First of all, SCREEN! Then Screen some more.
Screening mediation clients for power imbalances and intimate partner violence does not stop at the initial intake/screening meeting. Screening is not just a one-off triage process to help a mediator determine whether mediation is appropriate and how the mediation should be structured.
A decision that mediation is appropriate at the outset could change as mediation progresses. That is why screening should take place throughout the entire mediation process.
I work on the premise that parties are not always candid or forthright with information at the outset. I can understand why. They are meeting me for the first time. I am a stranger. It may also be that they want to use the element of surprise.
Why would I ever believe that I would learn, in a single meeting, all the information required to decide once and for all that mediation is appropriate or whether, for example having parties in the same room, zoom or otherwise is beneficial? Even in my private practice, I am sometimes shocked to learn information months after I have been retained; Information that would have impacted strategy and also positions (remember this word, “position”, I will write about it in my next blog) taken.
So here are some guiding thoughts/principles that I apply in my mediation practice regarding the importance of and bases for continual screening:
- If mediation is to be successful, each party must be able to make informed decisions regarding their interests and the outcome they wish to achieve at the mediation. If a party holds a substantial power advantage over the other, it can negatively skew the negotiation process. It is therefore uber important for mediators to identify and address any power imbalances that surface to guard against potential misunderstandings or misinformed decisions.
- Power imbalances can evolve or change as you go through the mediation process. Parties may appear to be on equal footing at the start of the mediation, but as negotiations take place, parties may disclose information that suggests that there is a serious power imbalance between the parties. A mediator must be able, therefore, to recognize shifts in power dynamics and find ways of addressing those shifts. Oftentimes we caucus with clients at the signs of evolving or shifting power imbalances. We sometimes put on our evaluative hat. That sometimes does wonders!
- Continuous screening and addressing of power imbalances demonstrate that a mediator is committed to a fair and unbiased process. Clients want to trust you!
- If power imbalances are not continuously audited (borrowing from the accounting world), this can contribute to increased tension between the parties. With your pulse on any imbalances, you can help diffuse tension and help the parties engage in positive communication, feel heard and empowered. When mediators are able to assure parties that they have an equal say in their negotiations, the mediated outcome is likely more sustainable than those created as a result of one party overpowering the other. In other words, when we continuously address power dynamics, we are supporting the parties’ being able to conclude deals that they are satisfied with. If power imbalances are present and unchecked, the agreement reached may not be appropriate, or fair and this will inevitably lead to disagreements in the future.
To sum it all up, a fair, effective and balanced mediation requires continuous screening.
