a dispute resolution center. He imagined cases being directed into various conflict resolution processes, depending on their nature and needs.

Such complex and noninstitutionalized development helps explain why the field of mediation is so diverse, with little or no agreement (or formal standards) as to what a “good mediation” style is (Alfini, 1991). Efforts to map approaches to mediation are highly disputed, both in terms of effec- tiveness as well as whether it should be done at all. However, regardless of whether it is possible to design a comprehensive grid or chart capturing the full variety of mediation styles, it is important to highlight those elements that distinguish one approach from another. Doing so does not create rigid boundaries or deny practitioners the ability to maintain flexibility in their practice, or even to employ a mixture of techniques during the course of a mediation session. Rather, it highlights those factors that differentiate mediation practices, thereby enabling the strengths of each approach to be used to the fullest potential.

In his effort to diagram the spectrum of mediator orientations, strategies, and techniques, Leonard Riskin introduced his “grid for the perplexed” (1996). Riskin stressed the need to identify styles of mediation to


assess the strengths and weaknesses of each approach, thereby enabling disputants to select a mediator best suited to their needs. Matching power imbalance to mediation style is not important merely to enable parties to identify the most appropriate approach to mediation for their specific case, as Riskin suggests. It allows mediators to recognize how they should adapt their own style during the course of a given mediation in response to the particular conflict. Riskin’s grid has been the benchmark of the debate, anchoring proponents and critics alike in and around his definition of the mediation spectrum. Consequently, the distinctions drawn in the grid are an important starting point for analysis of the typology of mediation.

Riskin (1 996) characterizes mediation styles as ranging from facilitative to evaluative, and from narrow to broad in terms of defining the task. Although this is a good starting point, one must take account of factors beyond those identified by Riskin (such as whether the mediator is active or passive, and whether she is appointed by the court or independently approached). Only once we have understood these basic distinctions and how they play themselves out in the mediation process can we begin to explore the impact of mediation typology on types of power imbalance.

The distinction between facilitative and evaluative techniques is perhaps the most commonly addressed classification in the literature. It is a spectrum between two extreme positions, with a variety of approaches within the two poles. A facilitative mediator sees her main purpose as facilitating a better negotiation process between the parties. She does not make specific recommendations based upon her personal analysis of the case, nor does she directly deal with what a court would do with the same set of circumstances. Rather, she sees her roles as empowering the parties to develop the solution to their own dispute. The emphasis here is on process rather than substance; “the process-oriented mediator’s focus is toward empowering the parties to define and resolve the dispute themselves. The mediator creates a ‘comfortable environment’ thereby enhancing mutual understanding (Amadei and Lehrburger, 1996, p. 63).

By contrast, the evaluative mediator is likely to stress the merits of each party’s case, pushing the parties toward settlement. The more substantive nature of this approach involves the mediator’s evaluation of the merits of the case and recommendation on how it should be resolved in light of the strengths and weaknesses of each party’s position. These recommendations often reflect what the mediator believes would be “the likely outcome of litigation or whatever other process [the parties] will use if they do not reach a resolution in mediation” (Riskin, 1996, p. 36). An evafuative mediator

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may still possess many of the tools or techniques that a facilitative mediator does in controlling the process. However, as a result of her substantive-based intervention and judgment, she compromises her neutrality (at least to some degree); consequently, the facilitatois tools may have a different effect in an evaluative process. Amadei and Lehrburger (1996) point out that in many ways extremely evaluative mediation is similar to the traditional settlement conference in which a judge may push the parties toward settlement.

Framing the issues as being broad or narrow in terms of how the mediator perceives the goals of the process is another important distinction that Riskin highlights. Despite prolific writing on the topic, however, there remains a degree of ambiguity as to the essence of this distinction. The broad-narrow split is often invoked to refer to two separate, though closely related, ideas. The first relates to framing the process-regarding the set of interests that the process aims to address. The second deals with the objectives of that process, or framing the desired outcomes.

Every conflict situation involves numerous potential interests beyond those held by the parties sitting around the table. Consequently, narrow framing of a mediation process may refer to an approach that accounts exclusively for the immediate interests of the negotiating parties, while broad framing may take into account the interests of others. The question of whether the underlying issues at stake are limited to the individual interests or whether they should address a multiparty (or even communitywide conflict) affects how the mediator approaches the process.

Beyond framing the interests themselves, the broad-narrow distinction can refer generally to the objectives or scope of those very interests, regardless of how the process is framed. The distinction thus revolves around what the process seeks to achieve as an outcome. It asks whether the goals are purely interest-based in nature or relationally based (aiming to trans- form the underlying relationship). The objectives can be framed narrowly (‘(I don’t want my wife keeping the house”) or addressed broadly (“I don’t want my wife to be happy with her new boyfriend-definitely not under my roof”).

In this sense, a narrow view of the issues being disputed refers to a purely settlement-oriented approach, which aims at settling the specific matters at hand through a formal agreement. It is “goal-directed and driven by the legal issues” (Erickson, 1997, p. 233), in many ways paralleling the litigation process. In contrast, broader framing aims to get at the underlying issues motivating the parties to express their interests as they have. This


approach thus requires a first step of identifying the underlying interests. This may be extremely difficult, as the parties themselves are often not conscious of the true motivating factors underlying their demands.

This latter approach is closely related to the notion of relational mediation, which frames the issues in terms of the relationship and is thus not limited exclusively to how the specific interests play themselves out in the conflict at hand. The essence of the relational model was perhaps best captured by Lon Fuller‘s definition of mediation as a process whose core quality is the “capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them achieve a new and shared perception of their relationship, a perception that will redirect their atti- tudes and dispositions towards one another” (Fuller, 1971, p. 325). This approach necessitates helping parties dig deep into themselves to discover the true interests that lie at the root of their conflictual relationship.

Though these two distinctions highlighted by Riskin are important, many scholars have used them to capture more than they actually do. The facilitative-evaluative continuum, for example, measures the nature of a mediator’s intervention. This is not the same thing as measuring the level of intervention in which a given mediator engages. Imperati argues that it does not follow that a “facilitative mediator is the least interventionist” while an evaluative mediator would be termed most interventionist (1997, p. 710). Rather, a mediator who is facilitative in style can be either active (interventionist) or passive (noninterventionist), while an evaluative mediator can vary equally in her respective style.

Some mediators may actively engage in trying to level the playing field, on the premise that to achieve an equitable settlement-ne with a high likelihood of enduring-power imbalance must not be allowed to persist. Other mediators may be passive in their approach to power dynamics, concerning themselves with helping parties achieve a settlement, regardless of any objective measures of fairness: “it is important to distinguish between a mediator assisting in recognizing, organizing and marshaling existing power of a disputant and a mediator becoming an advocate and assisting in generating new power and influence” (Moore, 1986, p. 69). Thus, beyond the factors identified by Riskin, the active versus passive distinction is another important consideration in assessing how mediation affects powerimbalance. For our purposes, one must ask specifically whether a mediator is active or passive (using the facilitative or evaluative approach) in addressing the existing power relations.

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Finally, it is not the activities or the given style of the mediator alone that shape the impact of her intervention. The very identity of the mediator and the manner through which she enters the process are crucial factors in that determination. As stated earlier, mediation differs from negotiation in that the process is assisted by an intervening neutral third party. Involvement of a mediator automatically affects the process, not only because of the mediator’s interventions, as described earlier, but also through the unspoken shift in the behavior of disputants as a result of the mediator’s presence; “influence might result from the passive presence of 0 [a party whose mere presence holds power], with no evidence of speech or overt movement” (French and Raven, 1968, p. 260). This effect is particularly hard to measure but is likely to differ depending on the mediator, her social status, and how closely she is linked to the legal system lurking powerfully in the background.

Important characteristics distinguish the court-connected mediation process from mediation that is independently pursued. These differences play themselves out in relation to the voluntary nature of the process as well as in the level of deference that parties give to the mediator. A cornerstone of mediation is that it is a voluntary process. This voluntary nature is one of the primary factors that have led proponents to praise it as a process that empowers the parties, in which “the parties are the only ones with direct influence. Power to the parties” (Zumeta, 2000, p. 338).

But what does it really mean to say that the process is voluntary? Some scholars believe that “coercion into mediation does not seem objectionable, as long as there is no coercion in mediation to accept a particular outcome, and as long as unsuccesshl mediation does not serve as a barrier to adjudi- cation” (Goldberg, Green, and Sander, 1985, p. 504). But the question for our purposes is not whether coercion is objectionable but whether it affects the process, and if so, how.

In a private mediation-ne independently pursued-the mediator has informal power conveyed to her by virtue of the fact that both parties have chosen to enter mediation on their own volition. Furthermore, the parties are free to leave the mediation at any point. These two characteristics help determine how a mediator interacts with the parties. She can make state- ments relying on the presumption that parties perceive it to be in their best interest to settle out of court; “this dynamic is hndamentally altered when mediation is imposed rather than sought or offered. When mandatory mediation is part of the court system, the notion that parties are actually making their own decisions is purely illusory” (Grillo, 1991, p. 1580).


The process is still voluntary in that no settlement or decision is imposed on the parties. However, the mediator can no longer assume that the parties themselves have any interest in a nonadversarial settlement. Fur- thermore, the “pressure to settle” placed on the parties by the court (often by the judge)-whether it is overt or merely a consequence of being in a court-ordered mediation process-makes walking away from the table complicated.

Court-ordered mediators may lack the power derived from a truly voluntary process, but they possess their own form of power, resulting in another expression of the mediator’s role. The closer a mediation is to the litigation process, the more intricately connected the mediator is to the legal structure and the powers that enforce that system. Some scholars claim thatall mediation is done in the “shadow of the law” (Mnooking and Kornhauser, 1979, p. 968), but many private mediators try to deemphasize the legal component, focusing purely on the interests of the parties. Media- tion that is done in connection with or through an order of the court, however, brings with it the powerful force of the law. The more the parties perceive the mediator’s feedback to reflect a possible legal outcome-meaning, the more closely the mediator is linked to that legal structure-the more defer- ential the parties are likely to be to her intervention.

This automatic deference to the mediator can exist in private mediation as well, assuming that the mediator’s status is such that she commands respect. If the mediator is an authority in a given field, parties may be quicker to defer to her than to another mediator who is less highly regarded. But deference is more likely to occur the closer one moves into the shadow of the law. Thus, judges-even if they are trying to be passive and facilitative in their mediation style-may be quickly deferred to and thus most effective in balancing certain types of power imbalance. How- ever, more systematic protection is not necessarily better. There is no good or bad position here; rather, a combination (of facilitative-evaluative, broad-narrow, active-passive, or court-ordered-independent) is more or less appropriate depending on the conflict scenario.

Clearly, the role of the mediator is a complicated intervention affected by numerous personal, stylistic, and structural factors. Consequently, mapping mediation along a binary spectrum necessarily fails to capture the complexity of factors affecting the mediator‘s role. This article has by no means presented a comprehensive list of factors that could be considered when assessing mediation style. However, it has suggested that there are a variety of factors to consider when analyzing how the mediator influences

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the negotiation process, The three categories already identified-style (facilitative-evaluative and outcome-process-oriented), nature of the activity (active-passive and broad-narrow), and mediator power (voluntariness and formal status)-can be thought of as independent variables affecting power imbalance in different ways. Before we can explore how these mediation styles deal with power imbalance in the process, it is necessary to reevaluate the question of negotiating power.

A New Look a t Negotiating Power

As discussed earlier, the scholarship on power has produced numerous laundry lists of factors to consider when identifying negotiating power. It leaves us, however, without a clear working definition of the sources of power or how they are manifested. This section reorganizes the list of power sources and generates a comprehensive and clear picture of how social power plays itself out in the context of a negotiation:

I. Dispute-specific power dynamics A. Procedural power

1. Informational power and expertise 2. Commitment (single-mindedness) 3. Personal power

a. Attractiveness and friendliness b. Integrity c. Patience d. Eloquence e. Education f. Occupation

4. Referent power 5. Negotiating skills and style

B. Substantive power 1. Coercive and reward power 2. Resource control (economic power) 3. Alternative to a negotiated solution

11. The relationship context A. Relationship precedent B. Psychological power

1. Self-esteem 2. Emotional stability 3. Gender dynamics

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C . Legitimate power 1. Authority 2. Reputation 3. Socially granted power

The sources of power identified are not intended to be rigid in distinction. Rather, they overlap and influence the relative strength of one another. Interpersonal negotiations involve control over physical objects of value such as money and property, valuable procedural skills such as eloquence, and psychological sources of value such as love and respect.

Recognizing these categories of power, the outline distinguishes between power as it manifests itself in the specific dispute at hand and power that rests generally in the relationship, rooted in the parties’ shared history. The former involves control over substantive sources of power as well as the distribution of procedural power. The latter refers to the precedent regarding power relations and the interpersonal baggage that each party brings to the table. These distinctions are especially important in matching the appropriate form of third-party intervention with the type of power imbalance; this is addressed in the next section.

Procedural power refers to those factors that give one party an advantage over another in controlling the negotiation process itself. Lewicki, Saunders, and Minton (1997) point out that control over information- the ability to gather information that supports the position taken-is perhaps the most commonly identified source of procedural power. Many scholars fail to distinguish informational power from power derived from expertise. Though they are closely related, the former is rooted solely in the information held or believed to be held by the other party, while the latter involves the combination of information, status, and social deference. Expertise enables P to gain a degree of deference from 0 based on his perceived expertise in a specific subject matter. The perception of the other party as an expert influences acceptance of the information that he intro- duces, whether or not it is correct, thereby bestowing expert power.

Commitment to the process, or single-mindedness, gives a party the procedural power that comes from focus and clarity. A party’s ability to clearly define his vision of the settlement and to remain committed to the goals that he sets out for himself-in terms ofwhat he is willing to offer and what he is not willing to accept-is a source of power. Where this commitment is rigid, inflexible, or entirely unaccommodating, it can become a weakness, but it need not be. It can instead result in persistence to find a creative solution and

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new ways of addressing the issues. This is especially empowering in the face of a party unable to make a clear decision as to what he or she wants, or one that has not set out clear goals to which he or she is committed.

Personal power involves specific attributes and personality traits that make a party an effective negotiator. These include friendliness, or the ability to be outgoing and establish a personal relationship with the other party, “invoking in her a sense of empathy” (Lewicki, Saunders, and Minton, 1997, p. 189). These attributes may also include patience, which in the negotiation context involves time commitment as well as the capacity to lis- ten and truly hear what the other party is saying without interrupting. Per- sonal integrity or a clear set of values that ground the party’s behavior in a set of principles may grant the party’s negotiating position clarity and a socially supported moral high ground. Eloquence, or the ability to express one’s perspective clearly and persuasively, is obviously important in negotiation. Depending upon the circumstances, the party’s education and occupation may enhance his or her ability to understand the details of a negotiation process and the terms of an agreement. It may also enable the party to com- mand a degree of deference from the other negotiators. Finally, personal power may include a number of factors that are difficult to measure. These can be called the power of charisma and include physical presence, confi- dence, emotional control, intuition, and willingness to take risks.

Referent power refers to the desire of one party to identifjr with the other party, either through a feeling of connectedness or through a joint identification or reference group. This need not be a conscious desire. However, the stronger the need for identification and approval, the less power this party has in relation to the party with whom it seeks identification. This is distinguished from reward or coercive power in that “referent power has 0 seeking identification and inclusion, independent of P’s response” (French and Raven, 1968, p. 267). As Raven (1993) points out, personal approval from someone whom we admire can result in significant reward power, whereas reproach can be a form of coercive power.

Negotiating style, the final element of procedural power being addressed, is also extremely important in understanding parties’ relative power over the process. Kenneth Thomas (1976) identifies five types of negotiating style: (1) competition, (2) avoidance, (3) accommodation, (4) compromise, and ( 5 ) collaboration (interest-based). A competitive negotiator may be significantly empowered when facing someone who is a collaborator in style, whereas a collaborator may be empowered in relation to a conflict avoider.


Substantive power refers to division of tangible resources and the degree to which one party is dependent on the other, so far as this has an impact on the negotiation process. Coercive and reward power-which in collo- quial usage are often thought of as the simple definition ofpower-involve the ability of one party to independently subject the other to reward or punishment. This can take the form of physical threat, or more commonly, financial repercussion. Economic strength or control over resources may empower one party to bring about a specific settlement or keep an unwel- come result from materializing.

A party’s alternative to a negotiated solution-often refer to as BATNA, or the best alternative to a negotiated agreement (Fisher, Ury, and Patton 1991)-determines his or her ability to walk away from the table. It is largely this ability-how dependent a party is on the success of the negotiation process-that determines how much the party is willing to concede to prevent collapse. Thus, the more attractive the negotiator’s BATNA (meaning the less he has to lose from the collapse of the process) and the less attractive the other side’s BATNA, the more empowered the former is in the negotiation. This source of power assumes that each party accurately understands its alternative, which may not always be the case. An effective negotiator may be able to convince the other party that its BATNA is weaker than is actually the case.

Perhaps the most complex aspect of the sources of power involves the parties’ psychological state-conscious or unconscious. This requires understanding how power has played itself out in the relationship in the past, as well as analyzing the baggage that each party brings to the table in relation to the other. Has there traditionally been a pattern of deference by one party to the other? If so, is it restricted to certain subject areas, or does it manifest itself across the board? How have disputes been handled in the past? Is there a trusting relationship between the parties, or a history of exploitation? The history that parties share in relation to one another is significant in determining what they expect in the current process, how they perceive one another, and how power plays itself out at the negotiating table.

Closely connected to the history of the relationship is the psychological state of each party in relation to one another. This is especially significant where the parties have shared a long or close relationship. In such circumstances (especiallywithin the context ofdivorce), parties may have developed patterns of interaction that reflect their emotion and psychological strengths and weaknesses in relation to one another. Where a relationship involving

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long-term dependence has existed, for example, one party may express what psychologists term “learned helplessness” (Bryan, 1992, p. 466), involving a sense of powerlessness and a low set of expectations from the negotiation. A party’s emotional stability is critical for a successful negotiation (where success includes a notion of fairness). The issue of self-esteem is another factor that in some circumstances can be critical to negotiating power. Unlike people with high self-esteem, people with low self-esteem are likely to accept an extremely unfavorable agreement.

Many scholars in the area of divorce mediation have linked such psychologically based power imbalance to gender, arguing that the mediation process systematically harms women. There may or may not be truth to the argument, but the impact of psychological factors is not limited to negotiation between members of different gender. Rather, in any case involving significant, long-term relationship (and perhaps in other circumstances as well), the emotional and psychological effects of the relationship are important in understanding the power dynamic between the parties. This may be just as true for long-term business partners as it is for siblings disputing an inheritance arrangement.

Finally, legitimate power is understood as the beliefthat one party has the legitimate right to prescribe behavior or beliefs for another party. As French and Raven (1 968) point out, this can be achieved even without the ability to apply sanctions. This source of power is rooted in acceptance of a common social structure, which dictates where power should or ought to legitimately lie. It may be granted to an individual by virtue of his or her position of authority (the president), reputation or credibility (Mother Teresa), or social status (a movie star). According to the culture, this power or authority can come by way of birthright, election, or appointment to a position of status, or by virtue of occupying a position that society respects or admires. It is also important in negotiation between children and their parents, employees and their bosses, or another situation with a socially mandated power imbalance.

Mediation and Power

Having looked at the spectrum of mediation styles and approaches and having explored the nature of social power, let us turn to matching these power imbalances with the approach best suited given the circumstances. Many proponents of mediation suggest that the process empowers the parties to take control of their own conflict by allowing them to be “autonomous decision makers.” Folberg and Taylor (1 984) argue that the ability to structure


their own settlements and lives after marriage (referring specifically to their divorce mediation, around which much of this scholarship revolves) increases personal autonomy and dignity, and thus power. Furthermore, they claim that the mediator, by controlling the process-interrupting a tirade, framing the issues, c1arif)ing communication-has the ability to balance power discrepancy and even level the playing field, enabling parties to nego- tiate as equals. Some suggest that even in the case of a serious power imbalance mediation should be the forum of choice as it “tends to reduce the level of certain power imbalances by facilitating the exchange of information and ideas as well as reducing the level of tension” (Hughes, 1995, p. 578).

Critics of mediation, on the other hand, claim that it is precisely by rendering the parties autonomous to structure their own settlement and offering fewer formal protections that the less powerful party is vulnerable. Placing emphasis on the hture rather than the past may serve to justifjr or condone past behavior. Meyers (1 996) argues that this forward-looking emphasis combined with mediation’s process-oriented manner results in settlement that reflects the preexisting power imbalance in the relationship. This, they warn, makes mediation inappropriate in a scenario with a power imbalance, and even dangerous for the weaker party; “without legal power, the [power] imbalance between aggrieved individuals and corpora- tions or government agencies cannot be redressed (Auberbach, quoted in Davis and Salem, 1984, p. 17).

Upon closer inspection, one may notice that these scholars are not necessarily referring to the same processes. Both proponents and critics alike are using a narrow understanding of power and attacking or promoting specific forms of mediation. To say in general terms that mediation is or is not an effective way of dealing with power imbalance in conflict is to ignore the complexity and nuance of both the concept of power and the processes of mediation. As I have argued, power imbalance is fluid and dynamic and varies with the type ofrelationships as well as within any given reiationship- over time and in different social contexts. Furthermore, as has already been shown, mediation practices may differ in terms of style and objectives, and these differences affect power imbalance in various ways.

One approach may be better or worse than another, depending on the nature of the conflict and the type of power imbalance involved. Thus one cannot merely assess the strengths and weaknesses of the mediation process in dealing with power imbalance generally. What is required is in-depth analysis of how the spectrum of mediator styles and approaches interacts with the numerous forms and manifestations of power imbalance.

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This matching of style and power spectrums is required not only so that disputants can choose an appropriate mediator but also for the mediator to know what tactics to emphasize, or “why she should move or is justified in moving from one orientation to another” (Stulberg, 1997, p. 989). Though many mediators admit to having a specific basic style, most actually employ a mixture of approaches in their practice-ofien changing styles several times in the course of a single mediation. Golann (2000) points out that their choices of style seem to be a response to the personalities, approaches, and dynamics of the disputing parties. If in fact the mediator must constantly adapt her style to the disputant’s contextualized dynamics, then the onus is on her-more than it is the parties’ responsibility-to choose the appropriate form of mediation.

In practice, courts have tried to match disputes with the appropriate form of intervention; as the Federal judicial Center Report notes, “every case is handled according to its needs.” The report points out “judges are more likely to refer cases to mediation when they require facilitation, and more likely to refer cases to ENE when the case requires evaluation or subject matter expertise” (Federaljudicial Center Report, quoted in Sanders and Hamilton, 200 1, p. 243). However, nowhere does it mention what factors judges consider in determining what type of intervention a given case requires. A comprehensive analysis, matching power imbalance to the

Figure 1. Assessing Power for Mediation:Threshold Questions

Procedural Substantive Psychological

~ Expressed interest (business partners)

Yes Proced u ra I Substantive Psychological

Relationship by default (divorce, with children)

(1) Is there going to be (2) What kind of power imbalances exist?

Conflict I a future relationship?

Ending part re1 (landlord-tenai

Procedural Substantive t= Psychological

lationship nt dispute)

Procedural Substantive Psychological

One time interaction (bicycle accident)


appropriate mediation style, is beyond the scope of this paper. However, the final section of this article suggests some of the conclusions that may be drawn regarding each approach. The field remains open to further exami- nation of this topic.

In evaluating a conflict prior to sending it to mediation, one must first assess the nature of the power imbalance between the parties as it affects the mediation process. This involves considering the history of power dynamics in a given relationship, which, as stated earlier, can be procedural, substantive, or psychological in nature. The actual power dynamics at the negotiating table, however, are more than just an expression of this distribution of the sources of power. The dynamics involve the interplay of the existing imbalance of power and the parties’ desire to maintain a relationship in the future. One must “assess whether past relationships, or the parties’ inten- tions about future relationships, push them toward or pull them away from consensual approaches” (l‘otapchuk and Carlson, 1987, p. 39). Finally, the dynamic plays itself out according to the nature of the relationship.

The first question to ask in relation to power dynamics is whether there is likely to be an ongoing relationship in the future. This enables us to distinguish among four possible relationship orientations, all of which differ from one another with relation to the existing power dynamics. The expectations of the future, together with the precedent of interaction that has historically existed between the parties, form the current state of power dynamics at the negotiating table. Where parties anticipate continuing their relationship in the future, this expectation often serves as an internal check on power imbalance. This relationship check does not exist among parties who do not expect to interact in the future.

Although significant, this check on power is not absolute. It is important to distinguish parties that choose to have ongoing relations with one another from aggrieved parties that are bound together owing to external circumstances. The internal check on abuse of power exists more clearly in the former case (say, business partners who intend to continue their business relationship in the future). In such a case, the parties may perceive themselves as investing in a relationship and thus see it in their best interest to establish a working relationship and a degree of trust. The latter group (perhaps a divorcing couple disputing custody of their children) also has an interest in cooperating for the sake of future interaction. However, they may have an interest in maintaining only minimal contact (unlike the business partners building a relationship). Consequently, they may not make the same effort to develop trust or keep a power imbalance from being exploited.

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Parties to a conflict who do not intend to maintain any future relationship (as in a landlord-tenant dispute in which the tenant is leaving the building) may perceive the situation as consequence-free (in terms of dam- aging the relationship). As a result, the negotiating table is shaped primar- ily by the parties’ perceptions of the relationship and power dynamics as they have existed up to that point. It is these expectations that shape the level of trust and openness each party brings to the negotiating table. Finally, where there has been no previous relationship altogether (as with a pedestrian and bicycle accident between two strangers), there is no precedent for the negotiation nor any expectation of a future relationship serv- ing as a check on abuse of power discrepancy. Consequently, this may present a grave risk of serious abuse of power. Each of these relationship orientations requires its own form of intervention for mediation to be as effective as possible.

The second threshold question relates to the actual form ofpower imbalance at the negotiating table. Where the imbalance rests predominantly in the form of procedural power, the mediator’s intervention looks quite unlike the case of psychologically based power imbalance. The former may require a facilitative yet active mediator who places emphasis on broad framing of the issues and on achieving a balanced process. In the latter, where the power imbalance is the result of deep psychological scars and involves a complex history of relations, the weaker party may be more vulnerable and thus more easily taken advantage of. He may thereby require more substantive protection from the mediation process. Consequently, an evaluative mediator who is closely linked to the legal system may be appropriate.

Finally, this interplay between existing power dynamics and the impact of the parties’ interest in a future relationship also depends on the context in which the conflict is occurring. A business dispute can generally be distinguished from divorce or other form of family conflict. The sources of power resting in the relationship, including psychological and emotional factors, may play a more central role in the latter than in the former. The flow of information may be more central to the former, both in terms of the quan- tity of information available and the ability to keep it secret. The distinction between repeat players and one-time negotiators, previously mentioned, is significant in any context, be it business, the area of tort, or family dispute.

Personal power and negotiation style may be less of a factor in a multiparty, communitywide process where there are numerous negotiators than in a two-party negotiation. The intimate nature of the latter case may lend increasing importance to personal sources of power, such as empathy or the


negotiator’s educational background. These contextual distinctions are neither absolute nor rigid. There may be, for instance, a business relationship that is longstanding and extremely personal, whereas a divorce case might feature little emotion at all.

Examples of Possible Imbalance Situations

Though mediation is essentially an assisted negotiation process, one cannot assume that power dynamics remain entirely unchanged in the presence of a mediator. The very presence of a third party automatically affects the power dynamic. Depending upon the nature of the power imbalance in a given conflict, the mediator may use differing techniques to level the playing field in the most appropriate and effective way. With these threshold questions in mind-the existing power dynamic, the desire for future relationship, and the nature of the conflict-let us turn to some specific examples of how this may play itself out in the mediation context.

Example One: Repeat Players in a Business Context

A company that supplies handbags (supplier) is engaged in a dispute over the quality of product delivered (by manufacturer). Supplier is a significantly larger company than manufacturer. Supplier retains all the information regarding the original product design and holds significant bargaining power in the ability to move to another manufacturer.

The two companies have done business with one another repeatedly over the course of the last five years, and both parties would like to continue the relationship. For manufacturer, this relationship represents a significant percentage of the entire business. Though the same cannot be said for supplier, an ongoing relationship with a trustworthy manufacturer is nevertheless important. Consequently, both sides have a disincentive from abusing power and undermining the possibility of future cooperation. Even though supplier is larger than manufacturer, since there is a strong motivation to work through the issues to achieve mutual gain the power imbalance is less of a threat. This is not to say that no discrepancy in power exists at all, only that the weaker party requires less protection from the existing imbalance.

Under such circumstances, an active, broad-based, facilitative mediation may be best to address the conflict without exposing the weaker party to the possibility of exploitation. Manufacturer does not require the

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protection that comes with the intervention of an authoritative, court- ordered mediator acting in the shadow of the law. Rather, what the parties need is a process that facilitates discourse and enables them “to craft their own creative solutions that address their future needs and circumstances” (Amadei and Lehrburger, 1996, p. 65). A facilitative mediator may rely on the internal check on power and allow the parties to build upon their existing relationship. In fact, an overly evaluative mediator, one who predominantly emphasizes the elements that a court would find significant (potential breach of contract), may lead the parties to frame the issue as zero-sum and undermine their ability to maintain a strong relationship in the future.

Furthermore, framing the issues broadly-in terms of the relationship rather than merely addressing the specific transaction-may push the parties to develop a creative solution based upon shared interest. Because the existing power discrepancy reflects an uneven distribution of informational or procedural power, parties require an active mediator who frames the issues broadly and facilitates exchange of necessary information. This allows the parties to deal with the future of their working relationship beyond merely settling financial damages.

,Example Two: Divorce Context with Children

Mediating a divorce for a couple who have been married for five years may require quite another response to the existing power dynamic. After years of sharing a personal and intimate relationship, there is almost certainly a pattern of power relations between the parties. In our example, let us say the husband holds significant psychological and emotional power over his wife. He has been the dominant partner, making most of the family decisions and traditionally winning most of the arguments. He is the bread- winner in the family and is thus more financially independent and less financially vulnerable. Furthermore, he is the more educated and confident partner, thus empowered procedurally by way of his eloquence and negotiating skills. There is a grave danger that the husband may attempt to exploit his wife in the settlement process.

If the couple have children, this clearly serves as an internal check on abuse of power imbalance, since the parties are likely to have an ongoing relationship through some custody arrangement. However, this is not the same type of check as that in the business context. Unlike the example of business partners who see it in their best interest to build a relationship in the future, here the parties are stuck in a relationship that they may no

fRe)Designing Mediation to Address Power Imbalance 157

longer desire. Furthermore, the baggage they bring to the table is almost certainly more personal and emotional and thus more difficult to tran- scend. Therefore, the mediator must help balance the existing power dynamic.

In such a case, the wife should not be left at the mercy of her husband in a process stripped of formal, protective mechanisms. Rather, the mediator must balance this objective with the goal of helping the parties develop a working relationship for their future. Thanks to the significant discrepancy in psychological and emotional power, the parties should engage an active mediator who is closely linked to the legal structure. This enables the mediator (who might even be the judge) to bring to bear the authority of the law on the process, thereby balancing power discrepancy. Depending on the parties’ interest in a future relationship, they may be better served by an evaluative or facilitative mediator. The former may be more appropriate if the parties have no real interest in their relationship beyond the children. That may help the parties develop a functioning relationship for the future without putting the wife at risk.

Example Three: Landlord-Tenan t Dispute

After five years of living in the same rental apartment, a middle-aged couple (tenants) give notice to their landlord that they will be moving to another city at the end of the month. Landlord responds by informing tenants that the contract they signed upon moving into the building stipulates they are required to give three months’ notice prior to their departure. Landlord thus demands that tenants pay the extra three months’ rent, which they refuse, arguing that the three-month requirement is uncon- scionable and runs against accepted rental practices.

Seeing as the parties are ending their relationship rather than building one, there is no expectation of future interaction to serve as an internal check on the use of power. The nature of the negotiation depends on the history that the parties share (in addition to the parties’ financial situation, which dictates their BATNA). In this case, the parties have fought continuously over the last five years. Landlord has been slow in responding to tenants’ complaints and has generally neglected the buildings common areas as well as its residence. Tenants, for their part, have been repeatedly late with their rent checks and the subject of numerous complaints from their neighbors (for leaving garbage bags in the hallways and making noise late at night).

It is important that any mediator assisting in such a negotiation be aware that the process is shaped by the negative experiences of the past. This

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negotiation process flows out of a negative shared history, marked with dis- trust, frustration, and anger and with no future relationship to serve as an incentive for open communication. Consequently, the parties may be looking to maximize their power and be less willing to compromise than if they had a healthy, trusting relationship. Under these circumstances, the parties require an active evaluative mediator. An active mediator can, first, help steer them clear of negotiating positions that express spite, anger, or desire for revenge; and second, keep the parties focused on the task at hand. Fur- thermore, a mediator who is evaluative will assist the parties in recognizing their best interests in light of what a court might do given the circumstances. Although the mediator must know contract law and should understand real estate transactions, she need not be formally tied to the court.

Example Four: Bicycle Accident

While walking in the park, a woman (pedestrian) in her fourth month of pregnancy is struck by a man on a bicycle (biker). Pedestrian’s friend col- lects biker’s personal information and escorts her to the hospital, where she is admitted for three days of tests and rest. Soon thereafter, biker receives a letter from her attorney, demanding money for out-of-pocket hospital costs, loss of employment, and emotional distress.

Refusing to even meet biker, pedestrian sends her lawyer to represent her at the mediation, instructing him to extract whatever he possibly can. In this case, there is no shared history to shape the process and no future relationship to serve as an internal check on potential abuse of power. Con- sequently, the parties require an evaluative mediator who is closely linked to the legal system. An evaluative mediator can help each side assess the strengths and weaknesses of the client‘s case and evaluate the range of possible outcomes in court. Furthermore, being formally connected to the court means the mediator’s insight into the current state of tort law has a high level of legitimacy. Finally, whether the mediator‘s intervention should be active or passive depends on knowledge of tort law, personalities, and the relationship existing between the lawyers at the negotiating table; all of this may vary over the course of the process.

Though not the sole determining factor, matching mediation style with the existing power imbalance is extremely important in achieving the best possible process for the parties. Determining what constitutes “good mediation” (Alfini, 1991, p. 47) can only be done in relation to the dispute being mediated, as a given intervention may be appropriate in one circumstance while inappropriate in another. Consequently, it is essential to


continuously evaluate the dynamics at the negotiating table to assess which mediation approach offers the most valuable form of intervention.

Conclusion

In some sense, this article calls for a return to the notion of “variety pro- cessing,” suggesting a “multi-door court house” similar to that put forth by Frank Sander at the Second Pound Conference of 1976. However, we are now working with more than two decades of experience in the field of mediation and have deeper understanding of the range of possibilities as well as the strengths and weaknesses of each. Furthermore, we have more understanding today of negotiating power, recognizing that relationships require different forms of intervention in achieving a successful mediation without placing weaker parties at risk.

This article addresses the complex relationship between negotiating power and the role of the mediator. It offers a broad framework through which future practitioners and scholars alike can approach the issue of negotiating power and mediation. It calls for mediators to be trained to identify power imbalance and to be capable of adjusting their style to the ever-changing power relations that exist in a given mediation.

First, the article develops a clear, yet thorough, understanding of negotiating power to guide mediators in evaluating conflict and in their effort to flag the sources of power that each party holds. Recognizing that power is fluid, often intangible, and always relational, it explores the complex interplay of the parties’ past interactions, current sources of power, and expectations of the future. Furthermore, it shows that these factors are manifested according to the nature of the dispute or relationship.

Second, the article advances the scholarship on mediation, highlighting key characteristics that distinguish mediation approaches. It builds upon the distinctions identified by Riskin to develop a nuanced understanding of the mediator’s impact. Emphasizing the need to look beyond just the personal style of the mediator, and even beyond framing the issues, this article takes into account the very identity of the mediator.

Finally, recognizing the importance of designing a mediation process that effectively meets the needs of any given relationship, the article begins the large task of mapping mediation styles to power dynamics. Specifically, it explores the difference between mediating a dispute involving business partners and a divorcing couple. It shows how each case demands its own type and level of involvement to compensate for the existing power

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dynamics. it explores how specific styles of mediation may be particularly appropriate in each case.

It is important to recognize the limitations of these efforts to assist the practitioner in designing processes that are appropriate for the circumstances. First, within each category of dispute there are a range of possibilities for how power dynamics express themselves. Thus, to explore which form of mediation is most appropriate under what circumstance, each area requires its own comprehensive study. For example, the range of possible manifestations of power in a divorce situation is extremely vast. Further- more, this exploration can only serve as a starting point upon which the individual mediator can build. Beyond the theory presented herein, every practitioner has her own approach and style with which she must work. This personal element differs with the mediator and cannot be captured in overarching theory. This article intends to be a starting point for that growth and hopes to serve as a building block upon which future research will be based.

Notes

1. Early neutral evaluation (ENE) is a process by which the court orders parties to have a neutral third party assess the merits of the case and give a reality check for both clients and lawyers. These intervening parties assist in planning the process of discovery and may assist in actual settlement discussions if requested to do so by the parties. For a description of the processes, see U.S. District Court of Northern California, ADR program Website (w.adr.cand.uscourts.gov). 2. “Standards of Conduct for Mediators,” published by the Joint Committee of

Delegates from the American Arbitration Association (AAA), American Bar Association (ABA) Sections of Dispute Resolution, and the Society of Profes- sionals in Dispute Resolution (SPIDR). The joint standards are reprinted in Feerick (1 997). 3. A classic Jewish story from antiquity teaches conflict resolution. It tells of the

high priest Aaron shuttling back and forth between parties to a conflict (caucus- ing) in an effort to help them resolve their dispute through mutual understanding and improved communication. See Ethics of Fathers, 1:12. See also Telushkin (1996).

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7-5 1.

Ilan G. Gewurz is currently pursuing a J.D. at Stanford Law School. He holds an M.Sc. in international relations, with a focus on conflict resolution, from the London School of Economics and a B.A. in political science from McGill University. He has worked in mediation and conflict resolution in Israel, Canada, and the United States.

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