Power Imbalances in Mediation: Questioning Some Common Assumptions - Chapter 15 - AAA Handbook on Mediation - 2nd Edition

CHAPTER 15
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.1 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.

II. The “Oppression Story”
A recurring charge made against the use of mediation is that the
process will “preserve the relative balance of power between the