ADR Power Dynamics & Neutrality 2 — Questions and Answers
Question 1: A party to mediation repeatedly interrupts and talks over the other party. What is the mediator's BEST response to address this power dynamic?
- Ignore it to avoid appearing biased toward either party
- Establish ground rules that allow each party uninterrupted speaking time (Correct answer)
- Ask the dominant party to leave the session temporarily
- Allow it because assertiveness is a legitimate negotiation tactic
Correct answer: Establish ground rules that allow each party uninterrupted speaking time
Establishing ground rules for uninterrupted speaking time is a neutral, procedural intervention that levels the playing field without favoring either party.
Question 2: In a workplace dispute, a supervisor mediates a conflict between two subordinates. This arrangement raises which primary concern?
- Violation of confidentiality
- Structural conflict of interest undermining neutrality (Correct answer)
- Lack of subject matter expertise
- Excessive formality in the process
Correct answer: Structural conflict of interest undermining neutrality
A supervisor mediating subordinates creates a structural conflict of interest because the power hierarchy compromises the mediator's neutrality.
Question 3: Which technique helps a mediator address a situation where one party has significantly greater legal knowledge than the other?
- Providing legal advice to the less informed party
- Caucusing privately to explain the process to the less informed party (Correct answer)
- Terminating the mediation until the weaker party gets an attorney
- Siding with the less informed party to equalize outcomes
Correct answer: Caucusing privately to explain the process to the less informed party
Private caucus allows the mediator to ensure the less informed party understands the process without providing legal advice or compromising neutrality.
Question 4: A mediator notices that one party is reluctant to speak in joint session but opens up in private caucus. What does this most likely indicate?
- The party is acting in bad faith
- A power imbalance is inhibiting open communication in joint session (Correct answer)
- The mediator is ineffective in joint session
- The party prefers arbitration over mediation
Correct answer: A power imbalance is inhibiting open communication in joint session
Reluctance in joint session but openness in caucus typically signals that the party feels intimidated or constrained by the other party's presence.
Question 5: When a mediator uses 'shuttle diplomacy' (moving between parties in separate rooms), the PRIMARY benefit in power-imbalanced cases is:
- Speeding up the mediation process
- Reducing the direct intimidation effect of face-to-face interaction (Correct answer)
- Allowing the mediator to share confidential information between parties
- Ensuring equal financial contribution to mediation costs
Correct answer: Reducing the direct intimidation effect of face-to-face interaction
Shuttle diplomacy reduces direct intimidation by eliminating face-to-face contact, which is particularly valuable when a significant power imbalance exists.
Question 6: A neutral arbitrator discovers mid-hearing that one party's attorney is a former law partner. The arbitrator should:
- Continue if the attorney-client relationship ended more than one year ago
- Immediately disclose the relationship and allow parties to decide on continuation (Correct answer)
- Recuse without disclosure to protect the attorney's privacy
- Complete the hearing and disclose afterward in the written award
Correct answer: Immediately disclose the relationship and allow parties to decide on continuation
Immediate disclosure of any prior relationship is required so parties can make an informed decision about whether to waive the conflict or seek a different arbitrator.
Question 7: Under the AAA Code of Ethics for Arbitrators, a 'party-appointed' arbitrator on a tripartite panel is MOST accurately described as:
- Fully neutral with no obligation to advocate for the appointing party
- Neutral but may consult with the appointing party prior to the hearing (Correct answer)
- A non-neutral advocate for the appointing party in all circumstances
- Required to be neutral only during deliberations, not during the hearing
Correct answer: Neutral but may consult with the appointing party prior to the hearing
Under AAA ethics, party-appointed arbitrators are generally expected to be neutral but may communicate with appointing parties before the hearing unless the parties agree otherwise.
ADR Power Dynamics & Neutrality 2
A party to mediation repeatedly interrupts and talks over the other party.
What is the mediator's BEST response to address this power dynamic?