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<xTITLE>A Conversation About Whiteness and Mediation</xTITLE>

A Conversation About Whiteness and Mediation

by Jen Reynolds
July 2021

Indisputably

Jen Reynolds

FOI Alyson Carrel (Northwestern) and LCSW Jasmine Atwell (Loyola ‘JD22) recently discussed Sharon Press and Ellen Deason’s new article, “Mediation: Embedded Assumptions of Whiteness?,” published in the Cardozo Journal of Conflict Resolution (and available on SSRN). Press and Deason’s article explores concepts from the book, Me and White Supremacy, as applied to the practice, process, and structure of mediation.

Earlier in July, Jasmine and Alyson discussed their reactions to the article, why the article might be important to assign in a mediation class, and how faculty can approach facilitating a conversation about the article. Alyson’s writeup of this conversation follows:

Who are we and how does that affect our understanding of this article?

Alyson Carrel: I have been in the ADR field since my teens. In my twenties, I received my first court-based mediation training from one of the authors of this article, Sharon Press. This has been my one and only career, so a core part of my identity is as a mediator, someone who is a problem-solver and sees opportunity where others might see barriers. And as a white woman, the last thing I often think about in my identity is race. I was in one of the Me and White Supremacy book clubs for ADR legal educators that Sharon and Ellen describe taking place during the summer of 2020 in the aftermath of George Floyd’s murder. The past 18 months have confronted me with my privileged and white centered approach to teaching, and I really appreciate the opportunity to talk with you about this article.

Jasmine Atwell: I’m a newer mediator, with recent initial training in this work. Also, I’m a psychotherapist and law student, who plans to practice ADR upon graduation. Further, I identify as an Afro-Caribbean woman from a Muslim family. Although I was born in the United States, my family’s from Trinidad and that shapes my blackness a lot. These are some of the primary identities that are important to me and that inform how I viewed this article. Most systems in our western, white society are not designed for people with my intersections of identity because their creators historically have not valued us. I’m practiced in recognizing spaces that do not value my identities and learning how to get many of my needs and interests met in them. This article reminded me of that practice and made me somewhat hopeful that the system of mediation can be reimagined with and for people like me.

Who is this article for?

AC: When I first read this article, I was excited. I thought, “Fantastic! We’re finally having this conversation, we’re actually unpacking these issues, we’re doing the work.” We, meaning white people, are doing the work. But I also recognized it was white people talking to white people, and if what we’re actually trying to do is create more inclusive conversations, white people talking to white people isn’t exactly meeting the goal.

JA: Your last point raises the question of how inclusive conversations are formed and who needs to be including whom. Typically, it comes down to white people in predominantly white institutions including others in their conversations. So, maybe the initial conversation this article provokes does need to involve white people working together to recognize why those inclusive conversations are valuable and what preliminary work is needed to move toward meaningful inclusion in or even reinvention of conversations.

What is this article contributing?

JA: People will have mixed reactions to that question and to the article more broadly. If what I just said about white people and strategy for building inclusive conversations is true, the article could challenge people who historically have embraced western white approaches to mediation as only good and justice-serving to learn it’s more complicated than that. And, even for people who might be reading this article and saying, ”This is not radical! Why are you just now talking about this,” it might still be meaningful to be in a program where people are being evaluated in their early training on having read this and engaged with its ideas.

There’s no reason why somebody should be able to get through any ADR training program having never interrogated mediation’s embedded white supremacy and their reactions to it. That blatant omission is the reason why an article like this has to exist. I see it as every mediation educators’ job to encourage this kind of interrogation and help learners at least start processing the complicated emotional responses that come from identifying and critiquing white supremacy within all our systems.

How does this piece get incorporated into classrooms and training spaces?

AC: I want to include this article in my classes but am concerned that because the article, at times, seems to be speaking to white readers only, I may be perpetuating the predominantly white institutional spaces of most law schools, and if it does, then what does that mean?

JA: The culture of the space will guide how this article gets incorporated and, given the ways so many people teach or facilitate, culture starts with the teacher or instructor. So, even before assigning others to read a piece like this, the person facilitating conversations about it needs to self-reflect on how safe they feel having these kinds of conversations and getting close enough to students emotionally and psychically to hear and contend with what students have to say. That requires being honest about their own responses, defensiveness, sense of being heard or seen by the authors, or whatever their responses to the article were.

One important thing to prioritize if integrating this article is to have multiple conversations in a room at once by acknowledging peoples’ different experiences. What if a professor of an ethnically diverse class started a discussion with, “There are people in this class for whom this article’s content is not a revelation, and it might feel invalidating in some ways and useful in others to know that the white people for whom this article was written are being exposed to these ideas. We need to hear about and prioritize how this article landed with you even if you are not its intended audience.” And, in the next breath, to acknowledge, “There are people in this class for whom this article’s content might feel like an attack on who you are and your goodness as a person and a professional. You might feel something like loss and grief to know you caused harm through mediating in these ways or operating in the world in similar ways. We’ve got to recognize and contend with your experiences, too.” I’m curious about how to contain all of this in one learning space. But, as mediators, I think we need to be up for the challenge of recognizing complicated and often conflicting experiences and tending to their respective needs and interests simultaneously.

AC: As an Afro-Caribbean woman law student trained in one of the approaches to mediation this article critiques, what impact do you think this would have had if an instructor introduced it in your classes or training, and should it be shared in those settings?

JA: My answer to the latter question is yes, but then I keep thinking about where and how to integrate this into the curriculum. Some part of a mediation class or training is just getting people exposed to what mediation is. But the trick is that once you define a thing, anything you do next will be in conversation with that original definition. So, I could see students, who want to get good grades, impress their professors, and secure jobs in the future, feeling undermined if they learn a western white approach to mediation as good or neutral and then receive this piece about it being problematic in all these ways.

AC: So, to address your concern, an instructor could have a reading about the power of reframing followed up immediately by the relevant section of this paper. And you could start a training or class by saying “we’re going to teach you mediation the way it’s been historically taught. There is also an article in your materials that looks closely at mediation to recognize where embedded whiteness is part of the structure. As you go through this traditional approach, we encourage you to identify where you want to grow based on feedback the article gives and what your particular growth might look like”. This could help people cultivate some personal reflection on the ways they reacted to this article’s criticisms and on what action the article compels them to take.

JA: Yes, and what we’re saying requires willingness to define or reimagine mediation together. This would require asking questions like, “What do you make of the risks and harms inherent in these strategies? How else could this look?” This teaching or facilitating approach could undermine that “the white way is the right way,” white supremacist belief system the authors are exposing.

Stepping outside of the classroom, how do conversations about this article improve the field?

AC: I sometimes wonder if the mediation field has fought so hard for our legitimacy and our very existence that we quickly dismiss or debate arguments that claim we provide anything less than an empowering and self-determinative process. Because we fear that by recognizing those critiques, we undermine the legitimacy that we have fought so hard to achieve. This past year has demonstrated to me that it is not only important that we recognize these critiques, but accept that they are valid and will help our field grow and innovate. And I’m excited that Sharon and Ellen wrote this piece to spark deeper reflection.

JA: That makes sense. Professionalization does require us to conform to some ideal so, often, our imagination of who we are professionally ends up being so much better than our reality. That said, we don’t have to throw out the entirety of who we are professionally to improve. We still have some tools that we can use to make mediation a more anti-oppressive practice. Maybe this article itemizes existing harms so we can do an accounting of what should go, what can stay, and what new skills we need to develop collaboratively to evolve the system of mediation.

How does our relationship inform the conversation we had about this article?

JA: Our relationship started with you evaluating my performance as a student in an end-of-term simulated mediation where I was legal counsel for one of the parties. Since then, we’ve become colleagues and friends. I love talking to you because we’re creating a dynamic that makes it possible to do things like this reaction piece, while also thinking and feeling together about life beyond our work. The topics we discuss range so much, and that might have to do with our many differences that we both seem committed to acknowledging and learning about through our relationship.

AC: I’d like to reflect on how we created this dynamic, and to what extent our conversation can provide an example or insights into the conversations that we think others will have or that will be sparked by this article. And two things come to mind: one is that last year I explicitly asked for your expertise and responses to something I was working on, which shifted our relationship from instructor/student to you being the expert and me learning from you. And then the other thing is that in our conversations you have a way of always starting the conversation with a type of check-in that has opened up space to go beyond a solely professional work conversation.

JA: Those are examples of how we’ve always been accessible to one another. Even when you were evaluating my performance, you were appropriately boundaried, but there wasn’t that artificial distance between teachers and students that makes it feel like the learning and teaching happen unilaterally. You’ve always valued what I’ve had to say by usually letting me speak first, asking thoughtful questions, being mindful of ways you project your expectations onto what I say, and providing candid feedback that shows me different perspectives. These forms of respect have made it easier for me to speak because it seems like you care where I’m coming from intellectually and emotionally.

______________________
JA & AC: Thank you Sharon Press and Ellen Deason for writing this important piece, inviting us to have this conversation, and suggesting we publish the edited transcript on indisputably.org. These discussions are important, and we hope this edited transcript of our conversation provides support and encouragement for others.

Actionable Takeaways from Our Conversation for Instructors:

  • Read this article because your curriculum could be missing this critical analysis to the detriment of you and your students.
  • Reflect on what the article means to you and how you will work with the thoughts and feelings that you and your students have in response.
  • Assign this article so that you can weave it throughout the curriculum instead of relegating it to one module.
  • Create space beginning in the first class to reflect on the underlying assumptions of mediation, including embedded whiteness.
  • Recognize students come to class with experience resolving disputes and expertise on what works for them, given the unique intersections of their identities.
  • Embrace student reflections and differences of opinions and recognize that the way we’ve traditionally taught mediation may not be the “right way” 100% of the time and that we can learn from our students so that we do not fall into the “right way” being the “white way.”

Biography


Jen Reynolds is an expert in the area of dispute resolution. Professor Reynolds received her law degree cum laude from Harvard Law School, a master's degree in English from the University of Texas at Austin, and a bachelor's degree from the University of Chicago. While at Harvard, Professor Reynolds served as an editor of the Harvard Law Review; as a research assistant for Professor Arthur Miller on his treatise, Federal Practice and Procedure; and as a teaching assistant, researcher, and Harvard Negotiation Research Project Fellow for the Program on Negotiation.

Before law school, Professor Reynolds worked for seven years as a systems analyst and associate director for information technology at UT Austin. After law school, Reynolds was an associate at the Atlanta office of Dow Lohnes PLLC, working primarily on First Amendment and employment cases. She joined the faculty at the University of Missouri School of Law as a Visiting Associate Professor in 2008 before joining the Oregon faculty the following year.

Professor Reynolds teaches civil procedure and negotiation. Her research interests include organizational dispute systems design, problem-solving in multiparty scenarios, judicial decisionmaking within the context and constraints of rules of procedure, and cultural influences and implications of alternative processes.



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