The Mediators' Role: Tackling the Illusion of Objectivity
April 2004
Recent examples show how those in authority
can dismiss apparent biases, stating they can be easily put aside. Studies show
this is impossible. If so, how mediators can tackle their illusion of objectivity
and stay neutral during the mediation process? Using psychological studies and
open-ended questions, mediators can make their biases irrelevant.
by Elizabeth A. Moreno,
edited Jeff Kichaven
EAMPC
Recently Supreme Court Justice Antonin Scalia indicated that there was no
conflict of interest in going on an exclusive hunting trip with Vice President
Dick Cheney, who is involved in a case now before the Court. In December top
scientists at the National Institutes of Health (NIH) acknowledged taking consulting
fees from drug companies with products being evaluated by the NIH. And earlier
this year, Rep. W. J. Tauzin (R-La), chairman of the House Energy and Commerce
Committee, became the subject of debate when it became known he was being offered
jobs by powerful motion picture and drug industry lobbies with issues before
the committee.
Whether it is an employer weighing the promotion of a long-time friend—who
is not qualified for the job—or the coach of your son's little league team—who
wants to place his talentless son as the starting pitcher—it's common to think
that if you can step back and be objective, this will insure impartiality. Psychologists
who study the effect of bias on decision-making indicated that it's impossible
to be impartial and exhibit no bias. Recent studies of employment discrimination
jury verdicts in California substantiate the bias of humans.
Given this, how can mediators tackle their illusion of objectivity and stay
neutral during the mediation process? Psychological studies have shed the light
on biases in human beings and give mediators guidance in keeping neutral.
Human Beings' Unconscious Bias
Researchers of studies conducted by Stanford University have concluded that
even when we think we are compensating for our bias, it is not something we
can easily remove or factor out of our decisions because it operates unconsciously.
We are far better at spotting bias in others than in ourselves. Researchers
in the Stanford University study concluded that there is an assumption that
our own golden rule of objectivity works well for ourselves—but others' rules
do not work for them. (The Bias Blind Spot: Perception
of Bias in Self Versus Others (2002))
The same person who is fairly objective when judging himself or herself may
be highly biased when assessing others or vice versa. Researchers have concluded
there is no way to predict whether a person is likely to be biased or unbiased,
or when. And contrary to expectations, a successful career built on making carefully
reasoned decisions may only reinforce the illusion of objectivity.
How do mediators deal with these unconscious biases? Researchers have suggested
that in the best of all possible worlds, people should come to recognize that
they are no less susceptible to such biases than their adversaries. In the imperfect
world, we should at least endeavor to practice a measure of "attributional charity."
We should assume that the "other side" is just as honest as we are (but not
more honest) in describing their true sentiments. However, much of these may
be distorted by defensiveness, self-interest, propaganda, or unique historical
experience.
Given this daunting research as to our unconscious biases and how our own
biases of others are unpredictable conscious behaviors, how can mediators conduct
a fairly objective mediation and leave their biases behind? How can mediators
create a neutral playing field for claimants or litigants?
Recognizing Biases Forms a Neutral Mediator
Mediators must recognize that they have inherent biases. We all do. We have
all had negative experiences that have colored subsequent impressions. Consider
a woman who loses her job, blaming her male supervisor. From then on, the memory
of the disaster is colored by the experience, and the bias against male supervisors
remains.
Mediators may argue that because they are not the ultimate decision makers
in a mediation, they do not need to be aware or even recognize their biases.
However, by not recognizing their own biases and acknowledging their susceptibility
to biases, they create barriers to resolving conflict. Mediators strive to remove
barriers in the mediation process, but if they are not cognizant that they have
biases, the mediator will never become a true neutral. If a party to the mediation
accuses mediator of being biased, the mediator should stop and think. Remember,
studies show that we can be biased when assessing others or vice versa, but
there is no way to predict when this might occur.
Many mediators move from being facilitative to evaluative in the mediation
process. The evaluative mode involves evaluating the merits of the case, the
credibility of the parties, and the ultimate settlement value. The evaluative
technique can cause mediators to take on an adversary position and thus become
susceptible to their own biases. The mediator loses the attributional charity,
assuming that one side is just as honest as the other side. This results in
the mediator placing a barrier to resolving the conflict by losing the sight
of the goal: finding common ground.
To remain neutral during mediation, the mediator should not be baited by
the parties into rendering a jury verdict, believing he or she will offer a
uniquely objective perspective on the truth. Instead of playing the jury and
rendering the verdict, the mediator needs to ask open-ended questions, with
follow-up questions. This helps guide the parties in evaluating their own case
and at the same time raises issues that may not have been considered.
For example, in a discrimination action, the mediator may entertain the question
to the parties about how a jury sitting in a specific judicial district would
view the parties based on his or her sex, sexual orientation, or race. Or the
mediator might ask the parties to consider, in coming to a settlement demand
or offer, what percentage was it increased or lowered based on the judicial
district where the case was pending. Pointing out weaknesses of a party's case,
if done in a nonconfrontational manner, will also force the parties to more
objectively evaluate the case.
One Mediator is Better than 12 Unknown Biases
Given that each individual has unconscious biases and is susceptible to others'
biases, is it better to even the playing field with a 12-person jury than a
single mediator? Probably not. Studies have shown that juries do not render
unbiased decisions. For example, David Benjamin Oppenheimer, a professor of
law at Golden Gate University School of Law, came to the conclusion that California
jury biases against minority women involved in employment discrimination claims
are even greater than plaintiffs' lawyers anticipate. His conclusion was based
on a study he conducted covering 2 years of reported jury verdicts in California
employment-law and employment-discrimination cases which revealed that plaintiffs
won just slightly more than half of the cases tried.
Dr. Oppenheimer broke the cases down by category and by the plaintiffs' racial
and gender characteristics and found that African-American women bringing sex-discrimination
and race-discrimination claims won only 17 percent of their cases. By contrast,
whites claiming reverse discrimination and men claiming sexual harassment by
other men won all their trials.
This study and others like it show the value of a mediator. With a jury of
12, the parties are dealing with 12 unconscious biases who make the ultimate
decision in resolving the dispute rather than a mediator who is acting as a
catalyst—who is not the ultimate decision maker—to resolve the action.
A mediator brings the parties together in an attempt to resolve the action,
not to serve as a fact finder. Even though the mediators may lead the parties
to evaluate the case, the parties still make the ultimate decision to resolve
the action. When a party is before a jury, not only does the party have to present
the facts, but also present the facts in such a way as to not raise the unconscious
biases of the jurors, whatever they might be. Trial attorneys are very resourceful
and talented in trying a case, but sniffing out those unconscious biases is
a daunting and insurmountable task for even the most experienced trial attorney.
When it comes to mediation, the biases that are on the table should be those
of the parties. The biases of the mediator should not come into play.
Conclusion
So the questions remain: are Supreme Court Justice Antonin Scalia, the top
scientists at the National Institutes of Health, Rep. W. J. Tauzin (R-La), chairman
of the House Energy and Commerce Committee, the employer weighing the promotion
of a long-time friend, or the coach of his son's Little league team considered
unbiased? Studies reinforce that all of these individuals are indeed biased.
Rep. Tauzin has recognized his bias by resigning as committee chairman. Justice
Scalia and NIH scientists said that, despite appearances, their judgment had
not been compromised, that they were capable of making independent decisions
uncolored by bias. As research studies have shown, a successful career built
on making carefully reasoned decisions may only reinforce the illusion of objectivity.
The decisions made by Justice Scalia and NIH scientists are a perfect example
of the illusion of objectivity.
Elizabeth Moreno is a mediator and arbitrator with EAMPC, a resolution service in West Los Angeles.
Prior to engaging in dispute resolution on a full-time basis, she was in private
practice representing insurers and policyholders for 20 years. She can be reached
at .
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