ADR Power Dynamics & Neutrality 3 ā Questions and Answers
Question 1: A domestic violence survivor is participating in family mediation. Which approach BEST addresses the safety and power imbalance concerns?
- Proceed normally since mediation is inherently balanced
- Screen for abuse and use separate sessions or terminate if appropriate (Correct answer)
- Allow the abusive party to attend only by phone
- Require both parties to bring attorneys to equalize power
Correct answer: Screen for abuse and use separate sessions or terminate if appropriate
Screening for domestic violence and using separate sessionsāor terminating if mediation is unsafeāis the accepted best practice to protect the survivor.
Question 2: A mediator feels drawn to support a party who appears to be a victim of financial fraud. According to neutrality principles, the mediator should:
- Subtly guide the process to protect the victim
- Acknowledge the feeling internally and maintain procedural neutrality (Correct answer)
- Disclose the feeling to both parties and ask if they consent to continue
- Terminate the mediation because impartiality is impossible
Correct answer: Acknowledge the feeling internally and maintain procedural neutrality
Recognizing one's own sympathetic feelings and consciously maintaining procedural neutrality is the correct response; secret manipulation violates neutrality.
Question 3: Which scenario BEST illustrates 'content neutrality' in mediation?
- The mediator ensures both parties have equal speaking time
- The mediator refrains from evaluating the merits or fairness of the proposed settlement terms (Correct answer)
- The mediator uses the same tone of voice with both parties
- The mediator does not charge higher fees to one party
Correct answer: The mediator refrains from evaluating the merits or fairness of the proposed settlement terms
Content neutrality means the mediator does not evaluate or push for specific outcomes, leaving the substance of any agreement entirely to the parties.
Question 4: A corporation and an individual consumer are in mediation over a product defect. The corporation brings three attorneys; the consumer has none. The mediator's MOST appropriate initial action is to:
- Require the corporation to dismiss two attorneys
- Acknowledge the imbalance and inquire whether the consumer wishes to seek representation (Correct answer)
- Proceed without comment to avoid embarrassing the consumer
- Appoint an ad hoc attorney for the consumer at the company's expense
Correct answer: Acknowledge the imbalance and inquire whether the consumer wishes to seek representation
Informing the unrepresented party of the imbalance and their right to seek counsel respects party autonomy while ensuring informed participation.
Question 5: Which of the following is an example of 'procedural power' that a mediator can reallocate to address an imbalance?
- Deciding which party's legal argument is stronger
- Controlling the order of speaking, agenda, and recess timing (Correct answer)
- Awarding cost-sharing penalties to the more powerful party
- Requiring equal financial disclosure from both parties
Correct answer: Controlling the order of speaking, agenda, and recess timing
Procedural power includes managing who speaks when, the agenda, and breaksātools the mediator controls and can use to level the playing field.
Question 6: An arbitrator is asked to decide a case where both parties are represented but one party's attorney is clearly more skilled. The arbitrator's CORRECT approach is to:
- Coach the less skilled attorney during recesses
- Decide the case based solely on the evidence and arguments presented (Correct answer)
- Give the weaker party additional time to present arguments
- Disclose the skill disparity and ask parties if they want to proceed
Correct answer: Decide the case based solely on the evidence and arguments presented
Arbitrators must decide based on evidence and argument presented; compensating for attorney skill differences would compromise impartiality.
Question 7: The concept of 'BATNA awareness' in mediation power dynamics refers to:
- A party's knowledge of the mediator's background and neutrality standards
- Understanding one's Best Alternative To a Negotiated Agreement, which affects negotiating leverage (Correct answer)
- The mediator's backup plan if a session becomes unproductive
- A statutory right to appeal mediated settlements
Correct answer: Understanding one's Best Alternative To a Negotiated Agreement, which affects negotiating leverage
BATNA (Best Alternative To a Negotiated Agreement) defines how much leverage a party has; awareness of it affects willingness to settle and power dynamics.
ADR Power Dynamics & Neutrality 3
A domestic violence survivor is participating in family mediation.
Which approach BEST addresses the safety and power imbalance concerns?