Originally from Dispute Resolution Journal

Should we take at face value the criticism that mediation cannot deal fairly with the parties when they have significantly different amounts of power? The author says “no,” finding many reasons to disagree with the critics’ underlying assumptions.

One of the main criticisms leveled against mediation as a dispute resolution mechanism is the claim that it cannot lead to “fair” outcomes when there are considerable power imbalances between the parties. Scholars have argued that the relaxation of formal and procedural safeguards implicit in the mediation process only benefits stronger parties who tend to take advantage of their position to coerce their weaker adversaries, leaving them worse off with less than they would have received in a formal adjudication. The aim of this essay is to examine this objection and its underlying assumptions. It discusses the core elements of the debate, explores features of mediation that deal with power imbalances, and analyzes the role of the mediator in dealing with power differentials.1 It questions the assumption that adjudication is the best mechanism to deal fairly with disputes involving power imbalances and concludes that mediation, although not infallible, is well equipped to fairly manage such disputes.

The “Oppression Story”

A recurring charge made against the use of mediation is that the process will “preserve the relative balance of power between the parties”2 and will allow “the strong to oppress the weak.”3 Critics argue that mediation “works best when equals are bargaining with one another”4 and proves “ineffective in cases of severe power imbalances between the parties.”5 Robert Baruch Bush and Joseph Folger have named this understanding of the mediation process the “oppression story.”6 The basic claim of the “oppression story” is that mediation is a perfect instrument for stronger parties to impose their will upon weaker disputants. This account argues that the “informality” and “consensuality” of the mediation process accentuate power imbalances between the parties; that this informality “denies the weak party the right to a system of checks and balances”; and that the “self-posturing ‘neutrality’ of the mediator” gives her “an excuse to avoid applying pressure on the stronger party”.7

The tenets of the “oppression story” appear in the work of several scholars. Two paradigmatic examples are Richard Abel’s critical account of informalism8 and Owen Fiss’ objections to “settlement”9—both of which, although coming from “very different standpoints in political terms,” warn against the propensity of mediation “to underline disparities of power between disputants.”10