Power Asymmetries in Mediation: When One Party Holds All the Cards

Mediation is often framed as a neutral, balanced process. Yet in many corporate and inter-organizational disputes, power asymmetries are not just present — they define the entire negotiation dynamic. When one party holds more legal resources, reputational influence, or economic leverage, can mediation still function fairly? This article examines how professional mediation can address, and even neutralize, structural inequalities between disputants.

1. Understanding Power in Mediation Contexts

Power asymmetry occurs when one party in a dispute possesses a structural advantage over the other. This can manifest as:

• Economic power, where one party depends financially on the other (e.g. subcontractor vs. multinational).

• Informational power, where one side controls critical data or legal expertise.

• Positional power, or hierarchical authority (e.g. government vs. vendor).

• Relational power, when one party is more experienced or socially connected within a sector.

Unlike litigation, where formal procedures may somewhat compensate for imbalance, mediation relies heavily on voluntary participation, openness, and the parties’ own ability to advocate for themselves. This makes asymmetries more influential — and potentially more damaging — if not addressed.

2. The Ethical Challenge for Mediators

While neutrality is a cornerstone of mediation, scholars like Boulle (2005) and Bush & Folger (2004) argue that neutrality in the face of inequality can inadvertently reinforce injustice. The mediator’s role, therefore, includes a subtle form of active balance maintenance:

• Procedural equalization: Ensuring both parties understand the process and have equal time to speak.

• Empowerment strategies: Supporting the weaker party in articulating their interests.

• Caucus techniques: Using private sessions to probe and correct perceived dominance or intimidation.

This does not mean taking sides. It means managing dynamics to allow each side to participate meaningfully.

3. Case Study: Vendor vs. Government Agency

A real-world scenario (anonymized): a small software vendor entered a dispute with a government body over contract scope and delays. The agency had legal counsel, procurement officers, and political weight. The vendor had a project manager and a lawyer with limited public sector experience.

Without mediation, the vendor risked bankruptcy; with litigation, years of delay and reputational damage loomed. In mediation, the mediator used:

• Pre-meeting preparation with the vendor to clarify arguments.

• A facilitative structure with strict time equity.

• Explicit acknowledgement of the power imbalance in framing the agenda.

The result: a phased resolution, partial payment, and a closed-door review of procurement processes — preserving the relationship and allowing lessons learned.

4. Academic Insight: The Transformative Approach

Bush and Folger’s transformative mediation model suggests that conflict resolution should focus not just on outcomes but on empowerment and recognition. This means:

• Helping parties regain clarity, voice, and agency.

• Encouraging mutual recognition of each other’s perspectives, even if consensus is unreachable.

In asymmetric cases, this model has been shown to reduce post-settlement resentment and increase compliance with agreements, especially in cases involving perceived injustice.

5. Business Risk: The Hidden Cost of Imbalance

When companies resolve disputes without addressing asymmetry, the risk is twofold:

• Short-term settlements that fail: If the weaker party feels cornered, compliance drops.

• Long-term reputational harm: Powerful parties seen as abusive risk losing trust — internally and externally.

Fairness is not just a principle. It’s a strategic asset.

6. Best Practices for Mediators and Organizations

To mediate effectively when one party holds more power:

• Acknowledge asymmetry upfront. Denial fosters distrust.

• Prepare both sides separately. Especially the weaker party.

• Design the process deliberately. Control speaking time, frame issues neutrally.

• Use joint and private sessions. To defuse dominance and clarify motives.

• Encourage external advisors. Let the weaker party bring support if needed.

For organizations regularly involved in mediation (e.g. government, multinationals), it is wise to:

• Train internal negotiators in power-sensitive approaches.

• Invest in mediation not just as dispute resolution, but as part of compliance and ethics strategy.

• Monitor outcomes of mediated cases for bias patterns.

  
  

Conclusion: Fair Mediation Requires Strategic Neutrality

True neutrality does not mean blind symmetry. It means creating a process where both sides can participate fully, despite structural differences. In high-stakes corporate or public disputes, mediators must combine ethical clarity with procedural skill to ensure that justice, and not just agreement, prevails.

As power asymmetries become more visible in our globalized, interdependent world, mediation must evolve. Not by abandoning neutrality, but by making it smarter.