I am a mediator. I am supposed to be a neutral party to the case and merely help the parties come up with an agreement between the two of them, but I also should be sure that the agreement is something that they parties can both live with later and actually follow through on. What good is it to get an agreement that day if later there will, yet again, just be an argument and issues?
I got a call from the school once. "Your daughter was stabbed with a pencil by another kid. She is okay but the little girl who did it is in the office and in trouble," was the message from the school. Hummmm... I didn't doubt it happened and called the school. My daughter did not get in trouble. She was a good kid and as a nice kid, what happened that would "cause" this other girl to stab her?
Apparently, having heard the other side of the story, my daughter and another friend would not let the stabbing child play with them. They were not just ignoring her, but were pretending she was a "bush" and "picking berries off of her." 'Big deal,' you might think but as a kid who is in second grade, that was terrible to do and have done. I asked if I could go to the school and speak to my daughter. Of course that was fine.
I did not stand up for my daughter. In fact, once I determined she would "live" from her stabbing (small puncture that did not even bleed) I asked her what happened. Same story. My daughter, in my opinion, had been a bully! I ended up making her apologize to the girl who stabbed her for picking on her and the stabber cried and said she was sorry as well to my daughter and to me. Guess what little girls, years later, are still great friends?
2. No eye contact. The underinflated party will usually keep their eyes down and not make eye contact with anyone, including the mediator.
4. Body language. Underinflated parties will often have sloping shoulders, may put their head in their hands, and/or sigh. They often turn their body away from the other party.
5. Sudden emotional changes. Occasionally the party will suddenly lash out in anger and then return to their silence.
Once it is apparently clear to you as a mediator that there is a definite power difference, how can you still stay neutral and yet also allow the parties to come up with an agreement that will work? Both parties might not be "happy," but you want the outcome will be "acceptable" and to be followed.
As the mediator you should have already explained to the parties at the beginning of the process that there are a few reasons confidentiality may be breached. If one or both parties threaten themselves or anyone else, you need to stop the mediation and inform the proper people. Mediators also have a few other reasons in which they need to not keep a mediation topic confidential, including threatening to commit a felony.
1. Separate the parties. Especially if it is clear there is a power unbalance between the parties, separate them. Sometimes you may be able to determine this before meeting but not always. If the powerful party is being very loud, you may want to be sure to put them in a room far away while you talk to the parties. I usually start with the underinflated party in this sort of situation in order to give them a sense that I really do want to hear "their side" of things, and trust me - I do!
2. Know the law. If you can determine what the laws are in the area of dispute, it may help. Obviously you cannot give legal advise as a mediator, but you can tell the parties what the statutes say allowing them to make the determination as to what they want to risk. I have had cases where the powerful party insists on a portion of the agreement that is clearly against the working of a statute. Sometimes you can insist that you will not add that portion explaining why. Usually, if you can back up your reason as a mediator, they will back down. This is not adding something because it is not "fair," to a party, however. That is a fine line you need to draw on as a mediator and as a neutral party.
4. Let the parties think before signing. Truthfully, I really do not like this approach on mediations, for the most part. I find it often leads to there NOT being an agreement once the parties have a chance to walk away and convince themselves again they have a strong case and can "win" in court. However, when one party is clearly overpowered by the other party or the mediation itself, it might be worthwhile to let them all walk away and reschedule a time in a few days to return.
5. End the Mediation. I did my final paper in law school about mandatory mediations in divorce and how I felt it was not good to make it a blanket rule. If there is abuse or obvious power difference between the parties, then mediation will not be helpful but might even be detrimental to one or both parties. If you believe there is some sort of abuse, whether it is mental, physical, emotional, etc., then you need to stop the mediation.
ADD COMMENTS: What kind of situations have you been in with an obvious power difference and how did you handle it?