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The Mediation Process Essay 1 	Page-	Charles Tant

Is Family Mediation a Second Class Compromise or First Class Alternative? Excerpt from paper by Dr Charles Tant

At the crux of this paper is the issue of family mediation at the cross roads. Mediation, which can potentially do so much good, particularly for disadvantaged groups such as women and the poor, can also be a mechanism by which the disadvantaged can come off still worse if the authorities cut corners and make false economies.  In order to understand the importance of this issue, it is necessary to set it within a canvas of social and economic developments. In this manner I will attempt to paint a picture of the way in which mediation has developed over the past ten years, so separating it from a legal framework, the way that the poor and women in society are kept in a subordinate position, and finally why mediation can actually work against the very things it was set up to avoid, namely the exploitation of the less fortunate. For these reasons I will return the issue of mediation at the cross roads at a later point in the essay. For now however, I would like to explore some of the issues which make up the framework of mediation, the poor and women. A good  place to begin this paper is to define mediation and briefly discuss the history of  mediation. 

Mediation is by no means a new method to resolve disputation. Folberg and Taylor (1984, p.1)  refer to mediation being used in ancient China as a mechanism to resolve disputations. In keeping with Confucian philosophy, it was viewed that 'optimum resolution of a dispute was achieved by moral persuasion and agreement rather than sovereign coercion'. The existence of natural harmony in human affairs should not be disrupted, and mediation would achieve this Confucian ideal. 

Various commentators and practitioners have attempted to define mediation, including Moore (1996), Folberg and Taylor (1984) and Thirgood (1999), but the following extracts the principal common elements. Mediation is a structured process where disputing parties assisted by an impartial, neutral third party (the mediator) work together to isolate disputed issues, develop options, consider choices and reach a joint agreement. The mediator manages the process, but the parties are responsible for the outcome.

One of the difficulties in any discussion on mediation is that mediation embraces a broad range of approaches. To clarify the discussion in this paper I am primarily interested in mediation where the focus is not on the rights of the party or the their problem solving skills and emotional dimensions of the dispute (although the emotions of the parties need to be acknowledged), but on the interests and issues of the dispute. I am particularly interested in a model of mediation described by Thirgood (1999 p145) as 'minimalist' where the mediator is responsible for the process and the parties are responsible for the solution and where, as a consequence, mediator neutrality and party self-determination are critical. 

That Australian governments have embraced mediation is clear. For example, the 1995 Justice Statement indicated that  the Howard Government would provide several millions of dollars for Family Court and community based mediators. In the Family Law context the Family Law Reform Act 1995 (Cth) elevated mediation from an 'alternative'  to the 'primary' method of dispute resolution in family law disputes. The question to which I will return is what are the motives of government behind this shift, as the particular concern of this paper is whether 'cheaper' comes at the cost of 'fairer' for women in family mediation and people who are poor.

Mediation has many potential advantages over litigation. Bagshaw (1997), Boulle (1996) and Pengilley (1992) include-  

•	Speed and economy.

•	The ability to maintain goodwill hence a greater likelihood of conserving or even improving the ongoing relationship between the parties. Lines of communication are kept open between the parties. 

•	Confidentiality as mediation is conducted privately.

•	Flexibility of techniques and solutions. In mediation the solutions are consensual and non-judgmental. They are tailored to the needs of both parties ('win-win'). By contrast in litigation the solutions are imposed. At best one party wins at the expense of the other ('win-lose') or at worse both parties lose because the remedies available, such as damages and injunctions, are blunt and suit neither ('lose-lose'). In addition, in mediation discussions can include motives, ethics and the effect of the dispute on the relationship in the future as well as legal matters. The effect of all of this is that mediation has the potential to be fairer than litigation. 

•	Informality. Mediation is less intimidating than the legal system, and therefore 'user-friendly'

•	Empowerment. Mediation can empower the weaker party because it is voluntary and the parties have chosen to be responsible for their own solutions. I will return to this argument and the criticisms of it later.

The potential for power imbalance to produce injustice in mediation is the concern of this paper, but before considering this in detail I will briefly canvas two potential disadvantages of mediation.

•	Concerns of fairness in mediation often boil down to a comparison between mediation and litigation. However, this comparison is problematic because mediation and litigation use different criteria for fairness. Dworkin and London (1989, p. 4) argue that the criteria for fairness in litigation is 'external' because ideally the outcome is a result of the judge objectively applying established norms.  By contrast the criteria for fairness in mediation is 'internal', including the parties, individual and joint views of fairness, personalities and family norms. Boulle (1996, p. 56) uses a similar approach when he argues the formality, fair trial procedures, application of established norms and judicial independence of litigation are replaced by informality, participation of both parties, the creation of norms by the parties and a trusted, independent and neutral third party in mediation. Furthermore comparing mediation to litigation can suggest they are competitors, when they are often equal partners in dispute resolution. For example, in the context of domestic violence Astor (1991, p. 40) argues that mediation may complement, but should never be considered as an alternative to legal remedies.

•	Astor and Chinkin (1992, p. 112) mention one possible disadvantage of mediation compared to litigation for women, is that in mediation, issues that are important to women generally are dealt with privately and confidentially. They further consider the argument that one consequence of women struggling through the public forum of ligation to obtain rights, is the raising of public awareness of women's issues. Furthermore, these rights are fragile and could easily be eroded by private processes that cannot be appealed.

Specific situations of power inequality

Bagshaw (1997), Regan (1997), Boulle (1996) and Mack (1995) have advanced many situations where power inequality is problematic in mediation, including the risk that the poor will get 'second class' mediation, gender based power inequality, environmental disputes, anti-discrimination disputes, personal injury cases, consumers and large businesses and citizens and the government. In this paper I will be concentrating on the first two overlapping categories because they are frequently encountered in themselves and within the other categories. 

Astor and Chinkin (1992) and De Maria (1992) argue that in theory mediation has much to offer women and the poor. Compared to litigation, mediation has the potential to achieve justice more economically, its emphasis on participation of both parties can allow women and the poor to be heard and empowered whilst maintaining ongoing relationships. Alexander (1997, p. 256) adds that mediation is characterised by informality, confidentiality, cooperation, identification of underlying causes and a neutral, impartial mediator to facilitate communication. These qualities are appealing when compared to litigation with its formality, coerciveness, strict rules of evidence, costs, delays, use of lawyers, adversarial stance, win- lose approach, and the public exposure of private matters. 
 
However, I will argue that, unless countered, gender and class based power inequality in mediation can silence people and create injustice as effectively as the formality and rules of litigation.

What is power? 

There is no one definition of power, and power relationships can take many different forms. Davis and Salem (1984, pp. 17-26) describe power as the ability to influence or control others. Moore (1996, p.271) considers power to be a person's ability to change the outcome of another. Clarke and Davies (1992, p. 73) consider financial and intellectual power. One of the broadest approaches to power is espoused by Mayer (1987, p. 78) who identifies ten sources of power. Mayer goes far beyond power derived from control over money, goods and services (normally associated with the wealthy), position (for example, a school principal), procedures (for example, a judge), expertise and powerful friends. He includes in his definition  power derived from the ability to inflict harm or merely cause discomfort out of habit, appeals to widely held values, and power that derives from personal attributes (such as self assurance and determination). 

The complexity and broadness of Mayer's multi dimensional approach is in keeping with Clarke and Davies' (1992, p. 71) observation that it is often hard to determine where the power imbalance lies between parties in mediation, a point to which I will return when discussing techniques to address power imbalance. The party who appears to be less powerful may be unable to use their power because its exercise may damage their reputation. For example, a large corporation in a dispute with a small consumer may face allegations of bullying. Somewhat more idealistically a more powerful party may refuse to use their power out of concern for a just result. Similarly the party who appears to be the less powerful may have hidden sources of power or may obstruct and refuse to agree. 

Are women and the poor powerless?

There are many models and definitions of poverty which imply poverty is intrinsically linked to powerlessness and exploitation. Morgan and Allegritti (1992) argue that the very essence of poverty is powerlessness and the absence of choice. Further, as social inequity increases and forms of exploitation develop, the rate of poverty grows. Morgan and Allegritti paint a black picture of present day Australia with widespread poverty, charity groups such as the City Missions and Salvation Army overworked and over stretched in trying to meet the burgeoning demands of the growing multitudes of the poor, and the proliferation of pawnbrokers, the very personification of poverty. Similarly Astor and Chinkin (1992) and Gee (1998 p181) argue that generally speaking women are less powerful than men. As to the depth and number of the powerless among the poor and women, there is abundant evidence. The following studies serve as just a small representative sample-  

The 1993 Australian Bureau of Statistics survey Labour Force Status and Other Characteristics of Families found that over 88% of single parent families have women at their head, and of those, the majority have incomes beneath the poverty line. Only a minority of single mothers are engaged in paid employment. By contrast 65% of sole fathers are employed. Funder, Harrison and Weston (1993) found  that after divorce the living standards of women generally decline, while that of men  improve. Astor and Chinkin (1992, p. 109) indicate that compared to women, men are more likely to hold or associate with people who hold positions of authority, have greater earning capacity, have greater financial resources and use violence and harassment. Morgan and Allegritti (1992, p. 74) state that women's employment is still predominantly in part-time, low skilled, low paid jobs.

In 1975, the Henderson Report indicated that in Australia over three quarters of a million people were living below the poverty line. In 1987, Raskall estimated that this number had increased by 50%, and most recently, the 1996 Bureau of Statistics Year Book, indicated that from 1989-90 13.8% of Australians lived in poverty. Innes, in a recent article in The Advertiser of May 27th 2000 entitled 'The Lost and the Lonely', states that the number of homeless in South Australia are increasing each year, and that there is insufficient government funding to give out sufficient food. Furthermore, the categories of women and the  poor overlap because women as opposed to men are more than likely to be poor. Astor (1992, p. 112) refers to this as 'the feminisation of poverty'.

Why are women and the poor powerless? 

Scutt (1986) argues that differences between men and women inevitably lead to a power imbalance, so  favouring the male. Alexander (1997, p. 265) with her 'all-encompassing opposition to mediation' comes close when she asserts that  men and women speak, act, listen and participate in fundamentally different ways. Mack (1995, p. 131) also argues that when men and women converse men control the narrative, interrupt and prefer that the woman remains silent.  

Astor and Chinkin  (1992, p. 109) adopt a more moderate stance when they argue that women rather than men are less likely to access Mayer's ten sources of power (previously mentioned). Astor and Chinkin's reference to the likelihood rather than the inevitability of men being more powerful in mediation leaves room for the possibility that under some circumstances the woman may appear and be more powerful, and in other situations, women may appear on the surface to be weaker, but may actually be more powerful. I will be returning to the latter situation later in the paper, but at this point, wish to illustrate this element with an example. A male lecturer and female student are in a mediation session concerning the student's allegation of sexual harassment. Superficially the male lecturer appears as the more powerful. In Mayer's terms he has the formal authority of a lecturer's position with all the access to resources that that entails, but the prospect of professional ruin that even an allegation of improper conduct attracts erodes these powers. It begs the question 'Who really has the power here?' 

Although favouring family mediation, Ricci (1985) also concentrates on women when she suggests that problems of power imbalance in family mediation can originate from two self-defeating patterns of behaviour in women. Women may perceive their role as that of yielding martyrs whose aim is to preserve peace at any price. Alternatively they may feel betrayed and so entitled to redress the situation in a manner that has more in common with fault-based divorce.

Whilst it is certainly important that women in mediation are discouraged from displaying unproductive behaviour, there are dangers in Ricci's argument being used in isolation because it is tempting to leap to the conclusion that women are the problem. I would argue that this approach- 

•	Ignores the unproductive behaviour of men in mediation
•	Ignores the observation that women are not always powerless victims in mediation. 
•	Reinforces the mistaken stereotype of women as somehow weak and defective so that it can become a self-fulfilling prophesy. 
•	Is one step away from blaming women. 
•	Suggests that power imbalance in mediation can be corrected solely by therapy for women and power balancing techniques 
•	Concentrates on women rather than the social and economic position of women. 

Morgan and Allegritti (1992, p. 37) consider much the same argument for the poor when they argue that in the competitive society that is characteristic of modern Australia, failure is most often attributed to individual faults and proclivities, such as failure to adapt to schooling, failure to achieve academic success and failure to obtain employment. Genn (1993) voices similar concerns when he argues that poor parties to informal tribunals are seen as being at a disadvantage because they are unintelligent and possess poor negotiation skills. In the area of mediation, Della Noce (1997/98, p. 8) confronts a similar notion, that due to defective judgment and decision making, the poor cannot mediate. These views come dangerously close to seeing the poor as somehow defective within themselves rather than disadvantaged due to external circumstances. I have similar objections to those I have voiced about Ricci's argument concerning women. 

In contrast, Leitch (1986/87) argues that  problems of power imbalance in mediation between men and women have wider origins than the women themselves. They are inextricably tied to the social and economic position of women in society. Boulle (1996, p. 57) also looks beyond women when he argues that women lack power due to political, economic and psychological factors. This creates a vicious circle of  unequal access to resources, such as lawyers, limited educational and employment opportunities, perceptions of domination and submission, and a lack of familiarity with the negotiation process. In particular, in Family Law disputes, gender related power differences in marriage and society generally make it very difficult for women to negotiate from a position of equality. Mack (1995, pp. 135-137) uses a similar approach when she refers to the social, psychological and economic vulnerability of women producing their coerced participation in family mediation. Similarly De Maria (1992) looks beyond the poor themselves when he argues that poverty is imposed on the poor by capitalism rather than as a result of their own behaviour. 

These arguments have implications for the effectiveness of strategies used within mediation to address power imbalances that I will return to later.  Put briefly how-ever, if the origins of power inequality for women and poor are so extensive and complex, I am led to ask whether the strategies within mediation alone are enough to address those power imbalances? This is not to argue that they should be abandoned, but to suggest that strategies within mediation should be used in combination with a range of external interventions, such as ensuring people's basic needs are adequately met.

To return to the causes of power imbalance in mediation between men and women. Davis' (1988) study of family mediation services in England also looks beyond the women who are parties to mediation, to consider gender bias in the mediator. Whilst some of the women she surveyed reported that mediation provided a safe protective environment, others felt that female mediators were dominated and intimidated by their husbands, and that both husband and female mediator combined to pressure women to make concessions. Fineman (1988) offers a possible explanation for this when he suggests the commitment of some mediators to shared parenting may encourage them to pressure women to make damaging concessions. In Australia, Bordow and Gibson's (1994) study of the Family Court mediation services also found that women rather than men were more likely  to report that mediators pressured them into making an unsatisfactory agreement.

The consequences of the powerlessness of women and the poor in mediation  

A range of commentators have voiced concern about power inequality in mediation in general terms. Burton (1990,  p. 27) warns that because mediation provides private justice, there is the potential for hiding injustice and exploiting the powerless. Astor (1991, pp.10 & 22) argues that one of the claimed advantages of mediation is  that it is consensual rather than coercive. The parties control their decisions, negotiate as equals and are not told what to do by the mediator. However, the danger of a neutral mediator giving control of the decisions to the parties is that those decisions will simply reflect the power imbalance between the parties. Consequently the party who has better financial and legal advice, greater wealth, the ability to threaten and harass the other party, has greater confidence, and is convinced that they are right and believable, will be able to use their power to obtain a more favourable deal in mediation.  
 
Astor and Chinkin (1992, p.105) outline three features of mediation- firstly, that it is consensual rather than coercive. Secondly, that the parties make their own decisions in a cooperative fashion. Thirdly, that the mediator is neutral and manages the process, not the content. The authors then argue that the danger of consensuality and mediator neutrality is that the outcome will  reflect the power imbalance of the parties. The strongest will impose a settlement which is unfair when measured against an external standard of justice. 

Boulle (1996, pp. 57 & 59) voices similar concerns by arguing that inequalities in power may be reflected in unfair and unreasonable outcomes. He further argues that where a more powerful party calls on power to achieve their way it can be almost impossible for the weaker party to engage in problem solving techniques. Folberg and Taylor (1984, p. 35) argue that mediation presumes that  parties have the capacity, authority and responsibility to consensually determine what is best for themselves. I would argue that these presumptions are in turn based on roughly equal bargaining power and ability, communication skills and self-confidence and knowledge, particularly knowledge of the facts surrounding the conflict. Power inequality creates barriers in these areas.

What are some of the consequences of significant power inequality on the various stages of mediation? Both Folberg and Taylor (1984) and Moore (1996) include the following stages in the mediation process-preliminaries, including the opening statement by the mediator, fact finding and isolation of issues, generation of options, negotiation and decision making, writing the agreement, legal review and implementation, and if necessary, modification. 
 
•	Fact finding and isolation of issues are particularly reliant on full disclosure and equal participation of the parties. The stronger party can easily adopt the strategy of becoming the dominant narrator by breaking the ground rules of mutual respect and interrupting and criticising the weaker party.  This can reduce the weaker party to silence. Furthermore, the stronger party may leave out information which is vital for a fair settlement, as  is Alexander's argument (1997, p. 260) for powerful men. 

•	Generation of options requires full participation of both parties. The stronger party is often accustomed to being the generator of options whilst this role is often an unfamiliar one to the weaker party.

•	In negotiation the powerful party with better negotiating skills and self-confidence has a strategic advantage. As Kressnel (1985, p. 52) observes, the stronger party is less likely to compromise and more likely to use coercion and obstruction  to achieve an objective. On the other hand the weaker party often reacts with passive concession and the occasional act of defiance. In this way the negotiated solution reflects power imbalance 

•	Writing the agreement, legal review, implementation and revision may at first seem reasonable and equitable steps. Both parties set out their needs and build a solution which addresses those needs. However, if one party is better educated and has better access to experts, such as lawyers and accountants, the other party can be left at a disadvantage.

I will now consider some of the arguments about the consequences of power inequality the specifically apply to women and the poor.

Women Boulle (1996, p. 58) argues that  in the area of Family Law mediation, women who lack power may compromise or make concessions on their property entitlements, in the hope of maintaining good relations with their former partner. Alexander (1997, pp. 258-259) argues that in relationships between men and women men are the more powerful. In negotiations, those with greater power tend to maintain their superiority and demand a larger share of the property over those with less power. Consequently men will generally be favoured over women. As previously mentioned, men certainly tend to have greater resource power, including larger incomes and assets. Alexander also highlights the importance of the different world views and expectations of mediation between men and women. Many women are taught to be passive and self-sacrificing whilst many men are taught to be aggressive and self-interested. In addition, as Leitch (1986/87, p. 169) observes, most men aim to get a better deal, are manipulative and conceal their true financial position in mediation, whereas most women see mediation as a way to avoid conflict. In Mayer's terms these can be thought of as imbalances in personal power. Of course exactly the same arguments can be applied to litigation.

Astor (1991, pp. 10 & 22) argues that violence against a woman by a man is typically about an extreme power imbalance where there is aggression by the man and placation by the woman. If this power imbalance and  the behaviours associated with it persist in mediation, it is impossible for the woman to assert her own interests freely, so resulting in a series of concessions  made by a the woman under duress, rather than a consensus.

The poor A number of commentators have raised concerns that mediation may provide 'second class' justice for the poor who cannot afford the 'first class' model of litigation, so creating two tracks of justice. Fiss (1984) argues that the rich can afford litigation, whereas the poor cannot. They settle for mediation which is all about the surrender of legal rights and resultant unfairness. Regan (1997, pp. 12-15) states there is 'some truth' in the argument that the 'non-rich' get second class justice because they are forced into ADR processes where there is pressure to accept settlements that are inferior to those that they might have obtained through litigation. Bagshaw (1997, p. 187) agrees with the notion that there is a risk that the poor will be unfairly treated if the shift from litigation to mediation is mainly used to save money. 

However, there are other more positive perspectives- The Access to Justice Report (1994, p. 279) mentions the argument that people from disadvantaged groups who cannot afford litigation may use mediation as a 'second best' alternative. However, the report cautions against comparing mediation with full blown litigation as most litigated matters settle before they go to trial. It would be more realistic to compare mediation with the unstructured 'cut and thrust' negotiations that typify out of court settlements.

The poor and women may be at a disadvantage in mediation, but they would be at a disadvantage in litigation, or any other means of dispute resolution. Gee (1998, p. 181) acknowledges that in mediation men are more likely to have better legal advice, be in a better financial position, have greater self-confidence and more experience with negotiating than women, but exactly the same can be applied to litigation. Fulton (1989) goes further by arguing that the potential for mediation to be cheaper and quicker than litigation can reduce the advantage that a wealthy party has over a poor one. In the context of family mediation Boulle (1996, p. 58) also argues  that mediation with its emphasis on dialogue may be a better for women than litigation with its emphasis on rights. I will reinforce this promising potential of mediation when turning to some of the empowering techniques later in this paper.

Even if it can be shown that litigation generally produces better results than mediation, the inability of the poor, many of whom are women  be able to afford litigation, makes the choice an academic one. I am reminded of Thirgood's (1999, p. 149) quotation of Professor Wolgang Ziedler, the President of the Federal Constitutional Court of Germany at the Australian Legal Convention in 1981, who accepted that the English legal system provided 'Rolls Royce justice' whereas the German legal system provided 'Volkswagon justice'. He then asked how many ordinary citizens could afford a Rolls Royce? Should a poor woman in an isolated area be denied mediation when they have no effective alternative?  

Prior's (1993, pp. 105 & 111) study of family mediations at the then Marriage Guidance Council of South Australia found that the client group was fairly evenly spread across incomes, with a slight trend towards higher incomes. In addition, she found little suggestion of perceived disempowerment of women .

Some precautions and techniques to address power imbalances in mediation 

I have several reservations that need to be stated before commencing this discussion. The parties to a mediation can never have precisely equal power both as to character and degree of power. The focus of my discussion is not situations where power imbalances are minimal, as these have minimal consequences for mediation, but where there are significant imbalances. 

Furthermore, as Moore (1986, p. 107) argues, more powerful parties may avoid using their power to support productive exchanges which will benefit both parties for reasons of enlightened self interest or, somewhat more idealistically, a concern for justice. Consequently they may actually favour the mediator's power balancing activities.

Finally, first impressions of power imbalances can be deceptive. Astor and Chinkin (1992, p. 109) warn against seeing the power relationship between men and women in a simplistic way. Haynes (1983, p. 1) recalls a physically and emotionally powerful man reduced to tears at the thought that his wife might deprive him of access to his children. Apparently powerless women may also have a hidden resources by obstructing and refusing to agree. Clarke and Davies (1992, p. 71) uses the example of  a powerful corporation and small powerless individual. At first sight the company appears to be more powerful, they have money, access to the best legal advice and political influence, but they are also vulnerable because they have a carefully crafted,  expensive, and easily damaged reputation. This can be destroyed if the individual can harnesses the power of the media, particularly current affairs programmes, to portray themselves as a cruelly treated 'battler' and the corporation as a 'bully' from the big end of town. Boulle (1996,  p. 59) agrees with Clarke when he argues that the apparently weaker party may have sources of power other than funds, and lawyers and the apparently stronger party may be unwilling to use its powers.

Screening. Pre-mediation assessment of each party by the mediator gives the mediator the opportunity to consider whether the issues to be mediated and timing of the mediation are appropriate as well as the strategies that they might use. The central question to ask here is whether any factor exists which compromises the party's ability to negotiate. These include- 

•	Distressed, depressed, psychiatrically disabled or intoxicated parties. 

•	The refusal to fully disclose is also a contraindication to mediation. Furthermore, the use of mediation  by a party  for reasons other than obtaining a mutually acceptable outcome is also unacceptable. For example, whilst information obtained from mediation cannot be directly used in litigation due to the confidential nature of the mediation process it can be used indirectly to provide clues for discovery and strategy. 

•	Thirgood (1999, p. 150) argues that  mediation may not be appropriate where there is a danger that the interests of a third party may be adversely effected (although I will consider the use of non mediator child consultants shortly) and in uncertain areas of the law where court decisions are required to provide the community with precedent and certainty. 

•	However, perhaps the most important situation concerning Thirgood is where violence or the fear of violence is suspected, and the conflict has become so bitter that it is difficult for the parties to focus on the issues in dispute. This aptly describes the situation in domestic violence. Domestic violence by men against women is marked by chronic and profound powerlessness of women and raises complex issues. Where domestic violence is an immediate threat because the victim is living with, or easily accessible to the other party, the victim is insecure and terrified, and the power inequality is extreme, mediation is inappropriate. However, the blanket denial of mediation to women suffering from domestic violence would at best, deny women of an important conflict resolution tool and at worse, deny them any assistance due to the absence of other alternatives. Astor (1991) outlines a range precautions which include that the safety of the victim be a top priority, mediation is not an substitute for legal protections and criminal charges, and mediation should only occur with the free and informed consent of the victim. 

The mediation process itself is an empowering process. Davis and Salem (1984) argue that mediation itself is an innately empowering process because it is voluntary and the parties have chosen to be responsible for their own solutions. Furthermore the responsibility of the mediator for the process makes them responsible for correcting the power imbalance by treating the parties with equal dignity and concern. Clarke and Davies (1992, p. 74) also argue that mediation is empowering because the parties have voluntarily agreed to take part in the process and respect each other. Alexander (1997, p. 257) counters notions of voluntariness and consent by suggesting that they can be illusions owing to the social, psychological and economic vulnerability of women. However, this ignores the many techniques which the skilled and aware mediator can use to counter such vulnerability. I will turn to some of these shortly.

It is appropriate at this point to ask what happens when the mediation is not voluntary, but mandatory or pressured because of the order or 'recommendation' of a person with authority, such as a judge. A detailed discussion of this issue is beyond the scope of this paper, but I will make a few brief points. Most mediation falls somewhere between being completely voluntary and completely mandatory. In addition, the word 'voluntary' has many dimensions. It may be mandatory to enter into mediation, but voluntary to reach settlement.

In particular, Ellis and Wight (1997/98, pp. 234-236) identify principled negotiation as a cornerstone of mediation and indicate that such negotiation requires the parties to separate the problem from the personalities, concentrate on interests not positions, devise options for mutual gain and to use objective criteria. In addition to the strategies subsequently discussed, mediators can encourage these processes by reframing (giving a different perspective on the situation), reflecting (restating feeling and content), clarifying and summarising the needs of the parties involved in mediation.

The mediator's insistence that the parties conform to agreed standards of behaviour Clarke and Davies (1992, p. 74) indicate that one of the practical consequences of the parties agreeing to mutually respect each other is their agreement to conform to certain ground rules, such as the right to speak without interruption, abuse or criticism. Power play can manifest itself in the breaking of these ground rules. To address this imbalance the mediator must actively intervene. Initially the mediator may remind the party of the rules. If rule breaking continues the mediator may indicate that this may lead to the mediator terminating the mediation. In this context it can be appropriate to remind the party that litigation is the very thing they want to avoid.

A question arises here which can be asked of any of the mediator strategies.  If the mediator treats unequal parties unequally are they risking their neutrality? On the other hand if the mediator treats unequal parties equally is the result inequality? Mayer (1987) addresses this problem by arguing that mediator strategies that address power imbalance support the process rather than the parties, so need not compromise neutrality. In addition, even if the mediation process cannot fully correct the power imbalance it is to be preferred to other means of dispute resolution provided that it grants the 'least worse' settlement for the weaker party.

Ensuring that the parties have equal access to information which has three aspects (a) Making certain that necessary information is disclosed by each party to the other (b) Offering support and information to both parties. Where appropriate the mediator should direct parties to outside resources and support (c) Allowing the parties and themselves time to think, talk, and prepare. In particular, the mediator should be sure that the weaker party does not settle out of threats of retaliation and must not rush the settlement through. 

At this point it should be noted that, unlike litigation, mediation has no formal discovery mechanisms. However, mediators can use strategies to ensure equal access to information, such as caucasing discussed immediately below. Whilst it can be argued that awareness of non disclosure is dependent on the skills of the mediator, it should be kept in mind that effective discovery in litigation is dependent on the skills of the lawyer. This is due to the extent of legal limitations on discovery, such as legal professional privilege.

Co-mediation. Consider the situation where there is gender based power imbalance in family mediation. As mentioned Davis' (1988) study of family mediation services in England found  that some of the women felt that female mediators were manipulated by their husbands. Davis also found that some of the men felt that male mediators were manipulated by their wives. Could it be that mediators were more familiar with the manipulative techniques of their own sex than those of the opposite sex? Whatever the reason, the potential for two mediators to provide increased resources and use complementary techniques remains as an advantage in co-mediation.. However,  where there is co-mediation by male and female mediators to reduce gender inequality many questions need to be asked. What are their roles? How do their attitudes effect their roles? Finally, what training do they need? 

Caucusing  is a mechanism in which the mediator sees each party separately to discuss matters in confidence. This can be used in conjunction with shuttle mediation which involves the mediator moving between the parties in separate rooms (Boulle 1996,  p. 24). Consider the following application of caucasing in family mediation. Leitch (1986/7), as previously mentioned, found that many men in family mediation conceal their true financial position. If the mediator becomes aware of such non-disclosure they can see the party individually, confront them with their suspicions and urge the party to disclose that information to the other party, as disclosure is a condition of mediation. It is important to realise the mediator cannot disclose information given to them in caucus in confidence, but in the face of continued refusal by the party to co-operate, the mediator can terminate the mediation. The mediator can also use caucasing to support the weaker party. However, these processes should be carried out with extreme sensitivity if the mediator is to avoid accusations of bias.

The use of non mediator child consultants Non mediator child consultants can, with the consent of the parties, give feedback from children in family mediation. This has the potential to address Thirgood's (1999, p. 150) concern that mediation may endanger the interests of a third party as well as providing important information to the parties. 

Reality Testing is a process by which the mediator encourages the parties to reconsider possible options and decisions with reference to external standards such as social and legal norms. In particular, mediators must ensure that the details of implementation are carefully considered by the parties to ensure that the details themselves do not become a source of further dispute. However, whilst reality testing is one technique that a mediator can use to challenge power imbalances between the parties, this is not an argument to justify the mediator assuming a judgmental role, which undermines empowerment and self-determination of the involved parties so critical to mediation.

Independent legal review and processing. Whilst lawyers are excluded from the actual mediation they can be a.) Available nearby or on the telephone to provide the parties with advice on legal rights b). They can later review the proposed agreement (particularly important for the weaker party).

Government attitudes  

Since the 1980s in Australia, mediation has been enthusiastically embraced by successive federal and state governments as an alternative to litigation. The following are just a few examples of this trend. In New South Wales the Community Justice Centres Act 1983 set up a series of centres which provided mediation services to deal with neighbourhood disputes. The New South Wales model was progressively adopted in Victoria, Queensland, South Australia and the ACT. In the late 1980s, partially publicly funded community organisations, such as the Uniting Church Family and Marriage Services and Relationships Australia began providing community mediation services. In the 1995 Justice Statement the Howard Government indicated that  'The Government's main emphasis in this Statement is on extending mediation' (p25) and 'The Government is keen to encourage its development and amendments to the Family Law Act now before Parliament [that] will make mediation the primary means of dispute resolution' (p26). In particular, the Statement indicated  that the federal government would provide 16.8 million dollars over four years to increase the number of community based mediators specialising in family mediation and 4.3 million dollars over four years to the Family Court to increase its ability to offer mediation. As indicated in the Statement the Family Law Reform Act 1995 (Cth) elevated mediation in family law disputes from an 'alternative'  to the 'primary' method of dispute resolution. 

However, I am left asking a question of what motivates the enthusiastic pursuit of mediation by Australian governments?. In the 1995 Justice Statement the Federal Government suggests its motivations are purely altruistic. It champions the consensual and non-judgemental nature of mediation, which are indeed two of its potential virtues. What is significant is what is not said- that mediation can be cheaper than litigation. Perhaps Boulle (1996,  p. 196) was closer to the mark when he commented that the benefits the New South Wales Government anticipated when setting up mediation through Community Justice Programmes, included lower costs for processing cases, a reduced need for resources in the justice system, and the freeing of police for more serious crime.  

Astor and Chinkin (1992, p. 22) warn that one of the reasons for the uncritical embracing of ADR by governments in Australia is that they see it as a way to save money. Abel (1982, p. 1) goes further when he argues that the preference of governments for informality in processing disputes, is part of the trend of 'small government', that is, the contraction of state control, which includes privatisation and attacks on the public service.

If the authorities fund mediation for the disadvantaged 'on the cheap' they risk sacrificing what is a very promising development and duplicating the two tiered system of litigation with all the injustice that it entails. I will look at each of these concerns in turn.

'Cheaper' can come at the cost of 'fairer' for women and the poor in mediation because although mediation for these parties has a great deal of promise, appropriate supports must be provided. Examples of strategies within mediation  include ensuring that the parties conform to agreed standards of behaviour, that they have equal access to information and the selective use of co-mediation and caucusing. However, the origins of power inequality for women and the poor are so complex and wide reaching that strategies within mediation alone cannot entirely address those power imbalances. Consequently internal strategies should be used in combination with a range of external interventions, such as comprehensive legal assistance and, more broadly, adequate housing, food and health care.

Unfortunately most of these supports cost money and powerless poor and women do not have resources. Consequently, mediation in these circumstances is at least partially dependent on government funding. If that funding is inadequate, mediation services face the prospect of cutting services, so excluding some of the most vulnerable people in our society from dispute resolution, or 'cutting corners' with a consequent decline in the quality of mediation. Bagshaw (1997, p. 187) voices similar concerns when she mentions that if the main reason for the shift from litigation towards mediation is to save money there is a risk that the poor will be treated unjustly. Inadequately resourced mediation services with poorly trained mediators, where mediation is rushed and coercively imposed, risks injustice to people on low incomes. Since many of the poor are divorced women much the same can be said for them.

A related argument is that two tracks of mediation may emerge just as they have in litigation. One is used by the poor (many of whom are women) who are pressured to participate in under-resourced mediation services staffed by mediators with minimal training. Another is used by the business and middle class using sophisticated well resourced private mediation services which provide speed, economy and privacy without compromising fairness. Regan (1997, pp. 12-13) summarises this as the poor being 'captured by ADR' and the wealthy 'capturing ADR' and adds that 'the problem with capturing something is that other people can't use it'. Boulle (1996, p. 55) argues that the disproportionate use of publicly funded mediation by the middle classes in an environment where resources are increasingly diverted away from courts, sets up  further barriers to the poor using the courts through delays, inadequate representation and compromised justice. So it is possible that the poor will not only be blocked from mediation, but also litigation.

Conclusion

Mediation is a promising development embraced by Australian governments. In particular, mediation has the potential to address the concerns of women and the poor. However, there are several caveats to this. Where the power imbalance is extreme mediation is not appropriate and should not be regarded as a substitute for appropriately supported litigation. Where the power imbalance is moderate mediators need to employ a range of strategies that minimise the inequity created by that power inequality.  Governments also need to ensure that people have an external supports, including an adequate standard of living. Since most of these strategies are expensive mediation for powerless poor and women is great in theory, but cannot be done 'on the cheap'. 

If present Australian governments see mediation as a way to save money, they risk saving money at the expense of fairness so destroying something good and  in doing so, duplicate the two tiered system of litigation- one for the rich and one for the poor. In this context government claims of seeking enhanced justice should be regarded with suspicion bearing in mind their past record for dressing up the wolf of cost cutting in the sheep's clothing of laudable motives. For example, the much heralded policy of deinstitutionalisation in mental health was primarily motivated by cost cutting, resulting in the abandonment of the most vulnerable people in our society. Similarly the integration of people with disabilities into mainstream schools all too often resulted in the 'main dumping' of people with special needs without adequate supports to save a few dollars. I can only hope that this is not repeated for mediation, and that governments both present and future learn from past mistakes. 

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