Power Imbalances in Mediation: Decreasing the Problem by Providing Access to Legal Information

by Susan Perkerson Millradt

I. Introduction

"Is that legal for my landlord to lock me out of my own apartment?" asks a party to mediation of the mediator. [1]  Typically the mediator responds, "I am a mediator and I cannot give you legal advice. If you would like legal advice, you should consult an attorney." [2]  The tenant, lacking the funds for an attorney, continues with the mediation. The landlord will often have had the benefit of legal advice and will be aware of each side's legal rights. Is this fair? Are we, as a society, going to be content with an outcome that was achieved in ignorance of the law? The goal of this paper is to design a mediation program that will increase fairness when power imbalances are present without undercutting the benefits of mediation.

II. The Problem of Power Imbalances

When one side has access to legal advice and the other side does not, a power imbalance arises based on the legal knowledge of the parties. Power imbalances can often lead to agreements that some might consider unfair because knowledge of the law is relevant to the settlement of the dispute. [3]  The legal rights of the parties are, "in some form or shape, the subject matter of the bargaining." [4]  This is not to suggest that legal rights should be the dispositive factor in a mediation session. [5]  The "parties will assent or disregard their legal rights in proportion to the value they place on" these legal rights versus the value that they place on other interests, such as the relationship, his or her reputation, the need to vent, or the desire for an apology. [6]  When a party is unaware of his or her legal rights, he or she does not have the ability to make informed decisions about trade-offs between her possible legal rights and her other interests. [7]  If the unrepresented party asks the mediator a legal question, the vast majority of mediators refuse to answer it and suggest that the party seek the advice of an attorney if the question is one of great concern. [8]  Such a solution seems inadequate if the party is too poor to pay for legal advice.

The choice of mediators to side step the problem of this power imbalance has left mediation open to the criticism that it has become a means for one party to exploit another. [9]  Some critics even suggest that mediation may not be the best avenue for parties to use when power imbalances are present. [10]  Critics contend that mediation hurts individuals when they accept unjust mediated agreements, and hurts the poor and disempowered because they will not ban together and mobilize for change when they are continually airing out their disputes in a confidential setting. [11]  Thus, mediation's inability to deal adequately with power imbalances undermines its legitimacy as an equitable alternative for the resolution of disputes. [12] 

Mediation program designers should strive to increase the fairness in mediation, especially when large power imbalances exist between the parties. To increase fairness in mediation, program designers should increase the parties' ability to enter into a mediated agreement with informed consent. Informed consent prepares the parties to participate voluntarily and intelligently in the mediation process. [13]  With legal power imbalances in mind, informed consent should mean that both parties have some idea of their legal rights. However, in increasing fairness in mediation, program designers need to be careful not to undermine the traditional benefits of mediation – objective and subjective mediator neutrality, party self-determination, and confidentiality.

III. Evaluating the Current Approaches to Increase Fairness

Finding a way to increase fairness by decreasing power imbalances that result from unequal legal knowledge without undercutting the benefits of mediation can be a difficult task. Some ways suggested to increase fairness in mediated agreements are mediator accountability for fair agreements, judicial review of mediated agreements, and authorizing mediators to give the parties legal information. The strengths and weaknesses of these options should be evaluated in terms of how they affect the benefits of mediation and whether they increase fairness.

A. Mediator Accountability for Fairness

One method to increase fairness and decrease the impact of bargaining imbalances is to hold the mediator accountable for the fairness of the outcome of the mediation. [14]  If the mediated agreement is not fair, the mediator could be sued for damages by the harmed party.

The benefit of mediator accountability is that there is another person that is accountable for the fairness of the agreement. The mediator is more likely to ensure that the agreement is fair in order to avoid being sued. However, determining when an agreement is fair and optimal can be difficult because the mediator lacks complete knowledge about the parties' subjective goals and interests. [15]  Furthermore, it is often difficult enough for mediator to get disputing parties to agree to anything; and the mediator may not be able to mediate the dispute effectively if he or she must simultaneously worry about ensuring the agreement is objectively fair. [16] 

In addition, implementing mediator accountability undermines many of the benefits of mediation. Forcing the mediator to ensure that the agreement is fair could compromise the mediator's neutrality because the mediator will need to take a more active role in the mediation on the side of the party being "hurt" in the mediation. Such actions will make it appear that the mediator is biased towards one side. The parties' self-determination will also be harmed because the parties are no longer the only ones that are shaping the agreement. The mediator will now have a voice in the agreement because he or she is under a duty to ensure that the agreement is fair. The benefit of confidentiality could also be undermined because the mediator might consider information he or she learned in a confidential single party caucus to be relevant to the ultimate determination of fairness. In addition, if the mediator is sued, the mediator may want to break the promise of confidentiality and use the information learned in the mediation to defend against the allegation that the mediator breached his or her duty to ensure a fair agreement.

B. Judicial Review of Mediated Agreements

Another proposal to increase fairness in mediated agreements is to have a judge review the agreement for fairness. [17]  The benefit of this proposal is that judicial oversight would catch blatantly unfair agreements. However, it will be difficult for a judge to determine if the agreement is fair by just looking at the settlement agreement and without knowing anything about the discussions that went into creating the agreement. Therefore, it is likely this proposal will not increase fairness because the judge will just rubber stamp the agreement. The other possibility is that the judge would demand the mediator to make a report about the mediation session, which would undermine the benefits of mediator neutrality, self-determination, and confidentiality in the same way as if the mediator were accountable for the outcome. [18] 

C. Providing Legal Information during the Mediation Session

Another way to combat power imbalances based upon unequal access to an attorney is to allow the mediator to provide legal information. Mediation Works, Inc. incorporates the law into its mediations regarding evictions through the use of an "authoritative source" that contains legal information about landlord tenant law written in laymen terms. [19]  The mediator informs the parties about this authoritative source in the opening statement. [20]  In this program, the mediator chooses the relevant sections of law to read to the parties from the "authoritative source," but only does so when the parties ask the mediator a specific legal question. [21]  The mediators cannot introduce the law into mediation without being asked to do so by the parties, nor can the mediator explain the law to the parties. [22]

This program could be considered to undermine the benefits of mediator neutrality and party self-determination. While the mediator only offers legal information when a party asks the mediator a legal question, the mediator does choose which sections of the law to read to the parties. The mediator has some room to decide which sections are relevant, which could compromise the mediator's objective neutrality. In addition, a party may believe the mediator is biased if the relevant law is all favorable to the other side. However, reading the information from a manual helps maintain mediator neutrality because the mediator is acting as a conduit for the legal information and not as its source. In addition, self-determination could be undermined if the parties focus too much on the law or misinterpret the law when they apply it to their case.

The main problem with this program is that it does not actually help to decrease bargaining imbalances. In practice, the neutral manual is rarely used by the parties because the burden of introducing the law into the mediation falls on the parties that are often so ignorant of the law that they cannot identify legal issues that would be important to them. [23]

Another example of providing legal information to the parties occurs at The Center for Mediation in Law which provides mediation services primarily in divorce or commercial cases. [24]  In these mediations, the lawyer-mediator introduces the law to the parties and will tell the parties exactly what the law says about their case. Mediators explain the law as a practical alternative or as an expression of societal norms, but stress that the law is not dispositive and that the parties' values are the highest priority. [25]

In terms of fairness, these mediated agreements are more likely to be created with full informed consent because each side is receiving a legal evaluation by a lawyer-mediator. In this way, it is ensured that the legal advice is actually getting to each party and that the parties are bargaining with legal knowledge. However, the Center for Mediation in Law's program achieves this result at the expense of compromising mediator neutrality. The program poses a greater risk that the mediator will be perceived as biased because the mediators have a much more active role in introducing the law. The mediator is actually commenting on the strengths and weaknesses of the parties' case and deciding what laws are relevant and when to introduce this information in the mediation.

IV. My Proposal

None of the above mentioned approaches to increasing fairness in mediation avoid undermining the benefits of mediation. My proposal is to create a short video (or other audio/visual media) and a written manual that will provide pro se parties with procedural and substantive legal information.

This video should be used in areas of law that are particularly fraught with power imbalances based on access to legal information, such as landlord tenant law. The goal of the short video is to give a party that would otherwise have no legal knowledge when bargaining during mediation, some legal knowledge so that the disparity between the parties is not as great. This type of video should be used in areas of law that are less complex so that the major points of the law can be explained in a short period of time, approximately 15 minutes. Cases meeting this criteria would be referred by the court to mediation before trial.

The video should be incorporated into the introduction given by the mediator and played at the beginning of the mediation before the mediator asks the parties to explain the dispute. The mediator should explain that the video is used in all [fill in type of legal case] mediations and will explain some common misconceptions about how the legal process works and explain some of the legal rights that the parties may have. The mediator should tell the parties that the purpose of the video is to ensure that each side is bargaining in an informed manner so that they can create an agreement that really reflects the parties' wants and interests. The mediator should stress that the law is only one factor to consider when the parties are creating an agreement, their goals and interests are other important factors. The mediator should also explain to the parties that the video contains a list of legal information that may or may not apply to their case and that they may or may not be able to prove their case in court.

Before any legal information is provided, the video should show a disclaimer stating: "This video contains legal information about [specific state] law. The video only provides the most basic legal information and does not constitute legal advice. If you want specific legal advice applied to the facts of your case, you should consult an attorney." [26]

The goal of the procedural section of the video is to explain common misconceptions about the legal system that could create an impasse to settlement because the parties are not accurately calculating the costs and benefits of settlement. The procedural legal information on the video should include information about the legal system and how it operates. Information that would be helpful for the parties to know when evaluating their options would be basic legal information such as: court costs, subpoena fees, typical allocation of attorney's fees (including the fact that that normally each side pays for their own attorney's fees unless there is a statute which says otherwise), a range of attorney fees, average length of time it takes to get on the court's docket, the average length of time that passes between trial and judgment, and the inability or limitations on corporation's ability to act as pro se.

The substantive legal information contained in the video should be explained in layman terms and include the basic rights, obligations, and duties of each side. The legal information in the video should be balanced and neutral. For example, if the video contained information about landlord tenant law, then half of the legal information in the video would apply to the landlord, and half to the tenant. The information should be written and read in a neutral tone and should alternate between each side so it appears more fair and balanced. For example, if there is a list of the duties of a landlord, then following it should be a list of the duties of a tenant. The possible results of actions taken by either party should be stated and explained, but with the caveat that the result in court would depend on the severity of the action and the party's ability to prove it.

V. Deflating Objections to My Proposal

The next sections explain criticisms of giving legal information in mediation in general and of my proposal in particular. [27]  Following each criticism is an explanation of how my proposal works to avoid the problems the critics raise.

A. Objection: Using a Video to Provide Legal information Will Harm Party Self-determination.

Some commentators believe that providing legal information can harm party autonomy and self-determination because reference to the law will causes the parties to focus primarily on the law to the detriment of their own interests. [28]  Others are concerned that the parties will gain an inflated sense of their legal rights, causing them to become so rooted in their viewpoint that settlement becomes virtually impossible. [29]  Another concern is that the legal information will be too broad and the parties will receive an incorrect impression of the law.

My proposal uses the role of the mediator to help ensure that party self-determination is not undermined by parties over-emphasizing the law. The mediator explains to the parties that the legal information is being provided as only one relevant factor to consider when creating their own agreement. In addition, the mediator's traditional role of probing for the parties' interests and finding other reasons the parties may have to settle now will also help to ensure that the parties do not focus exclusively on the law. To help the parties gain a realistic picture of the law and not to become over-empowered, the video contains balanced legal information. When a party learns about a piece of legal information that might help his or her case, he or she may also learn about a piece of legal information that hurts his or her position. In addition, the video and the mediator make it clear that it is never certain how the court will apply the law and that recovery depends upon actual proof. Stressing the uncertainty of how the law will be applied, the need for evidence in court, and other reasons parties have to settle will help stop parties from becoming so empowered that they are unwilling to bend enough to settle the dispute.

To avoid the problem that the legal information provided will be too broad to give parties an adequate view of their legal rights, the video offers a disclaimer that the legal information in the video is only supposed to give the parties a basic sense of their possible legal rights. The video also stresses that if a party wants legal advice, he or she should consult an attorney. Providing this disclaimer should help the parties to realize that they are receiving very limited legal information. However, if the parties do gain an inaccurate view of the law or misapply the law to their case, my proposal does not allow the mediator to correct this misconception and interpret the law correctly for the parties because doing so could harm mediator neutrality or possibly result in the unauthorized practice of law. The video will explain the law as clearly as possible, which should minimize some risk that the parties will grossly misinterpret the law. While misinterpreting the law can harm the ability to reach a settlement, bargaining in ignorance of the law can also harm one party and unfairly advantage the other. At least by watching the video the uninformed party would have a chance to be informed about the law, instead of the certainty that he or she would be bargaining in complete ignorance of the law.

A benefit of my proposal is that providing legal information to the parties can actually enhance self-determination because knowledge of the legal rights can help the parties make more informed decisions. [30]  Providing legal information provides another source of bargaining chips parties can add to their interests when negotiating possible outcomes. [31]  Now when parties are bargaining they can take into account their possible legal rights, as well as their own sense of ethics, morality, needs and sense of personal fairness. [32]

B. Objection: Harms Mediator Neutrality and the Impartiality of the Mediation Process

Commentators are concerned that providing legal information will undermine mediator neutrality because information about relevant law helps one party and harms the other. [33]  They are also concerned that the impartiality of the entire mediation process is compromised when legal information will arguably benefit the ignorant party more than the knowledgeable one.

My proposal helps to minimize the risks of undermining mediator neutrality by having the mediator present balanced legal information through a video at the beginning of the mediation session. The subjective neutrality of the mediator is less compromised by playing the video at the beginning of the mediation session because the parties have not had a chance to "try and get the mediator on his or her side." By providing the legal information through the video only, it is possible to ensure that the amount of legal information contained in the video may equally help and harm each side. The mediator is not involved in giving the information directly to the parties and is instead acting as a conduit for pre-prepared legal information. Furthermore, after the video is played, the mediator is not allowed to expand upon the legal information in the video or remind the parties of the legal information during the mediation when it might be relevant. Therefore, the parties should not perceive the mediator as interfering in the mediation or as helping out one side over the other.

The impartiality of mediation is not destroyed by my proposal because the legal information is provided neutrally and could benefit either party. The impartiality of a process that allows one party to benefit from another party's inability to gain legal knowledge is already suspect. According to one scholar, "[t]he notion of impartiality should compel judges and mediators to assist unrepresented parties, rather than prevent them from doing so." [34]  By providing the parties with legal information, which arguably helps the uninformed side more than the other, my proposal is attempting to correct a bargaining imbalance that is unfair and hurts the credibility of the mediation process as a just alternative to litigation.

C. Objection: Mediation is an Alternative to Litigation and Should Be Separate From the Law

Some commentators think introducing law into mediation is improper because mediation is an alternative to litigation and the law should not have a role in a mediation session. [35]  My response is that the law is a relevant factor in mediation because the parties either do rely on the law or want to rely on the law as a factor to the dispute. [36]  In many mediation sessions the parties ask the mediator about the law. [37]  In court referred mediation, the parties come into court expecting the law to resolve their dispute and referring the parties to mediation does not necessarily diminish the importance of the law in the parties' eyes. [38]  In addition, the legal rights usually are in some manner the subject matter of the dispute. [39]  Therefore, my proposal is not adding the law into mediation because it is already a part of mediation.

D. Objection: This Proposal Does Not Correct Bargaining Imbalances or Increase Fairness.

Critics of my proposal do not believe it will correct bargaining imbalances and increase fairness because the legal information is so broad as to be unhelpful and parties would be better off seeking advice from an attorney. They are also concerned that the parties will not pay attention to the video.

The goal of the proposal is to reduce, not completely correct, bargaining imbalances based upon unequal knowledge of the law. Providing an overview of relevant legal information will give an ignorant party some knowledge of his or her legal rights, but it will not be equal to the other side's ability to receive specific legal advice form a lawyer. However, for an unrepresented party, getting legal information from the video and some idea of his or her legal rights is better than the alternative – which is to bargain in complete ignorance of the law.

The other major goal of the proposal is not only to provide legal information to the parties but to make sure that the legal information actually is received by the parties so that any mediated agreement they reach will be agreed to with informed consent. Distributing the legal information in audio format ensures that the legal information reaches people that may be illiterate. Incorporating watching the video in the beginning of the mediation session ensures that both parties hear the legal information and avoids the problem of leaving it up to the parties to ask the mediator about the law on a certain subject that might be listed in the manual. [40]  It is in the parties own best interests to pay attention to the video and the video is kept fairly short to allow the parties to digest the video's contents.

E. Objection: Video Discourages Seeking Legal Advice and Unnecessarily Aids Parties that Have Voluntarily Chosen Not to Seek Legal Advice.

Some people are concerned that the use of my video will discourage parties from seeking legal advice. They are concerned that a video containing limited legal information will be viewed as a good substitute for legal advice. Others are concerned that the video hurts an advantage that one party has obtained from getting legal advice before a mediation session.

The video stresses that it is not a substitute for legal advice and that the legal information contained on it is an overview of the relevant law and is very limited. The video suggests that if the parties are concerned with their legal rights they should not rely solely on the video, but instead should seek legal counsel. Therefore, it is unlikely that a video containing legal information will be considered by the parties as a perfect substitute for legal advice.

The decision not to obtain legal advice should not be considered voluntary. [41]  The reality is that some people do not have the option of receiving legal advice because they are either too poor to afford it or because legal aid cannot handle every case. In addition, the party that received advice from an attorney or is represented in the mediation still has an advantage because he or she has received legal advice directly applied to the facts of his or her case. The other party is getting the best available alternative to bargaining in ignorance of the law.

VI. Conclusion

Ideally everyone should have access to legal advice so that there would not be any bargaining imbalances in mediation predicated upon unequal access to an attorney. Until this is feasible, the next best alternative is to provide the parties with relevant legal information during mediation. Of all the alternatives discussed in this paper to insure fairer agreements in the face of bargaining imbalances based on unequal access to legal advice, my proposal is the most successful at increasing fairness without undermining the benefits of mediation.

[1] The Lock-Out (New Year Productions, 1987).

[2] Id.

[3] Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 Wash. U. L. Q. 47, 64 (1996).

[4] Id. at 65.

[5] Id.

[6] Id. at 65.

[7] Id. at 66.

[8] Russell Engler, And Justice for all – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, 2009 (1999).

[9] Id. at 1988.

[10] See Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 34 (1982); Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes 156 (2003)(quoting Richard Abel, Informalism: A Tactical Equivalent to Law, 19 Clearinghouse Rev. 375 (1985)); Goldberg, supra, at 157 (quoting Richard Delgado, ADR and the Dispossessed: Recent Books About the Deformalization Movement, 13 Law & Soc. Inquiry 145 (1988)). But see Joel Kurtzberg & Jamie Henikoff, Freeing the Parties From the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. Disp. Resol., 53, 54 (1997)(suggesting that individuals fare slightly better in mediation than in adjudication in landlord/tenant cases).

[11] Kurtzberg & Henikoff, supra note 10, at 53-54 (discussing objections to mediation).

[12] Id.

[13] Jacqueline M. Nolan-Haley, Informed Consent in Mediation: A Guiding Principle for Truly Educated Decision-making, 74 Notre Dame L. Rev. 775 (1999).

[14] Note: The Life of the Mediator – to Be or Not to Be (Accountable) in Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes 175 (2003)

[15]. Id.

[16] Id. at 177-78.

[17] Goldberg, supra note 14, at 183 ( Maine requires judicial review of all mediated agreements.).

[18] The authors of the Uniform Mediation Act (UMA) felt that mediator reports were so detrimental to the values of mediation that the UMA expressly prohibits them. Uniform Mediation Act §7 (amended 2003).

[19] Kurtzberg & Henikoff, supra note 10, at 94.

[20] Id.

[21] Id.

[22] Kurtzberg & Henikoff, supra note 10, at 94.

[23] Id.

[24] Id. at 111.

[25] Id.

[26] This disclaimer is based off the example found at the bottom of the Ohio State Student Housing Legal Clinic, Reduced Rental Value Worksheet (2002).

[27] These criticisms are gathered from respected scholars in the field of mediation as well as constructive criticism received from several students at the Ohio State University Moritz College of Law.

[28] James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer Mediator, 38 S. Tex. L. Rev. 769, 776 (1997)(citing Kimberlee K. Kovach & Lela P. Love, " Evaluative" Mediation Is an Oxymoron, 14 Alternatives to the High Cost of Litig. 31 (1996)).

[29] Constructive feedback from students at OSU Moritz College of Law.

[30]See Nolan-Haley, supra note 3, at 91.

[31] Stark, supra note 28, at 776 (citing Ellen Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 Va. J. Soc. Pol'y & L. 87, 107-08 (1993)).

[32] Nolan-Haley, supra note 3, at 91.

[33] Stark, supra note 28, at 776 (citing Kovach & Love, supra note 28).

[34] Engler, supra note 8, at 1990.

[35] Stark, supra note 28, at 775 (citing Waldman, supra note 31).

[36] This is an observation from my own experience as a mediator and information provided in a class room setting from other mediators.

[37] Id.

[38] Nolan-Haley, supra note 3, at 64.

[39] Id. at 65.

[40] Id. at 81.

[41] Engler, supra note 8, at 2027.