Correcting the Balance of Power as a Neutral Third Party

The other day, I came across one of the stickier issues in mediation - an imbalance of power between the parties, when neither one would admit that this was the case. It's a difficult problem to navigate as a mediator when one party won't acknowledge that the proposed solution is actually catastrophic for them.

Why would this happen? Why would anyone allow themselves to be pushed into an agreement that didn't actually work for them? The answer, unfortunately, is because they are often too scared or too timid to speak up and serve their own best interests. Why does this happen? Sometimes, it's the result of long-entrenched patterns of behavior, where one person has bullied the other for so long, and for so many years, that it's just the way they operate. Other times, the bullied party does not feel their position is justified, even if it is ultimately "just," or at least, reasonable.

Though I subscribe to a facilitative model of mediation (a party-driven process), I often find it difficult to hold my tongue when I see this sort of pattern emerging in a mediation. But what can I do as a mediator to rectify the process and navigate the discussion to a more productive place, without impinging on the autonomy/self-determination of the parties?

As a mediator, I am neutral. I can't advocate for one party or another, but it is my duty to ensure that no one signs an agreement that will prove to be untenable. So, while I can't push one party's agenda, I can ask tough questions to ensure that each person understands the ramifications of the disputed term, and also understands that it's better to walk away from the mediation than to leave with an agreement that is patently unfair (or even an agreement that they don't reasonably believe they can abide).

My goal is to leave parties with an agreement that will help them navigate their future interactions with dignity and respect, but failing that, I would prefer that they not set up an agreement that will almost certainly lead to failure or unfairness. In this sense, I represent the idea that no agreement is better than an unworkable agreement.

Mediation in highly charged crisis moments: The BP Oil Spill

Kenneth Feinberg has been tapped to oversee the administration of a $20 billion fund for claims arising from the BP oil spill in the Gulf of Mexico, as detailed in today's New York Times article:

"The fund will be administered by Kenneth R. Feinberg, the lawyer and mediator who ran the fund for victims of the Sept. 11 attacks and has emerged as a troubleshooter on issues like executive compensation and resolving claims for asbestos and Agent Orange victims....Mr. Feinberg will segue into his new role as the fund administrator, perhaps setting up shop in Louisiana, just as he is nearing the end of his stint as the government’s “pay czar” overseeing executive compensation at the nation’s biggest banks, a post created in response to public outrage at bankers’ bonuses after the financial bailouts of recent years. Besides serving as special master for the Sept. 11 Victim Compensation Fund, he helped in cases involving compensation for victims of illnesses related to asbestos and to Agent Orange chemical poisoning, among many others."

With such an environmental tragedy on our collective hands, mediation is a key aspect to healing the people who are most affected by the oil spill. It's heartening to see our government making use of an expert mediator to help rebuild and clean up the spill.

Patience as a Mediator

So often, it's tempting to want to jump in as a mediator, with a potential solution for clients. But, as a facilitative practitioner, it's sort of besides the point. Facilitative mediation allows the parties to drive the process, not the mediator. One of the reasons I feel so passionately about mediation is that, unlike a traditional legal setting (i.e. court), the clients are allowed and encouraged to build their own solution. The outcome is entirely in their hands, though the mediator can certainly offer guidance. It's a beautiful thing, really.