Should A Mediation Be Terminated When There Is A Power Imbalance Between The Participants?

(The following is part of a discussion, taken from a listserv, or electronic bulletin board, maintained by the New Jersey Association of Professional Mediators.)

Question: I am a new mediator. I am also finding the ‘equal balance of power’ issue challenging. … I have been wondering if balance of power is even possible … if one individual is potentially cognitively disabled. I am also concerned about the potential for [mediated] agreements to be overturned should one party claim to have been incapacitated during the mediation. … It seems that … an ‘agreement’ could be obtained with little effort to engage the more vulnerable party in the process. I do not think that these individuals would come anywhere near formal incompetency despite their apparent disabilities. I did ask for written assessments from a neurologist / psychiatrist to obtain more information about their official clinical status. Thoughts would be greatly appreciated.

Answer #1: Great question.

These balance of power topics and issues are all extremely important. Some of the issues are covered in the … “basic training” for new mediators.

The N.J. Rules of Court has a list of “you may or must not mediate this,” per Court Rule 1:40-4(h). It is only binding in court-referred or court annexed mediation settings, but it is very helpful to mediators in any setting. The thrust is, if you cannot overcome the problem, then mediation is inappropriate or even dangerous.

Mediators ALSO have the right to self-determination. If you don’t feel right about taking or continuing mediation, then bring someone else in, refer out, or terminate entirely.

Here are some essential points to consider:

1. Absolute Duties of Full Disclosure and Good Faith. I advise the parties that they are required, as a condition of my agreement to provide mediation services, to fully, fairly, honestly, and accurately disclose any and all relevant financial documents and information that may need to be exchanged between them as part of their negotiations with one another. Failure to do so may result in the Court’s cancellation of their resulting Settlement Agreement with one another, and will result in my suspension of this process if such failure becomes known during our work together. Specifically, the parties must agree to produce any and all pertinent documents that I may request or that either party or either party’s legal counsel may request of them. If there is a dispute between the parties with respect to whether a particular item or document must be disclosed, then I will decide. If documents and information requested by me are not forthcoming, then I reserve the right to terminate the mediation.

2. Right to Proceed With Less Than Full Information. The parties have the absolute right to engage in mediated negotiations with less than full disclosure. Full disclosure would ordinarily involve exchange of factual information and/or expert opinions, gathered by means of written questions and answers, document exchanges, formal interviews, experts’ evaluations and reports, and other and similar data gathering, exchange, and expert analysis. As mediator, I take no responsibility for the parties’ decision to reach a settlement, tentative or otherwise, upon less than a full exchange of information. If the parties or either of them shall make that decision, in whole or in part, then I reflect that fact in the parties’ final Memorandum of Understanding, so that their respective legal counsel will be fully apprised of those decisions.

3. Right to Independent Legal Advice; Right to Be Accompanied By a Non-Attorney Participant in Mediation. I strongly advise each party to retain separate New Jersey licensed legal counsel of his/her own choice to finalize any tentative agreement that may result from their mediated negotiations. It is very important that each party has the benefit of separate legal counsel before signing any agreements that may result from our meetings together. I take no responsibility for either party’s failure to retain, consult with, and/ or follow the advice of such legal counsel. Subject to “good behavior” requirement, the parties or either of them have the right to designate an attorney or another individual to accompany them to, and to participate in, the mediation process.

4. Mediator’s or Either Party’s Absolute Right to Suspend or Terminate Mediation; Duty to Pay Mediator Survives the Event; Interest and Collection Costs for Unpaid Amounts. The Mediator and each party reserve the absolute right to suspend a mediation session or terminate the entire mediation process if there is:

  • An imbalance of power between or among the parties that the mediator is unable to overcome,
  • A party’s perception that the mediator partial to another side,
  • A party’s abusive behavior towards another participant or the mediator that cannot be controlled,
  • A party’s continuous resistance to the process or the mediator, including failure of one or more of the parties to mediate in good faith,
  • The parties’ poor communication seriously impedes effective discussion,
  • A party is under the influence of drugs or alcohol,
  • Continuing the mediation process is inappropriate, dangerous or destructive, or
  • Misconduct in the mediation process by a party’s personal representative (whether a lawyer or a non-lawyer), or by a non-party participant.

5. The right to suspend or terminate is absolute, and it belongs to the mediator and both parties.

Answer #2: The mediator’s job is not taking and giving power, because then the mediator becomes the champion to one party and the adversary of the other, perhaps changing “favorites” at different times.

Mostly it is about letting people know where to get information or sources of it. Often it is about conducting a fair process in which dominance and aggression have no place because they are unnecessary.

Sometimes it is about stating simple rules of process and not hesitating to fairly enforce them if necessary.

However, power is an issue to be considered and not ignored. For if the mediator ignores power issues entirely, and leaves serious imbalances in place, then that is a problem waiting to become a disaster. The outcome is highly predictable.

As Woody Allen reinterprets a power-relevant biblical verse, “And in that day the Lion shall lay down with the Lamb — but the Lamb shall get no sleep.” :=)