Mediation Championship Post 1: Negotiating Power via Process: Diplomatic Lessons for Mediation
April 6, 2026
We are reminded of a commercial mediation concerning two parties in the fin-tech industry that seemed quite ordinary at surface level – a fallout over a contractual default, consequential financial losses, reputational damage and lawyers preparing to wrestle it out in court. They both had their chief executives seated around the hexagon-shaped table, locked in and geared up to mediate, with the assistance of two self-determined neutrals as co-mediators. And, yet, before a word was spoken, the power imbalance seemed unmistakable.
On one side sat a global corporation – well-resourced, legally endowed, and represented by two external senior counsel, a seasoned general counsel and a litany of half-a-dozen experts ready to deliver their wisdom on finance, technology, artificial intelligence and cyber security. Seated On the other hand was a relatively small-time, family-owned, but successful manufacturing business, where the chief executive, who had never participated in a formal mediation before, decided to bring along a junior in-house associate as his legal counsel.
Witnessing this contrast, we questioned whether neutrality alone could ensure a truly fair mediation. Could neutral treatment by the mediators really transform this setting into a level playing field? With one side demonstrating power, experience and fervor, while the other posturing a presumably indifferent and naive approach, can they experience psychological safety for negotiations? These questions became the starting point for a broader reflection on what neutrality meant in the face of power imbalance.
Diplomacy, in the context of international geo-political dialogue, has constantly revolved around such power asymmetries. International mediators often find themselves facilitating negotiations between strong and weak states, where sometimes, the actual leverage doesn’t reflect the public posturing. Viewing commercial mediation through the lens of diplomacy can offer us a set of practical design choices for creating fair and safe negotiation spaces when power is not balanced.
The Oslo Accords 1993: The Value of Process Before Substance
The Oslo Accords, signed in the 1990s between Israel and the Palestine Liberation Organisation (PLO), are often remembered for their political outcomes1, though, from a mediator’s perspective, the most valuable lesson lies in process design. The Mediators, Terje Rød-Larsen and Mona Juul, demonstrated no urgency or anxiety in nudging the parties towards an immediate comprehensive agreement. Their initial focus, rightly so, was on co-designing the negotiation process, with the Israeli and Palestinian governments. For starters, they drafted a neutral agenda to prevent any side from dominating the discussions.
The co-mediators – who were not just seasoned diplomats from Norway, but also real-life partners, being married to each other – recognized they were dealing with negotiators that held extreme strategic priorities and perspectives. While Israel was operating through established state mechanisms, the Palestinian representatives engaged through less formalised but politically significant organisational frameworks. Additionally, both sides were accountable to different domestic and international constituencies. So, instead of pushing for a comprehensive deal at once, the mediators encouraged incremental commitments that built momentum and confidence. They achieved this by dividing the process into phases that started with pre-negotiation trust- building and advanced to formal accords on a phased self-rule.
As mediators, we have come across situations, where discussions hit a deadlock despite progress; and, if not tackled instantly, this deadlock can deteriorate communications and escalate into chaos, destroying all the progress made prior to the deadlock. Oslo’s mediators understood the fragility of these agreements. Even the smallest flare-ups could derail the entire deal. To prevent such fires, they embedded (while the mediation was ongoing) safeguards such as joint Israeli- Palestinian monitoring committees, timed confidence-building measures and reciprocal ceasefires verified by neutral international observers. This enabled shielding incremental gains and sustaining momentum throughout the fragile dialogue.
Commercial mediators can learn a lesson or two from the Oslo Mediator’s playbook and create the sense of a level playing field. In the fin-tech mediation, we mentioned earlier, the mediators engaged in the following. Firstly, the mediators independently identified potential imbalances between the parties and set fair protocols on sharing documents and recording decisions / agreements. Secondly, and this is ideal, they introduced procedural safeguards such as review clauses or progress checkpoints to ensure agreements at every milestone are honoured and the practice of collaboration is trusted.
Instead of rushing to IP ownership, payment terms, and future collaboration, the mediators in the fin-tech dispute practiced the sacred skill of curios questioning to build rapport, trust and process design:
- How do you feel about participating in a joint session?
- Who are the stakeholders relevant to decision-making that we must have?
- What documents do you think are relevant and how will these be presented/shared?
- Which issues need early agreement to prevent pressure or decision-fatigue?
- What safeguards can we apply to ensure compliance with early agreements?
- Why have previous negotiations failed and what protocols can deter such roadblocks?
Breaking complex disputes into smaller, reviewable agreements enables parties to test their collaboration in practice and transform the mediation from an experiment into a experience.
Havana: Inclusion as a Structural Safeguard
How many times are parties affected by the outcome as part of the decision-making process? We may not initially notice it; but over time, this exclusion has a way of resurfacing through resistance, non-compliance, or the slow unravelling of what once looked like a workable agreement. Here, the Havana peace talks serve as a lesson beyond their original context.
The Havana talks unfolded against the backdrop of a fifty-year conflict involving the Colombian state and the FARC. Fuerzas Armadas Revolucionarias de Colombia) was a major Marxist-Leninist guerrilla group in Colombia, formed in 1964, known for its decades-long armed conflict, involvement in drug trafficking, and terrorist acts like bombings and kidnappings. The mediators in Havana deliberately included civil society organizations, and local communities to ensure that all the parties were on the same page and decisions made would sustain. They ensured that those most affected by the conflict were not treated as passive recipients of an elite settlement. This serves us a reminder that many commercial agreements endure not just because they are efficiently negotiated, but because the process has accounted for relevant stakeholders who must ultimately live with their consequences. This is a reminder that power gaps can be bridged by appointing competent neutral advisors or subject matter experts.
Manage Power, Don’t Deny It
While mediators acknowledge that power asymmetry is not something in their control, it is also true that ignoring power does not make it disappear. It simply allows it to operate unchecked. As Joel Lee writes (Mediation and The Satir Categories), “When we mediate, we are not simply resolving issues; we are creating a space in which people navigate stress, power, fear,…”. Therefore, while thoughtful process design cannot eliminate disparities in resources, influence or experience, it can prevent these forces from quietly determining outcomes
Flipping through the pages of diplomacy’s book has reinforced our belief that building procedural safeguards, sequencing discussions and ensuring meaningful inclusion are not departures from neutrality but rather practical expressions of it. There is no doubt that fairness is the backbone of mediation; such fairness is not achieved by denying the existence of power, but by recognizing how it operates and shaping the process accordingly. And, as Emad Hussein (Is Mediator Neutrality Holding us Back…) reminds us, “replacing neutrality with more practical principles, mediators can help parties navigate disputes with greater clarity and purpose.”
Looking back at Oslo and Havana, we can identify where uneven power still produced unlikely truces. The art of effective mediation going forward may depend less on achieving equal power at the table, and more on ensuring that those with less power feel just as heard, giving rise to outcomes that are not only efficient, but legitimate, durable, and in many ways, transformative.
Comments (0)
Your email address will not be published.
Become a contributor!
Interested in contributing? Submit your proposal for a blog post now and become a part of our legal community!
Contact Editorial Guidelines
You may also like
March 8, 2026
February 20, 2026