Power Imbalance

Power Imbalance in Mediation

Carolyn Manning

In a study on pre-modern societies, S. Merry has argued that "mediated settlements

between unequals are unequal." To what extent is power balance taken into consideration in the theoretical literature concerning Western mediation? How successful are actual programmes in dealing with it ? Provide examples from one of the following areas of practice: family, public policy/planning, or victim/offender mediation.

Abstract: This paper will review literature on Western mediation to determine whether power balance is an issue that is considered in the theoretical literature on this subject. The impact of power imbalance on the mediation process will be discussed. Attention will also be given to the role of mediators and participants in wielding influence over the power dynamic in mediation. The premise that there are "actual programmes" that seek to redress the issue of power imbalance in mediation will be examined. It will be argued that there are protocols and processes inherent in mediation programmes which promote equality and minimise power disparity between parties. This issue will be discussed with specific reference to the NSW Farm Debt Mediation and Telecommunications Industry Ombudsman schemes. Whether the features of these mediation programmes are sufficient in themselves to counter-balance inequality in power relations will be discussed.

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After reviewing literature examining mediation in modern-industrialised societies it is apparent that there is a body of research that examines power balance and its impact on the mediation process. Authors examining power as an influence on the mediation process include Mayer (1987), Olekalns (1997) and Roehl and Cook (1985) whose research suggests that power-whether equally or unequally distributed will-impact on the outcome of mediated disputes. Mediation will be defined as a procedure where parties to a dispute agree for a neutral third party to become...