Over the last several months, Congress has been struggling to reach a consensus on infra-structure legislation with a concurrent reconciliation bill. Because the Senate is evenly divided, a delicate balance of power exists to the point that two senators are having a great deal of say over what goes into the proposed legislation. They have more power than the remaining 98 senators.

Watching this play out reminded me of the imbalance of power that often exists among disputing parties. “Power” has been defined as “… the ability of people to influence each other. It is about how people’s lives are governed systematically by larger social forces. “(Waldman, Ellen, ed, Mediation Ethics: Cases and Commentaries (Jossey- Bass, San Francisco, 2011) at 79.)  It is the ability to shape both the process and the outcome (Id. at 94.) which is definitely what we are witnessing in Congress, and particularly in the Senate.

When we think of power imbalances, we normally conclude that the majority holds the balance of power. That is, 98 senators should be holding the power in order to out vote the two dissenting senators. But what is actually occurring raises a vital point: often times, the seemingly weaker party (i.e., the two senators) actually hold the balance of power by their ability to accept or reject a proposal. For example, in a child custody or visitation dispute, the power of the allegedly “weaker” spouse to say “no” provides that spouse with a great deal of power, even tipping the balance in her/ his favor.

The takeaway is that just because one party may seemingly be the weaker party, she/he may still hold the balance of power through the ability to reject the options presented by the others.

And that person’s sources of power may vary. Such sources include money, expertise, knowledge, information and accurate data, merit in the eyes of the law, moral conviction and certainty, the ability to be an excellent advocate, ability to be a nuisance and the perception of that person by others. (Id. at 94-95.) In the example with the Congressional impasse, moral conviction and certainty definitely play a role as does the perception of these two senators both by their own constituents and by all others. They definitely have the ability to be nuisances and no doubt, these senators believe that their positions have merit in the eyes of the law.

The concern of the rest of Congress as well as the general public, is that if Congress proceeds in light of this power imbalance, it may make some bad decisions as is evidenced by some of the social infrastructure items that have been scrapped from the proposed legislation. Congress is running out of time due to the upcoming midterm elections and so out of fear, (especially in light of the recent outcomes in Virginia and New Jersey) it may make some bad decisions about what stays in the bill and what gets left out. The result will be a much weaker infrastructure bill than what the general public wants and needs. And all because two senators hold the balance of power.

Outside of this Congressional dispute, and particularly where the parties are in a mediation, there are ways to counteract an imbalance of power. One is to ensure equal time among the parties; make sure each party has the same amount of time to engage in the process. Another is for the mediator to police any intimidating or abusive behavior by setting out ground rules and having the parties agree to abide by them. (Example: no interrupting, cursing, loud voices, bullying, etc.). Meeting with each party separately and privately will also greatly help reduce the imbalance of power; each party will feel more comfortable speaking privately and thus be more honest and candid. Finally, ensuring that all of the information is shared – level the information field- will do much to reduce the imbalance of power. As we all know, information is power and so the one with the most information, often has the most power. (Id. at 100.)

While none of us know how the infrastructure legislation will turn out, it definitely has been a great lesson on the imbalance of power among folks and how a minority can control the futures of so many.

… Just something to think about.


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