DAVID AND GOLIATH: MEDIATING AMID A POWER IMBALANCE
The story of David and Goliath from the Old Testament’s book of Samuel is often pressed into service as a metaphor for overcoming seemingly insurmountable odds.
Although such deeds are commonplace in myth and legend, when it comes to the real world, such exploits are largely unrealistic, particularly in the context of a business dispute where the party that holds a significant advantage in terms of finances and legal advice is the one likeliest to prevail.
Where a dispute has gone to mediation – a process which is intended to provide a neutral, fair environment for the resolution of disputes – power dynamics are very much in evidence. In some cases, a power imbalance can be so great that mediation may be hindered without intervention by the mediator to combat it, or in more extreme cases, may simply be inappropriate.
“Power imbalances are a fact of life,” vouches Barney Jordaan, professor of management practice in negotiation and mediation at Vlerick Business School. “Power can take different forms and is always contextual and contingent. It is a factor in all interpersonal relations, and it has a significant effect on even the most cooperative dispute resolution process.
“Thus, for mediators, the fact that one party has more power than the other should not present a problem: power becomes problematic if its exercise by one party affects the other party’s right of self-determination,” he continues. “This would typically happen when the dynamics between parties means that a party is unable to speak for themselves or is unable to reach a voluntary agreement.”
It is also the case that power will often be unstated or unclear, and more than one kind of power may be held by the same individual. Parties may also underestimate or overestimate the amount of power held by either themselves or the other faction in the mediation.
Jul-Sep 2022 issue
Fraser Tennant