I am a member of the Board of Resolution Systems Institute (RSI), well-known to many of you for its important work in evaluating and providing research-based tools to help assure the quality of court-connected dispute resolution programs. One of RSI’s newest contributions to our field is a Power Imbalance Toolkit for mediators. The Toolkit (and more) is available at https://www.aboutrsi.org/mediation-power-imbalance-toolkit.
The following was written by Victoria Wang, former Public Interest Law Initiative Fellow with RSI regarding the Power Imbalance Toolkit:
What happens when one party is an experienced attorney ready to negotiate, while the other is a self-represented tenant who is unsure of what to say or what the terms in the agreement really mean? This scenario is common in eviction mediations, where differences in legal knowledge, resources and confidence can create a stark imbalance in disputes between landlords and tenants. For mediators, navigating these dynamics is one of the toughest challenges of eviction cases.
RSI’s new Power Imbalance Toolkit (available at https://www.aboutrsi.org/mediation-power-imbalance-toolkit) draws on direct observation of eviction mediations, review of academic literature, and feedback from practitioners to identify the most common imbalance issues and provide practical strategies for mediators to address them. It is designed to be both accessible and actionable: Mediators can use it for training, preparation or even a quick reference during a session.
The toolkit is organized into nine sections, each focused on a particular imbalance:
1. Technological Issues — When parties join remotely, particularly via mobile phone, and struggle with Zoom functions, electronic document signing, etc.
2. Mediator Mediated with the Attorney Before — When mediators have mediated with the attorney before and have a level of familiarity with them, which tenants may see as an indicator of bias
3. One Party’s Dominance — When one party controls the conversation, sidelining the other party
4. One Party’s Silence or Passivity — When one party remains quiet, making it possible to mistake silence for consent
5. One Party’s Emotional Stress and Fear — When parties’ anxiety or fear inhibits participation
6. Parties’ Unfamiliarity with Court Procedures and Legal Terms — When parties, usually tenants, do not understand legal terms like “seal the case” or “dismissed without prejudice”
7. Complex Proposals — When attorneys suggest intricate settlement terms that may be hard for tenants to grasp
8. Drafting Agreements — When agreements are written in legalese or terms are dictated by attorneys without tenant input
9. Scope of the Discussion — When attorneys limit the scope of the conversation and do not address issues like unpaid rent after a tenant moves out
Each section begins with “What is the issue and what should I watch for?,” describing the specific imbalance and highlighting common warning signs. “What should I do?” provides concrete approaches that mediators can take, including sample questions and prompts to encourage fuller participation or check for understanding. Finally, each section ends with “Quick Tips for Your Toolbox,” a concise summary that mediators can consult at a glance, whether as preparation just before a mediation or as a quick refresher.
The toolkit also includes a plain-language glossary of legal terms that commonly arise in eviction mediation. Terms like “sealing the case” and “dismissed without prejudice” can be intimidating to tenants who are unfamiliar with court processes. The glossary gives mediators simple, accessible definitions they can use to ensure tenants understand what is being discussed.
