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November 14, 2024
When a conflict arises, many approaches may be used to settle it. This mostly encompasses litigation and Alternative Dispute Resolution (ADR) methods such as mediation, arbitration, and conciliation. Mediation has emerged as a very successful tool for alternative dispute resolution (ADR). There has been a significant increase in the use of mediation worldwide, especially in countries such as Australia, Canada, the United States, Europe, and India. Mediation is seen as an effective, cost-efficient, and adaptable method that provides parties with confidentiality, autonomy, and the impartiality of the mediator. Mediation occurs in a confidential setting, safeguarding the privacy of the process. Consequently, the events occurring behind these doors are known only to the contending parties and the mediator. This introduces the potential for one side to dominate the other during the mediation process. There can be no certainty that the agreements reached from such discussions are fair and reasonable. Consequently, it cannot be guaranteed that mediation provides the parties with the same procedural fairness as that found in litigation.
The likelihood of mediation lacking procedural fairness is significant due to the inherent power imbalance it exhibits. An illustration of this may be seen in a mediation process, which encompasses a marriage conflict between spouses, a disagreement between an employer and an employee, or a contention between a huge corporation and a small enterprise. In each instance, a power dynamic exists, with one side exerting dominance over the other, which is comparatively weaker. The power imbalance presents a significant obstacle to the efficacy of the ADR process in mediation. The critique of mediation is that it allows the dominant side to achieve its nefarious goals via this method, rather than pursuing litigation, which would guarantee procedural equity. However, there are arguments suggesting that this power imbalance may be effectively handled, with the mediator playing a pivotal part in this process. This necessitates the use of several methods and approaches by the mediator.
This section aims to analyze the dynamics of power imbalance in mediation and the strategies to address it, ensuring procedural fairness in the dispute resolution process.
Mediation, both in theory and practice, denotes a conciliatory and alternate method for settling disputes. A neutral third person, known as the mediator, is engaged by the conflicting parties in mediation. The mediator's function is to facilitate the resolution of the conflict between the parties involved and to achieve a negotiated settlement. The mediator's judgment is non-binding and not enforced upon the parties. The mediator tries to convince and help the conflicting parties to reach a mutually agreeable arrangement. This aids in alleviating the current problem and also leads to an expedited resolution. The mediator helps the parties in generating various possibilities, examining alternatives, and striving to achieve a consensus. The mediator does not assume a determinative or advising role and may just facilitate the process to achieve a settlement.
Mediation may be based on voluntary dialogue, an existing agreement, or a court order. In this context, it is essential to clarify that the word "alternative" pertains to the mediation process, when the parties consensually choose this method of conflict resolution instead of pursuing litigation, so making it an alternative to court proceedings. Additionally, this process encompasses a diverse but organized methodology in which certain aspects are established as the topic of mediation. The components include innovative solutions, impartiality, voluntariness, secrecy, and empowerment. To guarantee that the achieved solution was impartially mediated, it is essential to verify that these five factors are not disregarded. These concepts or aspects provide the conflicting parties with a feeling of security over the mediation processes. If any principles or aspects are absent, the outcome derived from the application of mediation principles cannot be considered unbiased or fair. Consequently, the parties engage in mediation based on these characteristics.
The parties would willingly choose mediation when they are convinced that the procedure would remain secret throughout the proceedings. Moreover, the occurrences throughout this procedure should not be used in any processes, including legal proceedings. Additionally, mediation will only be used when the mediator guarantees impartiality and neutrality in all circumstances. It is essential to guarantee that the parties feel empowered about the process controls while choosing mediation. Finally, it is essential that the parties assist the mediator to support the development of innovative and distinctive solutions.
The conventional dispute resolution system has been condemned for its inadequate performance in providing justice to individuals effectively, efficiently, and promptly. This applies to litigation, the judicial system, and adjudicative processes. The reason for this is that the courts are inundated with many litigations. It is said that there is a significant increase in case filings amid concerns over the potential failure of the legal system. Frustrations and disillusionments over contemporary justice delivery are evident in judicial systems worldwide. The difficulties and dire circumstances posed by litigation and conventional conflict resolution methods have strongly advocated for mediation and other types of alternative dispute resolution (ADR) within any legal framework. In this environment, there is a strong advocacy for mediation for many reasons, and a demand has been made for a change in legislative and judicial policy.
Scholars have questioned the inadequacies and limits of the mediation process. This is predicated on the lack of a formal method in mediation, coupled with the uncertainty of the outcomes. Additional criticisms pertain to the absence of assurances for the maintenance of confidentiality and the mediator's impartiality. Additionally, mediation may be undermined when only one party want to engage in the process. Moreover, when the court mandates mediation, it compromises the voluntary nature of the parties involved. This prompts an inquiry of the systemic disadvantages of mediation. Nevertheless, a thorough analysis of the criticized points reveals that the aforementioned inadequacies are relevant to all conflict resolution methods, including adjudication. Nevertheless, the benefits of mediation surpass its drawbacks. It is stated that entrenched interests do not value the use of mediation as a method for conflict settlement. This is due to the potential erosion of authority, income, and status often linked to judicial adjudications. Consequently, the attorneys may see mediation as a hazard to their income. This may also be seen as undermining the judicial authority of the rulings, perpetuating the discourse on the efficacy of mediation.
Power is defined as the capacity to influence others in a certain desired way. It is seen as the capacity to achieve the intended outcomes or to effectuate change in a manner that is preferred for a relationship. Power imbalance may be defined as the inequitable or distorted allocation of certain capabilities inside a person. The disparity of power is a stark and unyielding aspect of human civilization, seen by individuals often in their everyday lives.
Power imbalance cannot be disregarded in mediation. The power imbalance is likely to occur throughout the mediation process owing to the informal environments in which it transpires. The mediation of power imbalance may be articulated in a more nuanced way. For instance, one may envision a scenario where one party in the dispute has superior information, abilities, and expertise throughout the negotiation. A scenario may arise in which one party has superior negotiating power relative to the other; a circumstance in which one party has a greater number of supporters; and a condition where one party enjoys a better societal position. Additionally, this may occur in scenarios involving women from traditional societies, instances where one party is a tiny enterprise while the other is a large corporation, and situations where one side is just an employee of a large organization. This may occur in situations when a party is uneducated, illiterate, or lacks the technical knowledge to comprehend the mediation process, and may also include disparities based on the parties' ages. The aforementioned examples do not constitute an entire list of power imbalance issues in mediation. This is due to the existence of many official, informal, political, legal, economic, social, and domestic relationships among diverse parties.
Advocates of mediation highlight the existence of power imbalances within adjudicatory procedures, where one party is consistently confronted by the coercive and extensive power of the opposing party, which may be a state or its apparatus. However, these advocates overlook that a legally sound framework and formal process provide the necessary tools to mitigate the danger of power imbalance in court adjudication. Additionally, the court has the inherent authority to use its powers to prevent real or potential miscarriages of justice. Moreover, the judicial system has additional legal recourse such as revision, review, and appeal, which may be used if the parties believe there has been a significant instance of bias in justice due to a power disparity.
Therefore, asserting that power imbalance is only confined to mediation is inaccurate. The only issue is that it lacks comparable safety measures seen in judicial adjudications. The proponents who reject this become the focal focus of worry. Addressing the inherent issues of mediation, primarily arising from power imbalances, illuminates potential strategies for theorists to mitigate or, at the very least, reduce this problem, thereby enhancing the acceptability and efficacy of the mediation process.
Furthermore, while comparing mediation to adjudication regarding power imbalance, it is essential to recognize that the power disparity in mediation may not be readily apparent owing to its nuanced nature. This is evident in a situation when one side has a significant repertoire of negotiating strategies, potentially impacting both the mediation process and its conclusion, since this party's superior skills provide a strategic advantage. This is a particular issue in which the opposing party in the mediation consented to the procedure without knowledge of the first party's skill set. In this scenario, they are limited in their actions about the resultant award, since it originated from the opposing party's unfavorable position. A side with such a skill set would have avoided mediation. This may result in the disadvantaged party becoming wholly unhappy with the process and losing confidence in its framework. This casts a negative perspective on the mediation process. Mediation is seen as a neutral method only when the conflicting parties are satisfied with the resolution achieved via it. The most detrimental aspect is that when power imbalances lead to discontent with the mediation process, the parties have no further corrective options available, unlike in court adjudications. Addressing the power disparity inherent in the mediation system is essential.
The use of mediation in various corporate and economic conflicts frequently results in an imbalance owing to the standing of the opposing parties. To enhance comprehension, one may relate to hypothetical or simulated circumstances.
The first hypothetical situation involves a small local firm and a major corporation, whereby the parties are engaged in a contractual dispute over the effective allocation of resources by the small organization. The major firm persisted in advocating for the pre-negotiated price structure, which the tiny company rejected as excessively biased. Both firms engage in mediation to address the issue. The mediation process was characterized by a disproportionate representation, with the major firm’s representatives far outnumbering those of the tiny company, therefore amplifying the former's impact. The mediation failed to provide a resolution to the disagreement, forcing the tiny firm to acquiesce to the pricing structure imposed by the large corporation. Subsequently, the little firm characterized the process as vitiated due to the disparity in the number of representatives. The assertion may be made based on the pressure and coercive techniques used by the large corporation, leading to distorted results. Consequently, the imbalance of power rendered the conflict between the two firms inequitable and unjust.
A comparable scenario might be inferred about the conflict between the corporation and its workers over a potential salary dispute. An employee is an individual who may be subjugated by the corporation, owing to its substantial size and the legal resources that support it. The employee may face the risk of job termination or analogous repercussions if they refuse to withdraw and choose to contest the company's decision. The circumstances may be altered when the shareholders exert control over the firm.
Given the proven power imbalance in the mediation process, it is essential to ascertain if it can be addressed. It is essential to note that complete eradication of power imbalance is unattainable in this method or any other kind of conflict settlement. Nonetheless, the related dangers and the threats outlined below might render the mediation process quite formidable. Therefore, it is essential to operate in a way that minimizes this danger. The first step in this context is to acknowledge the existing power disparity in the mediation process. Opponents of mediation must guarantee that this issue is adequately addressed. The mediators are essential, since they must inform the parties of potential power imbalances after evaluating the particular or general context of the mediation process. Consequently, the mediator must guarantee that the parties are have an opportunity to make fully informed choices about the mediation process. Additionally, where necessary, the mediator must have private discussions with the parties to address the problem of power imbalance. This would enable the parties to do a situational analysis to determine the next course of action.
Recent study indicates that the emphasis on perceptions of procedural fairness in any procedure is essential. A person's preference for a procedure that enables them to influence the selection and development of information would serve as a foundation for resolving the issue. The emphasis is on the regulation of resolution development to include the concept of procedural fairness. The study demonstrates that the sense of procedural fairness is significantly influenced by both subjective and objective characteristics of the method. This arises from the sense of respect and status perceived by an individual when they believe they are being adequately heard throughout the mediation process. The encounters with the ombuds personnel in the informal dispute resolution framework significantly impacted procedural impressions. Scholars have emphasized the need of third-party training to conduct the process with mindfulness, objectivity, and care for the perspectives of those capable of influencing the decision.
The topic of facilitating a successful mediation process necessitates that the parties be given an opportunity to express their perspectives. This occurs because when a party perceives a chance to articulate their perspective using their chosen language, they consider the process equitable owing to its apparent fairness. Consequently, the mediator must guarantee that the parties perceive they own a measure of control over the information that underpins the conflict settlement process. Additionally, it is essential to guarantee that the parties may articulate their experiences without any kind of domination, to include principles of procedural fairness into the mediation process.
Consequently, it may be inferred that mediation is a significant method for settling disputes. Mediation has several benefits that enable parties to use this method of conflict settlement. Mediation provides an opportunity to resolve the disagreement privately and confidentially. Nonetheless, there are other disadvantages associated with mediation, including the absence of definitive resolution of the ultimate decision and the presence of power imbalances. In the presence of power imbalance during mediation, the procedural fairness often seen in courtroom litigations is lacking. The outcome achieved via this mediation procedure cannot be classified as equitable or fair. The power disparity in mediation arises when one party has a dominating position while the other occupies a subordinate one. This may result from the parties' roles, their competencies, or any other relevant aspect that establishes one party's dominance. When the parties achieve a dispute resolution outcome characterized by a power imbalance, the fundamental purpose of engaging in mediation is undermined.
It is essential to note that the issue of power imbalance extends beyond the mediation process. Other conflict resolution systems, like the adjudication process, also exhibit instances of power imbalance. Nonetheless, methods such as judicial adjudication possess additional authorities that are absent in the mediation process. It is essential for the mediator to guarantee that the mediation process is devoid of any power imbalance. When the mediator observes such a circumstance, it is essential for them to inform the parties involved, which may include privately notifying one side of the existing power imbalance. This is undertaken to guarantee that the mediation process yields equitable and just outcomes for the parties, enabling them to amicably settle their problems. Nonetheless, it is accurate to assert that mediation does not achieve procedural fairness when there exists a significant power disparity between the parties involved. This was evident in the simulated situations addressed in the preceding sections. Any act of deception by one side, aimed at exploiting their advantageous position, undermines the whole mediation process and its goal of achieving successful conflict settlement.
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