Power Imbalances In Mediation: A Challenge To Foundational Neutrality And Fairness
- IJLLR Journal
- 43 minutes ago
- 2 min read
Mayank Chandra, LLM, Dr. Bhim Rao Ambedkar National Law University, Sonepat
ABSTRACT
This paper examines how imbalances of power affects the ethical basis of mediation, in particular, the ethics of neutrality and fairness that provide it with moral foundation. Although most people rejoice that mediation is a timesaving, relationship preserving, affordable etc. based manner of solving conflict, it does not exist in a vacuumal environment outside the broader social realities that inform it. In India, where the practice of mediation is quickly taking formal shape through the Mediation Act of 2023, the issues of economic, gender-based, and institutional inequality continue to lie within the practice. When one side enters into mediation with a greater financial pull, superior education or greater social status, the one that appears to be voluntary may actually be merely a slight coercive action. Neutrality cannot therefore simply imply remaining silent or unconcerned, it must entail an ethical sense of environments and insensitivity to unequalness.
I explained the influences of philosophical, legal and comparative views to study how various jurisdictions like Singapore, the United Kingdom or Australia have been shifting towards a more participatory concept of neutrality what they would term as contextual or active neutrality. These strategies enable the mediators to ensure all the participants have their even share without losing objectivity. Based on doctrinally and comparatively supported analysis supported by available empirical evidence, the study reveals that the practice of Indian mediation usually confuses neutrality with non-interference which in fact may be contributing to the same kind of inequalities that mediation is meant to remedy.
I claim redefining neutrality, as an active practice of ethics, but not a strict guideline. It appears that mediators ought to be trained to identify and address power disparities by using systematic protection, screening during pre-mediation, and continuous ethical monitoring. Finally, it is concluded in the study that, to mediate legitimacy in India does not simply lie in obtaining settlements but also in making sure that all the agreements are based on actual consent, informed involvement, and material fairness which is the mechanism that makes mediation comparable to the larger constitutional commitment of justice and equality.
Keywords: Mediation, Power Imbalance, Neutrality, Fairness, Party Autonomy, Procedural Justice.
