Four Signs of Intimidation in a Mediation

According to Cooley (2006), “Power imbalances cause advantages to accrue to one or more parties, and they arise from a variety of sources, including: wealth, social position, access to legal expertise, access to facts, negotiating ability, physical intimidation, or an opponent’s avoidance of conflict.”1 For community mediation centers, such imbalances are often seen when the plaintiff is represented by a lawyer and the defendant has no counsel or when socioeconomic differences between the parties significantly advantage one over the over.

Mediators can stay alert for intimidating practices by watching for these four indicators:

1) Body Language – Those with more real or perceived power tend to lean in, maintain eye contact, use their hands for emphasizing a point (pounding a table, or pointing a finger), and use threatening looks to intimidate the other. On the other side of the coin, those with lesser real or perceived power may begin to disengage from the discussion by lowering their head, sinking into their seat, talking less and less, or becoming tearful. In both instances, the mediator must intervene in some way or the power imbalance will stifle all possibility of a fair and self-determined outcome. Questions that uncover the feelings behind the body language are often an effective way to begin to temper the power imbalance and return the mediation to even ground.

2) Emphasizing Subjective Characterizations Rather than Facts – Clearly, name-calling and conjecturing can be seen as intimidation strategies. Words like “unfit mother,” “lazy,” “selfish,” or “deadbeat” portray deeply negative social images that are sometimes offered as fact with no evidence to back up the claims. Depending on the personalities of the parties, these statements can either escalate into ager or shut down the other’s response. Individuals with low self-esteem, for example, may simply accept these characterizations without the help of a mediator. This is one good argument for setting ground rules from the beginning that do not permit either individual to use this tactic in the mediation.

3) Attempts to Speak with the Other Party Alone – When the mediator has been successful in fending off more overt intimidating behaviors, one of the parties may resort to what could appear to be a softer, more direct appeal to the one of lesser power. Have you ever seen this happen? “If we could just ditch these lawyers and mediators, we could work this out ourselves! Don’t let them bully you into some agreement we can’t live with. I want to talk with you alone!” It is never a good idea –and could be dangerous– for two opposing parties to be left alone together “to figure things out.” The presence of attorneys is likely to mitigate that possibility, however, there are many times when neither party will be represented by counsel and this scenario could arise.

4) Overt or Implied Threats – All mediators have an ethical obligation to end the mediation and alert the proper authorities under the following conditions:
• threats of violence, physical harm to self or others, or allegations of neglect or abuse of a child, a protected individual, or a vulnerable adult
• a statement of a plan to commit a crime
If such an occasion should arise, mediators must use all caution to assure a calm, safe exit from the mediation setting.

• 1 Cooley, J.W. (2006). National Institute for Trial Advocacy; 2nd edition, pp. 50-51

  Intimidation can only occur in the presence of real or perceived power imbalances. It can be an insidious and potent strategy for wielding power in a mediation. The mediator can protect against the negative impact of intimidation on the less powerful party by knowing the sources of power imbalances.

  According to Cooley (2006), “Power imbalances cause advantages to accrue to one or more parties, and they arise from a variety of sources, including: wealth, social position, access to legal expertise, access to facts, negotiating ability, physical intimidation, or an opponent’s avoidance of conflict.”1 For community mediation centers, such imbalances are often seen when the plaintiff is represented by a lawyer and the defendant has no counsel or when socioeconomic differences between the parties significantly advantage one over the over.

  Mediators can stay alert for intimidating practices by watching for these four indicators:

  1) Body Language – Those with more real or perceived power tend to lean in, maintain eye contact, use their hands for emphasizing a point (pounding a table, or pointing a finger), and use threatening looks to intimidate the other. On the other side of the coin, those with lesser real or perceived power may begin to disengage from the discussion by lowering their head, sinking into their seat, talking less and less, or becoming tearful. In both instances, the mediator must intervene in some way or the power imbalance will stifle all possibility of a fair and self-determined outcome. Questions that uncover the feelings behind the body language are often an effective way to begin to temper the power imbalance and return the mediation to even ground.

  2) Emphasizing Subjective Characterizations Rather than Facts – Clearly, name-calling and conjecturing can be seen as intimidation strategies. Words like “unfit mother,” “lazy,” “selfish,” or “deadbeat” portray deeply negative social images that are sometimes offered as fact with no evidence to back up the claims. Depending on the personalities of the parties, these statements can either escalate into ager or shut down the other’s response. Individuals with low self-esteem, for example, may simply accept these characterizations without the help of a mediator. This is one good argument for setting ground rules from the beginning that do not permit either individual to use this tactic in the mediation.

  3) Attempts to Speak with the Other Party Alone – When the mediator has been successful in fending off more overt intimidating behaviors, one of the parties may resort to what could appear to be a softer, more direct appeal to the one of lesser power. Have you ever seen this happen? “If we could just ditch these lawyers and mediators, we could work this out ourselves! Don’t let them bully you into some agreement we can’t live with. I want to talk with you alone!” It is never a good idea –and could be dangerous– for two opposing parties to be left alone together “to figure things out.” The presence of attorneys is likely to mitigate that possibility, however, there are many times when neither party will be represented by counsel and this scenario could arise.

  4) Overt or Implied Threats – All mediators have an ethical obligation to end the mediation and alert the proper authorities under the following conditions:
  • threats of violence, physical harm to self or others, or allegations of neglect or abuse of a child, a protected individual, or a vulnerable adult
  • a statement of a plan to commit a crime
  If such an occasion should arise, mediators must use all caution to assure a calm, safe exit from the mediation setting.

  • 1 Cooley, J.W. (2006). National Institute for Trial Advocacy; 2nd edition, pp. 50-51