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Dealing with power differences

In many disputes, one of the parties has more money, better connections, or simply more physical power. But that should not mean this power influences the outcome.

What challenges does it focus on?

Ensure that both parties have the same influence over the outcome.

Short summary

In many disputes, one of the parties has more money, better connections, or simply more physical power. The following are practices facilitators use.

Involving people

A facilitator can bring in more people that have influence over the more powerful person. This can be family members, religious leaders, chiefs, elders, school teachers, or anyone else they would listen to. Neutral people who do not have a stake or interest of their own in the conflict. Learn about how to involve influential people and helping influential parties.

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Providing information

  • Inform about what is a fair outcome according to the law. And what the law considers fair and just behaviour of the more powerful party. Repeat if necessary.
  • Inform about religious (and/or traditional) norms. And what religious and/or traditional norms consider fair and just behaviour of the more powerful party. Repeat if necessary.
  • Explain what might happen if the more powerful person does not reasonably cooperate to find a solution. To whom can the less powerful person go? What actions can they take? What will be the outcome? The other party and the other people who want to see a reasonable outcome may go public.
  • Ask what will happen if misuse of power is exposed.

Making known what will happen

  • Be very clear about what the process looks like, what the role of the facilitator is (neutral, taking the side of justice, not parties), what interventions the facilitator might make.
  • Sensitively address the use of power openly. Ask how it can impact the fairness of the outcome.
  • Ask the more powerful party what he wants to achieve. This can help you to find out about their underlying interests.
  • Explain what a facilitator can do if power is asserted (stop process and start litigation, go public).
  • Make it public when the more powerful person does not cooperate (leaflet on bulletin board at church, mosque, etc; media like local newspapers, television, etc; other public places).

Emphasise neutrality

  • Keep emphasising neutrality so the more powerful parties do not see the facilitator as biased
  • Refer to neutral information. Explain calmly. Do not to get into an argument.

General motto for the facilitator: "empower them both! 

Research evidence

 Evidence from practice

  • Emphasize neutrality: Facilitators in Egypt, Rwanda, Mali, Egypt and Bangladesh, all use their one neutrality the equalize power differences
  • Religious pressure: In Egypt and Cambodia facilitators sometimes use religious arguments to warn a party who want to power in a negative way
  • Involving even more powerful third parties: To break the power of a party a facilitator in Cambodia would not hesitate to ask for the support of an even more powerful party. In Azerbaijan, lawyers for Praxis might approach a parties employer to try and eliminate a power imbalance. They are careful to ensure that the 3rd party is not someone who has an interest in the case, however.

Evidence from handbooks

  • Equal amount of witnesses and supporters for both parties
  • Both parties have equal speaking time and opportunity to deliver input to the process
  • Treat parties equal and demand they treat each other equal
  • Empowerment: stimulate the autonomy of parties by letting them decide
  • Make sure all parties contribute to the formulation of a solution
  • Also do not let take one party use a victim role to use power

Toolkit Mediation, Schonewille, M., 2007, p 45

Checklist empowerment

  • Are both parties equally stimulated to take part in the process?
  • Did all people treat each other with respect and had all equal opportunities to contribute to the result?
  • Do all parties feel responsible for the start and continuation of the conflict?
  • Do parties know what their interests are and did they ‘discover’ this themselves?
  • Is the chosen solution developed by the parties and do both feel responsible for its success?
  • Is the agreement written in a language that both parties use themselves and can they recognize themselves in it?
  • Have you as a mediator been able to defer your own opinion and prejudices
  • Is the conflict solved and do the parties comply with the agreement?

Toolkit Mediation, Schonewille, M., 2007, p 47

Evidence from literature

Reality checking all the likely consequences of a proposed course of action, including the long term consequences of using their power unfairly during the mediation, creating doubts in the minds of the parties over ‘the facts, the law, the evidence and their likelihood of their being successful in litigation.

Boulle L, (2001). 'Mediation: Skills and Techniques' Butterworths Skills Series, 181 p 227.

Reflect on whether the process is ‘fair’ after using a series of questions to focus attention on the parties’ abilities to negotiate.

Severens, K. (1998) Mediation Manual (IINCM, 1998) (adapted by) Sourdin, T., in ‘Conciliation Processes’ LEADR – The Third Millennium Conference

To achieve equalisation of power:

  • Create doubt about powers of stronger party and assist weaker party to use powers of which they were unaware
  • Intake and screening
  • Exchange of information
  • Equality of speaking time
  • Conducting dialogue through the mediator rather than directly
  • Using option cooling off period
  • Enforcement of mediation guidelines
  • Use of separate meetings

Boulle, L., & Nesic, M. (2001) Mediation: Principles, Process, Practice. Butterworths, London:UK

Best practices