“Addressing the Imbalance of Power in Mediation” (short)

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As it appears in Legacy Magazine, an Independent Insert found in the Miami Herald and Sun Sentinel (May 5, 2017)

Mediation/Arbitration:  An Alternative to Litigation: “Addressing the Imbalance of Power in Mediation”

By Stanley Zamor

 

Power is perceived.  And when litigation opponents are engaged in negotiations, they tend to negotiate from their position of perceived power. But are the positions of power sometimes imbalanced? And if they are imbalanced, how can there be any fair negotiations?

 

We’ve all heard about the biblical story of David and Goliath. Or the statement that, “You can’t fight City Hall…” Both illustrate one party being perceived weaker than their opponent, yet, we know how David beat Goliath eventually become a King, and that City Hall has lost, a lot.  Mediation is conducted under various principles, one such principle is that a mediator has a duty to manage the imbalance of power and facilitate a process of negotiations where the parties feel empowered.  Mediation is one of the only processes where a person without legal representation, can actually find themselves in fair negotiation against an army of lawyers.

The Imbalance of Power:  What’s the Big Deal?

Ok, so let’s be honest. We deal with the imbalance of power all the time and all day.  Whether it is your boss changing your shift or demanding you to stay later to complete a project, or the home association raising the HOA dues. We deal with power imbalances all the time and sometimes there is a need for the imbalance of power.  However, when we want to find ourselves in litigation negotiations, we often seek to have a level playing field.

Often, even if we are in a position that is not favorable, with far less resources than our opponent, we still want to be treated with respect and consideration.  When a perceived weaker party is treated with respect, they often are willing to negotiate, even if they have far less resources to negotiate with.  When a skilled mediator is able to address power imbalances, by empowering the parties, litigation opponents feel more at ease to resolve the matter amicably.

How Mediators Manage the Imbalance of Power?

There are various techniques and tools available to a skilled mediator when addressing the imbalance of power during a mediation. A few are as follows: A high level of communication skills (both verbal/nonverbal); a strong awareness of the human condition, being creative and thinking out of the box; a keen ability/timing to know when to “reality-check” the disputants and the exploration of needs vs wants.  Although there are many other techniques, different mediators have different styles that dictate what they may use.

Now What?

Now that you know, that one of a mediator’s duties, is to address imbalance of power, be frank when you hire a mediator and ask, “How will you address the imbalance of power when we mediate?”  Although the mediator facilitates the process, the process belongs to the parties, and they have right to feel empowered during the entire mediation.

 

Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator.  Mr. Zamor serves on several federal and state mediation/arbitration rosters and has a private mediation and ADR consulting company where he mediates/arbitrates and facilitates workshops. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

szamor@i-mediateconsulting.com

www.i-mediateconsulting.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

DEATH OF A MEDIATOR (inspired by actual and true events)

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I come to you with a heavy heart. I am gravely saddened for our community of professional neutrals because we have lost yet another dedicated certified mediator. Although Albert D. Results, Esq. (“A.D.R”), principal of the 15 year old firm, Sensible Mediation, Inc. is very much alive, he has shut down his Sensible Mediation, Inc. forever, after a 24-month battle against declining revenues.  The closing of Sensible Mediation, Inc. not only effects its principle, who has decided not to recertify and leave Florida, but also its 4 person staff, who are now out of work.

A.D.R  was a well-established litigator (over 25 years) who decided to leave the practice of law and answer, what became the feeling of a higher calling, being a certified mediator.  It was not solely a profession, a side business, or just another way to supplement income like most attorneys turned mediator. It became a way to impact those who participated in the process of mediation who seeking legal justice.  He dedicated himself to conflict resolution and practicing “mindfulness” when mediating.

The circumstances that lead to the death of Sensible Mediation, Inc. is not shocking, just sad and disturbing to know that many dedicated mediators are at risk to the same fate.  Some can speculate that it was today’s unstable economy or the inability to adapt to the millennial business climate.  No. being more aware than that, A.D.R knew it was cronyism and unethical local mediator practices that Sensible Mediation, Inc. refused to bend to.  The large firm cronyism is keeping only certain mediators busy due to personal relationships, while large insurance companies will only select mediators they know serve their interest by conducting mediation how they want.  So, remaining true to its ethics, maintaining principles of mediation and practicing more mindfulness cost Sensible Mediation, Inc. its life.

So farewell Sensible Mediation, Inc. and its principle. You fought the good fight and maintain true to what the promise of mediation is. And although your certified mediator life has come to its end, carry on and good luck with your other endeavors.

 

This is based on real events. The names have been changed to keep the privacy of the principle and those involved.

A.D.R. has given me permission to write this piece and have asked advocates of ADR and mediators who have taken the time to read this, to stand firm and maintain the dignity of the profession by not letting “Large Firm X” or “BIG Company” control how the profession evolves and how mediation is conducted.

 

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