Originally from:

AAA Handbook on Mediation - Third Edition

POWER IMBALANCES IN MEDIATION: QUESTIONING SOME COMMON ASSUMPTIONS

Jordi Agustí-Panareda


I. Introduction

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.  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.