(Mediation – Stripping Yourself of Preconceptions and Implicit Biases) 

Mediators are called “neutrals.” Almost every article or standard you read about the role of a mediator mentions that mediators must be impartial. It is also often discussed that mediators must not be prejudiced or biased (even implicitly), or that mediators must be without pre-conceptions.  Just what does all this mean, and what can mediators do to assure they are meeting these requirements? 

Every mediator comes to the process with a lifetime of experiences, and often with decades of experience with legal disputes. Mediators may themselves have been a party to a dispute.  Attorney mediators may have spent much of their careers representing only defendants, or only plaintiffs, and may therefore have an inherent distrust of the opposing side. A person who has daughters may be particularly sympathetic to female plaintiffs. A person who is disabled, or is close to someone who is disabled, may be particularly sympathetic to disabled plaintiffs. A person who has owned their own business may be sympathetic to businesses which have been sued. A person who has been wrongly accused, in litigation or elsewhere, may be sympathetic toward defendants. A person could even be prejudiced against or biased in favor of someone based on such seemingly arbitrary things such as the color of their hair or their height. 

The Model Standards of Conduct for Mediators (which is a joint publication of the American Arbitration Association and the Association for Conflict Resolution) provides the following guidance on this topic: 

• A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.  
• B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. 
  • 1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. . . . 
• C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.  

[Model Standards of Conduct for Mediators, 2005, Standard II.] The first sentence, “A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner,” sounds easy enough. But the second sentence defines impartiality as “freedom from favoritism, bias or prejudice.” Can anyone be truly and completely free of these things? And where do preconceptions fit in? Shouldn’t mediators be free of those as well? Studies have shown that when asked to picture an American, most people envision a white male. [Banaji, Mahzari &AnthonyG. Greenwald (2013) Blind Spot: Hidden Biases of Good People, New York, NY: Bantam, p. 83.] Does this mean all these people are sexist and racist? Surely not, but it does mean we all have preconceptions. Although there are many female judges these days on courts at every level, when picturing a judge, don’t the majority of people still picture a man in a black robe – not a woman? In the early days of my legal career, I was sometimes mistaken for the court reporter. I had a male secretary for a few years, and callers would sometimes refuse to speak with me and insist on speaking with “Mr. Rhodes.” Most of these people were probably not actually prejudiced against women attorneys, but they had a preconception that in a male/female situation, the man would be the attorney and the woman would be in the support position. 

Our brains are not blank slates, and we would not be much good to people if they were. It is our years of experience which make us skilled at what we do. Unfortunately, by-products of all that experience include preconceptions and implicit biases. (An implicit bias occurs automatically and unintentionally, but nevertheless affects judgments, decisions, and behaviors.) We must do our best to strip our minds of biases, prejudices, and preconceptions. We must be especially vigilant in searching for implicit biases within our own thinking and stamping them out. 

Many people may be quick to adjust their preconceptions and implicit biases upon receiving new information, but is it possible to avoid them to begin with? Our preconceptions and implicit biases are formed over a lifetime based on the values we were taught and the experiences we have had. Stripping our minds of such things is very difficult, but we must learn to do so. Just how does one go about that, you ask. Here is a list I came up with which is definitely not exhaustive, but which will hopefully be helpful to you: 

1. Continually remind yourself to keep an open mind. First, stop and ask yourself whether you have any preconceptions or implicit biases which could affect your thinking concerning this particular dispute or these particular parties. Take a moment to try to clear your mind of preconceptions and implicit biases before you start reading the mediation briefs, and again before you begin the actual mediation. 
2. Be respectful to all the parties and really listen to them; what they say might surprise you. Also, people have different styles of communicating based on education, gender, and where they grew up. If the parties’ manner of communicating is different than yours, do not let that influence your thinking.  
3. During the mediation, try not to assume anything. One of the key ingredients of a successful mediation is getting to the details and causes of the dispute, as well as to the goals of the parties. If you make assumptions, you skip over this critical step.  Sometimes the sole cause of a dispute is a legitimate mis-communication or misunderstanding. Although that is not common, it happens. If you assume one side is telling the truth and the other is not, you will miss the opportunity to get to the heart of the matter. Also, if the case does not settle at the mediation, the parties should at least leave with a better understanding of the case and of the other parties, which can hopefully lead to a resolution at a later date. This is not likely to happen if you approach the mediation with assumptions. Additionally, something you thought was of paramount importance to a party may actually not be the primary factor in their decision making, but you may miss this important information if you allow preconceptions and implicit biases to cloud your thinking. 
4. During the mediation, make sure you are treating all parties with impartiality and neutrality in mind. Make it a point to remind yourself of this. If a party believes you are favoring the other side they will not trust you, and the chances of achieving a resolution are lessened. At best, it will take longer to get there. 
5. Show an equal amount of respect to all parties. (Don’t just feel it – show it.) I have seen mediators call my client by their first name, and refer to the opposing party as “Mr.” or “Ms.” or “Dr.” This can send the message that you have more respect for the other party. If you want to call parties by their first names, ask their permission, and then make sure you do the same thing with the other side. I once conducted a mediation where all the parties were doctors. They all invited me to call them by their first names except for one, who insisted on being called “Dr.” To make sure I was not sending the message that I valued this person’s position more than that of the others, I explained to the other parties that I was calling everyone by what they preferred, and this particular person preferred to be addressed as “Dr.”  

Can mediators completely eliminate prejudice, bias (including implicit biases), and preconceptions from their minds? Hopefully we can all eliminate prejudice and explicit bias. I doubt whether all mediators can completely eliminate implicit bias and preconceptions, but by making a conscious attempt to identify and then eliminate our implicit biases and preconceptions, we can all be better mediators. 

Need more information? 

GAYLE ESKRIDGE may be contacted by phone (310/303-3951 or 916/898-1469), or by email (geskridge@eskridgelaw.net). Please visit my website at www.eskridgelaw.net. 

This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Gayle Eskridge.