By Rabi Thapa

It’s easy to imagine that complaints to IAMs always pitch vulnerable communities against powerful corporations or governments, in a David vs Goliath scenario. What is the reality, and how do mediators, as supposedly neutral facilitators, bring the parties together? Accountability Matters spoke to Scott Adams, Senior Dispute Resolution Officer, World Bank Dispute Resolution Service (DRS), and Tat Lim, Mediator with both the Compliance Advisory Ombudsman (CAO) and the DRS. Scott and Tat drew on their rich experience to explore one of the most challenging aspects of dispute resolution in development projects—that of power imbalances.

Accountability Matters: What do power imbalances look like in the context of a development project?

Tat Lim: There are two things. One is what it might look like on paper. You often find that if you are preparing for a case, from a neutral’s point of view, you would be considering who’s sitting on one side of the table and who’s sitting on the other side. How many people, how many supporters, how much resources do they have, what’s their capacity? Are they represented? But then very quickly, when one enters into the actual case, the dynamics might look very different. What I mean by that is the party that seems to have the greater power may turn out to be more vulnerable than the party on the other side.

Scott Adams: Quite often, power is a matter of perception and also, it’s dynamic. So the power imbalance or balance can shift over time. That said, there are some common power imbalances that we see. The most typical would be resources. If you’ve got a company or a government and project-affected people who are often at or below the poverty line, with varying degrees of formal education, there’s just an obvious power imbalance there around resources, access to information, understanding information.

In addition, you can also run into power imbalance around formal status. Obviously, a government minister is going to have some kind of formal authority in that sense. But there are also other power imbalances, for example within communities. You may have traditional chiefs or local people who have status. And when there are local or particularly international NGOs involved, there’s a power dynamic there too. If they’re advising those communities, understanding and navigating that power imbalance is important.

AM: How would you gauge those power imbalances?

TL: One lever I would rely on is to ask, ultimately, who holds the trump card over the possible solutions? If it’s, say, a community that wants the return of land that they complain has been taken away from them, then it may look like the power to return the land lies with the company that has a concession, as well as potentially the government, which might be a third party in the equation. But when you probe deeper, you might reach a point where the government remains neutral and then it may become a toss-up between what the community has in terms of its resources and its ability to shift the government’s decision, versus the company’s.

SA: A lot relies on good practice to not only understand power imbalances, but also cultural aspects and other things. So, first of all, very often at the DRS we are looking to hire local mediators and local consultants. And one of the many reasons those local experts are so valuable is helping us read the social cues, understand the cultural context, obviously dealing with language barriers, but also giving us a little history. And then live updates like, oh there were just elections, so this has all changed now. Or, this person from the community moved to the capital to get a job.

We also do a conflict analysis at a very early stage in the case to try to understand not only who the core parties are, but what other stakeholders are involved and what dynamics may be going on within the community or the country. And then sometimes you just ask. Some years ago, at the end of our first meeting with some local villagers, I asked, What would be a traditional way of resolving conflicts like this in your community? And they said, We would all go to the elders. And I’d met with this community before, and no one had ever mentioned elders. And they said, It’s good you asked because if we go to mediation, they absolutely have to be in the room. And I thought, Ok, I’m glad I asked because we had never heard of these elders. And it wasn’t power per se. It was maybe to do with moral authority, that if these people had reached an agreement with the government without these elders present, it could have backfired. So that was a way of understanding a power dynamic that we weren’t aware of, just by asking.

AM: So you get a handle on the power dynamics the best you can. What do you do then?

TL: Well, first, the mediator and the team need a deliberate course of action, rather than just flowing into it and saying, well, we’ll deal with it when it comes around. If you see a power imbalance possibly affecting the process, what sort of interventions do you need? One might be thinking about capacity building, knowledge transfer, whether it would serve the interest of a party to have representation, considering lawyers, experts, NGOs. For example, if the imbalance is due to one side having more information than the other side, maybe there’s something we need to do to level the playing field. And then it’s a matter moving forward to get the parties to agree or disagree on the suggestions.

SA: So even early on we’re meeting with the parties, and we’re explaining that very often there are power imbalances. We explain how that can sometimes be addressed, but also the limits—that you’re not going to restructure society. But we explain that there are things that we would do differently in mediation. Because for many parties, on both sides, mediation is new to them. We also want to manage expectations early on so that, for instance, if the government officials are used to coming in and sitting at a dais or a table that’s up high and above everyone else, that this might look and feel a little different from what they are used to. Then once mediation begins, you’re typically having confidential separate bilateral meetings to talk about a host of things, including behavioral ground rules. And a lot of those can contribute to understanding power imbalances. It’s worth noting that sometimes it’s the seemingly simple things that make a big difference. We tend to think about seating arrangements, for example: my ideal is a round table or circles because everyone is equal, and each participant can see all the others.

Also, as Tat said, one of the earliest stages before you really get into the meat of the negotiation is kind of an exchange of information. And don’t always assume that it’s one way. Sometimes it can be very helpful for the community to provide some information to the client—local traditional knowledge, indigenous knowledge, lived experience. Asking the complainants in the community can be empowering for them.

AM: Is it also about making it more comfortable for the community, who may not be accustomed to meetings and presentations and so on?

SA: Let me also challenge that stereotype. In some circumstances, PowerPoint or documents in general are just not going to be well received by the community, and you might reinforce a power imbalance. On the other hand, going in with an open mind is key. I had more than one case where the community had limited knowledge and technological knowhow, but by the end of the process, they did, either because they were self-initiators and they wanted to learn, or because, as happened in one case, the client provided a mini-training. So don’t second-guess the community, don’t assume that won’t work for them. Ask, consult. I’ve seen communities do amazing things, and during the course of the process, their skills improve.

TL: Sometimes there is a tendency to make assumptions that if you’re going to communicate, you do it this way or that way, and that the folks who are silent or who are not speaking up, well, it must be that they are feeling a sense of anxiety or imbalance. But culturally, maybe that’s not how they communicate. Going into a process, you have to learn how people communicate and that even if the way they communicate may suggest to you there’s a power imbalance, it may be something entirely different.

SA: Could you give an example?

TL: So in one of the cases I was involved in, in Indochina, in certain village communities, people tend to be silent because they prefer perhaps to huddle and speak in their groupings and maybe have one spokesperson. So it may be that people from a company or the government will be very active because they are Western-trained, they’ve gone to university and so speaking openly in groups of people is something that might be second nature. On the other hand, you have groups where the way they talk in communities is just very quiet, consultative, they believe in the collective sort of impression of how things should be done. And so maybe nobody speaks at all. And so you think, well, there’s a power imbalance at play. But maybe it’s just that they are waiting for the right opportunity to consult with each other and then speak with you. And often the way to be cognizant is to ask a local interpreter, What’s happening in the room? And sometimes the answer is, oh, don’t worry about it, you just need some time to understand and settle down before they start talking. And sometimes that’s the answer.

SA: In these early meetings, we sometimes need to let the government or company know that we may have to spend more time with the community than we do with them. And that it’s not a sign of partiality or bias. I try to make the case that that will help the process and may even help the other side, because rather than coming in unfocused and all over the place and having infighting, they’re going to try to get organized so they come prepared to be constructive and focused. So that extra effort and time often pays off.

AM: If there is a power imbalance, including within the community, it may be that women or those who are more marginalized are not speaking because they can’t speak. How does one address this?

TL: If it’s a case where it’s a community that needs to consult among themselves and they prefer to work in small groups before they are willing to communicate with you, breaking up into separate caucuses and then working your way to each caucus and lifting the ideas directly from each caucus may be one idea. I’m heavily cognizant that in some Asian communities, even Singapore, open confrontation with senior government people or well-established members of society is frowned upon. So in a joint session, that’s not going to happen very readily.

SA: On vulnerable groups, there’s a few ways we can tackle that. When you’re talking about representation in cases with hundreds or even thousands of complainants, we would raise those questions early on. With issues of gender inclusion, I’ve had a few cases where in the early discussions with the complainants, their initial representative group was all male. And we’d have to say, It seems like there were some women that have been affected and they were part of the complaint, what do you think? And 99% of the cases, they were like, Oh, yeah, we just didn’t think of it. Once you asked, it was fine to have women’s representation. I can only think of really one case where it was for religious and cultural reasons. It was a harder conversation. And that’s when we can fall back on the World Bank Group’s policies and guidelines around gender inclusion.

So we can talk about convening a gender-inclusive process in a culturally respectful way. If men and women can’t be in the same room, it could be a combination of meeting separately, having male and female mediation teams or male and female case teams, and asking the locals what will work for them. To the point that we have to set some boundaries, we do that, but it almost always works if you’re able to have that conversation.

AM: So how does one preserve the idea of neutrality while leveling the playing field or working toward an agreement or outcome?

TL: This topic is one that will evoke a lot of reactions when you ask different groups of mediators. In some codes of conduct for mediators, they have moved away from the notion of neutrality. I would say a mediator should be neutral in terms of the outcome of the process, but certainly needs to be impartial, or omni-partial, in the way they administer the process.

SA: From my own experience, it’s sometimes perceived by parties that neutrality means passivity, that we’re just sitting back, carrying messages, listening to what everybody says. And that’s not what a good mediator should be doing. You have to be much more proactive. Multi-partiality (or omni-partiality) means that rather than being completely impartial and distant, you’re on the side of all parties at the same time.

AM: Where do you draw the line between maintaining strict neutrality and intervening to prevent what you see as an unfair agreement?

SA: We should definitely be neutral in terms of the outcome, but obviously, if there’s a threat of violence, if parties are looking to agree to something that’s going to be illegal, we need to manage that. It’s more about informed decision-making. Do they actually understand what they are agreeing to? As mediators, when we’re getting to the stage of writing agreements, we’re often challenging the parties through what we call reality testing. Is that a realistic deadline? Does that language leave too much open to interpretation a month or two from now? So you’re helping them think it through so that it’s a really good, solid agreement that’s not going to present problems for them further down the road.

TL: But one should not be too quick to judge what might appear to be a power imbalance. Sometimes it’s just a legitimate bargaining strategy that’s rolling out in front of your eyes. And at the end, where all of that is written into the form of an agreement that they are willing to sign, a mediator shouldn’t be too quick to say there’s something wrong with this because it’s obviously skewed to one side, because the other side could have very legitimate reasons why they are willing to concede many of the things that have been claimed by the other side. So, the question one would ask oneself is, are you focusing on ensuring the process is fair? Or are you trying to intervene to make sure that the outcome is fair? The former isn’t controversial at all. The latter can be somewhat controversial, especially if you have your own notions of what a fair outcome would look like.

SA: There are lots of neutral ways you can still put ideas in front of the parties. Our value add is to really help parties do things they couldn’t do.

AM: So if there’s a settlement, it suggests that there is some kind of balance between the parties. But once the mediator or IAM leaves, is there a possibility of the power balance shifting again to the detriment of a party?

SA: You can address some power imbalances. But there are some that we’re not going to change in our process. So it’s about working with those limitations. As I call it, this is life after mediation. When you’re crafting the agreement, you need to build in guarantees or default clauses as a kind of safety net. And then there’s also a built-in safety net in the DRS process and many accountability mechanisms where we do have a monitoring role. So it’s not that they sign the agreement and we disappear. Assuming the parties want us, we’re still there to monitor but also help troubleshoot.

TL: The monitoring period is often fairly short. Beyond that, one has to leave it to the good judgment of the parties who have voluntarily entered into an agreement because they’re not going to purposefully unravel what they’ve spent a lot of time and resources constructing. It’s against human nature to do that. The other thing one must be mindful of is that you should not compromise the integrity of the process and the reputation of the institution just to ensure parties have a “long tail” where their rights are preserved. You have no ability to move back in and ensure things are going to be played out the way you envisage them playing out, because you no longer have a role beyond a certain time. The term functus officio comes to mind. You have to leave it to the parties to go to their local domestic courts to enforce one thing or the other, or go back to a process that they’re comfortable with. I don’t think it’s helpful for the IAM or the mediator to think, well, we can still make a difference.

SA: That’s so important. There’s that balance between being helpful and providing a valuable service to the parties, but not building dependency on the mechanism. We have to be aware of it and really keep the ownership on them, keep the implementation on them, help them be realistic about their own resources and ability to implement things when we’re gone.

AM: What advice would you give to a newer mediator in relation to power imbalances?

TL: The way to address power imbalances is through the pre-planning and the runway in the pre-mediation assessment, the meetings, and as much capacity building as you can manage during the initial stage—before you bring them into a room. That’s the best inoculation against the adverse effects of a true power imbalance.

SA: Typical mistakes newer mediators make are either ignoring the power imbalances and just chugging ahead, or overcompensating, either being overly sympathetic to what they perceive as the weaker party or deferring to the more powerful party, for instance a government official. But if you’re otherwise professional and fair and you are treating people equally in the room, that will actually earn you respect.