Date of this Version

6-13-1994

Document Type

Journal Article

Publication Details

This document has been peer reviewed.

Pre-publication print

Wade, John (1994) Forms of Power in Family Mediation and Negotiation is published in the Australian Journal of Family Law, Sydney, Butterworths, Volume 8, 1994, pp. 40-57.

Reproduced with permission. For any future reproduction of this article please contact LexisNexis, Australia

Abstract

The aim of this paper is to demonstrate that the concept of “power” in negotiation or mediation is complex. Breaking down this platitudinous and self-evident proposition will hopefully lead first to a greater willingness to articulate and hypothesise openly concerning sources of power in (family) disputes. The writer is convinced that mediators and negotiators who openly discuss sources of power will be more successful in educating disputants and assisting with constructive decisionmaking. Secondly, the phrase “inequality of bargaining power” is repeated ad nauseam as a reason for alleging the ethical unsuitability of certain types of negotiations or mediations. An analysis of power suggests that this phrase should not be used blithely. Power imbalances are more complex than first meets the eye, are always present, and are not necessarily adjusted satisfactorily by switching to another procedure. Many lawyers involved in family litigotiation are well aware of various forms of power imbalance in the sometimes (ironically) idealised court process. The label of “inequality of bargaining power” is fashionably epidemic; but the remedy may often (though not always) be worse then the disease. Nevertheless, concerns about inequality of bargaining power necessarily escalate as mediation becomes increasingly mandatory, and is staffed by under-trained, overworked and underpaid mediators. A number of outstanding books and articles have been written on the topic of “power” in negotiation and mediation. Particularly notable are the commentaries of Bernie Mayer and Christopher Moore. This paper walks in the footprints of those two writers and attempts to underline certain insights described by them.

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