Mediation Strategies to Overcome Bias, Prejudgments and Assumptions

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One of the bedrocks of our profession is the ability to help those who are most in need, without regard to race, gender, socio-economic status or the like. In fact, the Supreme Court of Georgia has included as part of the Aspirational Statements of the Code of Professional Responsibility the following:

As a lawyer, I will aspire…[t]o avoid all forms of wrongful discrimination in all of my activities including discrimination on the basis of race, religion, sex, age, handicap, veteran status, or national origin. The social goals of equality and fairness will be personal goals for me.

As attorneys and as productive, thoughtful members of society, we should all aim to avoid discrimination in all forms. Nevertheless, as humans we harbor biases, prejudgments and assumptions developed over time that inform how we conduct ourselves in various situations. Some are crafted early. Babies, for example, prefer their mother’s voice over others a few days after birth and their native language before they are a year old.[1] These types of preferences make sense from an evolutionary perspective: babies are quite vulnerable. Gravitating toward familiar sounds increases the likelihood of safety.

Development of Bias – Good and Bad

As we age and are exposed to innumerable stimuli, we have to find a way to make sense of it all. We all categorize and make judgments about people whom we do not know. As an attorney, I have been mistaken for a court reporter, an administrative assistant and an office manager on numerous occasions. On most of these occasions, the judgments other people made about me happened before I said a word. Looking back at these incidents on a case-by-case basis, it is impossible to say what motivated people to believe I was not an attorney. Could it have been my age? My gender? My race? Perhaps a combination of all three? No matter the motivation, the outcome was the same – a misunderstanding of an individual.

Research has shown this level of otherness extends well past the legal profession. When asked to picture an American, most people will reflexively picture a white male, despite the fact they comprise only thirty-one percent of the U.S. population.[2] In an increasingly diverse nation, this would on its surface seem somewhat surprising. Upon reflection and in daily interaction, it is clear our communities are filled with all kinds of different people. However, scientists who have used the Implicit Association Test for nearly twenty-five years would not be shocked by these results. They know there is often dissonance between our reflective versus our intuitive selves.[3] For instance, while intuition might tell us an approaching leashed pit bull walking with its owner is dangerous, reflection may yield a different result, incorporating our experiences with friends or family who may have this type of dog as a pet.

 In the context of litigation, our past experiences often make us better attorneys. This is at the very heart of practice. If we are not careful, though, we can be lulled into thinking we know the person on the other side of the conflict before we have done any work to see an individual. Internationally renowned mediator Ken Cloke noted:

As Umberto Eco accurately pointed out, “Trying to understand other people means destroying the stereotype without denying or ignoring the otherness.” It helps in doing so if we acknowledge that everyone forms prejudices; that stereotyping is a common element in all conflict communications; that it shapes the stories we tell about our opponents and ourselves; that everyone can learn to overcome prejudices and stereotyping through awareness, empathy and open communication; that everyone can become more skillful in communicating across stereotypes and the subtle lines of separation created by our fear of differences; and that doing so requires us to dismantle what gives rise to them at a deep, subconscious level in our hearts and minds, or systems and institutions.[4]

In mediation, the parties who acknowledge, understand and actively work to address their biases consistently have the best results. An open mind is often the best tool any attorney has to facilitate a resolution. With preconceived ideas about a particular entity or person, the mediation process is hampered and often takes a great deal longer.

The Shortcomings of Assumption

In a mediation in which I participated several years ago as defense counsel, the mediator did a number of things that put the proceedings on shaky ground. First, despite the fact I had the settlement authority in the room, he never faced me. He turned his chair toward my male colleagues who were present and spent time talking about football. When I attempted to interject, he brushed me aside. He assumed I had little to add in a conversation about football, when the opposite was true. One of my colleagues in the room noticed the behavior as well and we discussed it after the session. Much like the earlier examples in which I was mistaken for various other people, it served to make me feel as if I was not wanted in the mediation. The mediator’s actions also did not encourage me to go the extra mile to resolve the matter. Ultimately the case did not settle. I cannot say it would have settled if he had treated me differently, but one of the key components of a successful mediation is the parties feeling comfortable with the process. The likelihood of success was greatly diminished by my feeling of exclusion.

Recently I mediated a case where an adjuster was physically present. During opening statements, the Plaintiff discussed her injuries as a result of the subject collision, some of which were of a sensitive nature. The adjuster was quite moved by the Plaintiff’s account, and began to see her as more than the narrative constructed via her medical records. She began to relate to the Plaintiff as an individual with a family to support, a woman who volunteered in her community and someone who had been adversely impacted by this accident. The more the adjuster got to know the Plaintiff throughout the course of the mediation, the more she wanted to work to resolve the case. Before the parties met for the opening statements, the adjuster was convinced she knew everything necessary to evaluate this matter; it became clear she just understood the tip of the iceberg.

I mediated a case several months ago in which Plaintiff’s counsel thought she had all of the information she needed about her client. As I talked with the Plaintiff about the incident that led to the mediation, counsel learned enough to completely change the strategy of her case. She thought he knew who he was: a married, middle-aged man with children. That was only part of the picture. Plaintiff’s counsel had had plenty of clients like him before, so she had not done the extra work to truly understand the individual and his motivations. This Plaintiff had been involved in an accident with his minor son; his well-being was paramount. He was terrified the child would have to relive the incident on the stand and the Plaintiff wanted to avoid that scenario at all costs. Counsel underestimated the importance of that element of the case, assuming maximizing his award was the most important factor for her client.

Strategies for Success

There are myriad examples to highlight the negative effects of bias, prejudgment, and assumptions on mediation. The challenge is how to combat it from your seat. The following points from Kenneth Cloke can be useful to keep in mind:

  1. In every culture, people want to be accepted, listened to, acknowledged and respected. The manner in which people communicate these values may be different; it is worth the time and energy to determine what shows a person they are receiving that respect. I’ve found for some litigants, hearing the other side is sorry for the circumstances leading to this point starts a mediation off on the right foot. 
  2. Most of the time, there are no absolute “right” responses – only relatively “right” or “wrong” ones within a given culture. I mediated a case earlier this year involving an elderly African-American male who claimed he was injured due to the negligence of a large grocery chain. Although he said he was still dealing with injuries from the incident, he said his doctor told him there was nothing else he could do, and the Plaintiff did not seek a second opinion. This, as one could imagine, was a big sticking point for the defense. Within the Plaintiff’s culture, however, this was not an unusual response. I have witnessed the same phenomenon in my own family.

Five years ago, an elderly relative had a spontaneous episode affecting her eyesight at a holiday gathering at my home. She was visiting from out-of-town at the time. We rushed her to the emergency room at the closest hospital where a doctor informed her there was nothing to be done.  Because it was a holiday, there were no specialists available. She was instructed to go home and wait to see if her eyesight returned. It was only after younger members of the family prodded her to seek treatment beyond the emergency room that she consulted with a specialist, who was able to reverse some of the damage. For some older people, the word of a doctor is incontrovertible. Before the internet allowed laymen to diagnose every itch, sneeze and cough, people relied on the advice of their physicians much more. Taking the time to attempt to understand the norms of a party’s culture can serve to improve mediation outcomes.

3. There is no set of universal problem-solving, mediation or conflict resolution methodology applicable to every case. Just as every party is an individual, so is every case. What works well within the confines of a case to move it toward resolution is more art than science. Patience for that process and an open mind help to facilitate an environment for success.

4. Cultural conflicts do not disappear when we ignore them. A young, unmarried minority Plaintiff with six children participated in a mediation last year. She felt everyone else involved in the process – including her own attorneys – was judging her for some of the decisions she’d made in her life. She had no trust in the process, because she did not feel as if anyone related to her, or even tried to do so. She was relying heavily on the advice of her mother whom she was calling frequently during the proceedings. Until she could sit down and discuss her concerns with the mediator, she did not feel open enough to fully participate in the process. They were able to connect on several levels. Once that happened, she started to engage and the case ultimately settled, allowing her to move forward with her family.

5. Bias influences what and how we see, hear, think and feel.  Whatever conflicts with that may not be received or understood. For individuals not aware of their implicit assumptions, reaching them may take extra effort and creativity. As a mediator, presenting information in different ways, i.e., reality testing of parties rather than giving straight assessments is one way to combat this issue. It is more effective for most people to work toward an answer rather than being told what to think

6. People communicate because they want to be understood. It is incumbent upon those who are present to make sure they understand what a person is actually trying to convey. As a mediator, I often repeat what I’ve heard a party or an attorney say to me to make sure I comprehend their statement. Differences in communications styles are a given in any mediation; an attempt to deepen understanding by speaking more is always welcome. By the time a dispute reaches mediation, it is clear there is a breakdown of some sort between the parties. A great deal of the time, that breakdown is in communication. Mediation offers parties the chance to be heard and understood in ways not supported by the traditional litigation process.

7. Do not assume anything. Mediation is the opportunity to break down barriers and assumptions, not maintain them. Take the time to find out the priorities of the other side. Even if a case does not settle at mediation, the parties should be able to walk away with a greater understanding of the matter. If the lines of communication are left open, there is also a better chance of settlement down the line.

8. Put yourself in everyone’s shoes. As attorneys, it’s commonplace for us to view an argument from the viewpoint of opposing counsel. Within the context of a mediation, however, going the extra mile in the parties’ shoes can make the difference. The business partners whose friendship is in tatters along with their venture can need a very different approach compared to a personal injury plaintiff or a former employee alleging discrimination. The successful mediation is often achieved by understanding the complex interpersonal dynamics not present in any pleading.

9. Get physical. There are a number of ways in which a party in a mediation can show his or her engagement with the process:

  • Engage in comfortable eye contact with the speaker
  • Avoid slouching
  • Avoid fidgeting
  • Give a speaker undivided attention (i.e., no checking e-mail, etc.)
  • Maintain an open body position (i.e., avoid crossed arms)

10. Talk less; listen more. Use your silent time to observe non-verbal cues of the speaker.

Conclusion

By employing these techniques during mediation, parties can not only face their own biases and assumptions, but also be better positioned to resolve their cases. Allowing all participants in the mediation process the ability to be heard, respected and participate effectively restores control to those who need it the most while improving efficiency in our court system.

[1] Banaji, Mahzarin & Anthony G. Greenwald. (2013) Blind Spot: Hidden Biases of Good People. New York, NY: Bantam, pp. 128-130.

[2] Id. at 83. Lardieri, Alexa. (October 24, 2017) Despite Diverse Demographics, Most Politicians Are Still White Men. Retrieved from https://www.usnews.com/news/politics/articles/2017-10-24/despite-diverse-demographics

-most-politicians-are-still-white-men

[3] Banaji & Greenwald at 57-58.

[4] Cloke, Kenneth. (2018) Politics, Dialogue and the Evolution of Democracy: How to Discuss Race, Abortion, Immigration Gun Control, Climate Change, Same Sex Marriage and Other Hot Topics. Dallas, TX: GoodMedia Press.

 

 

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