Traditionally, as we all know, mediators were identified as neutral third parties and mediation itself was defined as involving the intervention of a third party neutral. Neutrality has been widely criticised to the extent that it no longer appears as a defining feature or even an ethical requirement in the National Mediation Accreditation Standards (NMAS). An early construction of the idea of neutrality was that it meant mediators exercised no power in mediation.
We have come along way from this early view about power in mediation. Scholarly critique and practitioners’ reflections have debunked the idea that mediators have no power. Questions remain however about the sources of mediator power and the proper limits of its exercise. Traditionally mediators attributed power to the process of mediation itself, and constructed the parties’ voluntary consent to engaging in the process as giving them authority (legitimised power) to control that process. This approach was consistent with constructing mediators as neutral as to the content of mediation but in control of the process.
The distinction between process and content in mediation no longer appears in the NMAS. This change is consistent with the development of ‘newer’ models of mediation, namely, narrative and transformative models, extending the traditional problem-solving (facilitative and evaluative) models. Postmodern constructions of power are more consistent with these later models. At the same time facilitative and evaluative models are the most commonly practised, with practitioners’ sometimes incorporating ‘aspects’ of narrative and transformative approaches.
Authority to mediate is increasingly mandated by legislation. But the scope of mediator power is only loosely delineated in the broad definitions of mediation itself. Questions about the mediator’s role in ensuring substantive fairness in addition to procedural fairness raise further questions about the scope of mediator power and its proper exercise. Questions of mediator ethics equally pose questions about how much power mediators should have and how they should exercise it.
What is the basis of mediator power? What is its proper scope? How should it be constrained and directed?
What are your thoughts?
Some food for thought (a few selected,but not an exhaustive list of relevant,references):
Astor, H. 2005, “Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner”, Australasian Dispute Resolution Journal, Vol. 16, pp. 30-9.
Bagshaw, D. 2003, “Language, Power and Knowledge”, Australasian Dispute Resolution Journal, Vol. 14, pp. 130-41.
Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review, Vol. 14, pp. 285-318.
Bayliss, C. and Carroll, R. 2005, “Power Issues in Mediation”, ADR Bulletin, Vol. 7, no. 8, pp. 134-38.
Field, R. 1996, “Mediation and the Art of Power (Im)balancing”, QUT Law and Justice Journal, Vol. 12, pp. 264-73.
Field, R. 2000, “Neutrality and Power: Myths and Reality”, The ADR Bulletin, Vol. 3, No. 1, pp. 16-20.
Mayer, B. 1987, “The Dynamics of Power in Mediation”, Mediation Quarterly, Vol. 16, pp. 75-86.
Wade, J. 1994, “Forms of Power in Family Mediation and Negotiation”, Australian Journal of Family Law, Vol. 6, pp. 40-57.