Power imbalances are an important consideration during mediation, but they do not start when mediation begins. Rather power imbalances are pre-existing factors that are at work leading up to the process.
In his paper Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics Shapira discusses coercive power, which is defined as “the ability to cause what the other party would consider a negative outcome” (Shapira, 2005; p 542). He notes that this power comes from “control over resources such as money, physical strength, and high social status” (ibid.). While coercive power is certainly evident during the mediation process, it plays an important role before the mediation begins. This is because the choice of mediator can be influenced by power imbalances, which can propagate that imbalance throughout the mediation process. I will discuss two ways that power imbalances can affect mediator choices through the pecuniary pressures on the parties choosing the mediator.
In mediation, each party typically pays the mediator equally. At first glance, this seems to be an equal process. And to some extent it is equal, insofar as it prevents one party from hiring and thus indirectly influencing the mediator. However a 50/50 split of costs can disadvantage certain parties by indirectly forcing them to disclose the amount of money they have. For example, imagine a mediation involving a matter where each side wants to keep their financial assets hidden from the other. If Party A is rich and suggests an expensive mediator that the poorer Party B cannot afford, Party B to some extent shows its hand by rejecting that mediator. This gives Party A coercive power over Party B during the actual mediation, as Part A has knowledge of Party B’s general financial position.
The second way pecuniary power imbalances influence mediator choice is through the length of the mediation. Lets say that Party A knows that they have more money than Party B, who has enough money to afford a mediator but only for a certain amount of time. This will necessarily push party B to want to reach an agreement quickly. The more expensive the mediator chosen, the more pressure is put on the poorer party to settle quickly. Again, this puts party A in a position of power over Party B, as Party B will be more likely to concede on issues in order to save time and money. Korobkin in Bargaining Power as Threat of Impasse calls this sort of power “patience power”, as the party that can wait longer to reach a deal is less likely to resort to their second-best option.
In conclusion, pecuniary coercive power plays a role in mediation before mediation begins through the choice of mediator, and this power has the potential to reverberate through the mediation process.
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