Balance of Power between Disputing Parties. One of the criticisms of mediation discussed above (section 1.3.2) was that less powerful parties may be more vulnerable in the mediation process than they might be in litigation. Certainly, the issue of power disparities between disputants in mediation has generated much comment in the mediation literature. A number of mediators and writers on the subject have also emphasised the need for a perceived balance of power between the disputing parties, for mediation to be successful. As one practioner put it in relation to environmental disputes, “the ‘public interest’ side must be able to offset the ‘deep pocket’ of business or government”.129 Nonetheless, mediation has been used successfully in disputes where power disparities existed. Some mediators justify this by reference to mediation’s voluntary character, pointing out that participation in and agreement reached through mediation is a matter of voluntary choice. Other authors have even argued that the mediation process may be particularly suited to addressing and redressing power disparities between disputants.130 Power disparities are frequently a problem in environmental disputes, where economically and politically powerful government agencies or companies are sometimes at loggerheads with often under resourced environmental or citizen organisations. Whether or not an adequate balance of power can be achieved between disputing parties will depend upon a diversity of factors, including the strength of civil society, the influence of the media or the political influence held by industry lobby groups. If a party is in a position sufficiently powerful to achieve its aims unilaterally, then may lack motivation to undertake mediation in the first place. The difficulty inherent in this requirement or precondition is its ambiguity and somewhat subjective nature. Clear criteria have not yet been identified which could be used to assess the so- 128 Boulle, Mediation: Principles, Process, Practice, p79. 129 Xxx Xxxxxx, "Confessions of an Environmental Litigator," Environmental Consensus, no. Spring (1980). 130 X Xxxxx and X Xxxxx, "Dealing with Power Imbalances in the Mediation of Interpersonal Disputes," MQ 6 (1984). cited in Boulle, Mediation: Principles, Process, Practice, p72. called ‘balance of power’ and indeed such criteria would be difficult to formulate due to the diversity of variables affecting a parties “power” in relation to others. Although ambiguous, it is nonetheless a consideration borne in mind...
