Mediators’ And Attorneys’ Perception Of Prejudice In Mediation: A Survey

In my twenty-six
years as a third-party neutral, thirteen as mediator, I believe I have seen
many instances of prejudice and injustice. Countless times I have had a sense
that a party’s language, education, economic status or skin color was an
unspoken factor both in the dispute itself and in the process of negotiations
and arguments at hand. I also believe
I have seen the “race card” or “protected class card being used.” By this I mean situations, when a party
believed she/he was unjustly treated not necessarily because of membership in a
protected class, but making such an argument in order to reach a desired goal.

Recognizing
that, not unlike beauty, discrimination and prejudice may be in the eyes of the
beholder, I was curious to find out if others have had similar experiences and
had reached similar conclusions. This curiosity and the fact that Thurgood
Marshall School of Law in Houston, Texas was presenting a symposium on the
subject of injustice prompted this study. As a result, I conducted a survey of
experienced mediators and advocates. By writing such an article, I wanted to
share my experiences and learn from the experiences of others.

A series of
questions was developed to ask both mediators and advocates about their
experience with discrimination in mediation.
The questions were then sent via email to members of various mediator
and attorney groups. The questions
asked practitioners whether, either as mediators or as advocates, they had experienced
discrimination in mediations. If so, they were asked to elaborate about such
experiences, and to give an opinion as to what should be done in similar
situations.

Survey Responses

With only 45
people answering, the responses were disappointingly low. Yet some responses
were very telling and informative and will show some of the perceptions of
practitioners in the field. Though
small, the sample group was diverse. Regarding race or ethnicity, 20 were Anglo
or European American; 16 Hispanic, 5 African-American, 2 Asian-American and 2
who mentioned both their European and Native-American heritage. Regarding
professional background: 29 were primarily third-party neutral, 8 were
advocates or negotiators and one stated he was both. The great majority of
respondents, 38, resided in Texas while 7 others represented other states.[1] There were 22 male and 18 female
respondents. The majority of respondents fell into the 40-59 age range (28)
while there were eight under 40 and six were 60 or over.[2]

1. Do you believe that a person’s race or nationality can
affect the outcome of mediation or settlement negotiations?

To this first question, the vast majority of
respondents (forty-two) answered either yes or a qualified yes. By “qualified” I mean a “yes, but….” answer.
For example, some respondents stated that they believed that, rather than race
or ethnicity per se, it was the dynamics of class or power differences that
really affected the outcome of mediation.[3] Others believed that it was cultural
differences that affected outcomes.[4]

Only one respondent answered “No” to the question.
Yet, this respondent acknowledged a belief in the disparity of economic power
along racial lines. [5] One respondent reflected on the fact that
the presence of discrimination is often in the eyes of the beholder.[6]
Finally, an attorney reflected on how race must play a factor when thinking
ahead to trial.[7]

2. Have you had a mediation or
settlement negotiation where you felt that a person’s race or nationality
affected the outcome?

There were 26
affirmative and 17 negative responses to this question. Those who elaborated on
their affirmative answers gave very different and sometimes surprising
explanations. One believed that a party in the mediation was using the “race
card/protected class card.” The mediator in this case believed that there was
no discrimination and that the complainant was using his ethnicity as a means
to the ends he wanted.[8] Others continued asserting that culture,
language or gender were perhaps just as or more important than race or
ethnicity.[9]

One
response also alerted the author, probably inadvertently, to the potential
presence, yet practical invisibility, of language translation and
interpretation problems.[10]

Of
those who answered “No” to the question of whether they have had a mediation
affected by race or nationality, three of these responses were qualified to the
point that they appeared to say the opposite.[11]
These included one mediator who was possibly the object of reverse
discrimination though she did not label it as such.[12]

3. Did the Issue of Race or Nationality Help or Hurt the Outcome?

Of
the 25 people who answered this question, 15 believed that the issue of race or
nationality hurt the outcome of the mediation or settlement negotiation. A common theme was the feeling of certainty
that a party received less money specifically because of race or ethnicity.[13]
Others continued the theme of language, culture and gender as being important
factors affecting such outcomes. [14] One respondent mentioned power issues or
“dominance” as the significant factor.[15] Another surprisingly said that the
differences in culture probably benefited the outcome.[16]

Other
respondents stated that they were not able to determine whether race or
nationality hurt or helped the outcome,[17]
that it depended on location[18]
or on the type of case.[19]
One final respondent reported a positive outcome when recognition that a
language barrier may have hindered a party in the past helped that party obtain
more time to meet her obligations.[20]

4. Was Something Said
Specifically About Race or Nationality?

Of
23 Respondents, 6 answered yes and 6 answered no to the question of whether
they had heard something specifically said about race or nationality in a
mediation or settlement negotiation. Unfortunately, few of them offered
explanations for their answer. Of those who did, one revealed some cynicism as
to the reasons why race or ethnicity were not specifically mentioned.[21]
Another said that the process would be interrupted if racist comments were
explicitly made.[22] Of those who answered yes, one stated that
the issue was brought up by the aggrieved party.[23]
Another reported hearing race/nationality explicitly brought up to explain the
reasons behind certain types of behavior.[24]

Most
respondents, ten in all, reported a qualified “No, but” answer. They instead
reported implicit or oblique remarks about race and nationality.[25] Finally, one respondent stated that this was
not an issue of discrimination but of language and culture.[26]

5. What Was the
Race/Nationality of the Person You Felt Was Discriminating and the One
Discriminated Against?

Respondents were
specifically asked: If you encountered racism/discrimination/
prejudice, what was the race/nationality of the person you felt was
discriminating and the one discriminated against? One person observed that
racism, discrimination and prejudice were manifested in varied ways towards
different groups.[27] Another
respondent reported having “…seen it in all combinations, White against African-American
or Hispanic. Hispanic against white or African-American, and
African-American against white or Hispanic.”[28]
This was a sentiment shared by others.[29]

As to respondents’
perception of specific groups doing the discrimination, 12 answered Anglos or
whites; 2 answered African Americans and one answered Hispanic. Regarding the
perception of who was discriminated against, the results were as follows:
Whites-1, Blacks-3, Hispanics-7 and Asians-1.
Again, some respondents believed that cultural differences, rather than
race or nationality, was the determinant factor.[30]

Some
conclusions from the Survey

Before sending
them out, I had anticipated that the answers to surveys would show:

1. That the majority of respondents would report belief
that discrimination is manifested in mediation to the extent that it
affected outcome;

2. That the manifestation is not direct but subtle and
implicit;

3. That more minority respondents would report awareness
of discrimination than non-minorities.

Because of the extremely low response, the survey
lacked statistical significance. However, the results seem to indicate that, in
fact, the majority of respondents believed discrimination exists, that it is
often manifested subtly, obliquely and implicitly and that it affects the
outcome of some mediations.

On the third point, however, the
results did not seem to support the expectation of a correlation between
awareness of explicit or implicit outcome-affecting discrimination and the race
or nationality of those reporting such awareness. For example, while some European Americans reported such
experience either explicitly or implicitly,[31]
an African-American mediator surprisingly stated that he had never experienced
it in mediation, not “even one that would lead to strong suspicion.”[32]

Perhaps the lack of correlation has
to do with the fact that most people who took the time and trouble to answer
the survey are those who are already more sensitive to the issues of
discrimination and social justice.

Conclusion

Both
the literature and comments from some respondents made me realize that many of
us are not as sensitive and educated about these issues as we believe we are.
For example, the following comment by one of the respondents troubled me: “Why has this become an issue? Are you seeing
this creeping into mediations more, or is this just becoming a convenient
rationale for those who are not 100% satisfied?”[33]
Yet, I also received responses that showed concern, sensitivity and curiosity
over the results. These make me hopeful.

I hope that this
article has provided enough food for thought and that it will encourage
researchers to further study the problems of discrimination and injustice. I also hope that this article will encourage
both third-party neutrals and advocates, to reflect on how these problems of
injustice persist, and on how we may ourselves be contributing to the problem.
Finally, I hope that it will encourage practitioners to act in constructive
ways to eradicate prejudice and injustice in our field.

* Excerpted from: Under
the Justice Radar?: Prejudice in Mediation and Settlement Negotiations


30 T. Marshall L. Rev. 347 (2005).


End Notes

[1]
These were Colorado, Georgia, Montana, New Jersey, South Carolina and Virginia.

[2]
Not all respondents answered all questions, therefore the answers will not
always total 45. e.g. six respondents did not answer this question.

[3]
R15- regarding power and dominance: “… it
seems to depend on what the dominant group is. Since the dominant group
is frequently male and/or white in the workplace, that is usually the party that
“holds the cards.” But you do find differences, probably most
often in federal service, where blacks can dominate or hold the power in some
offices. I had one mediation case where an Asian manager apparently
favored Asian employees.”

[4] E.g. R7: “Yes, I feel that a person’s race or
nationality can affect the outcome of mediation or settlement, not necessarily
because of discrimination by parties involved but due to differences in the
culture from which both parties come.”

R14: “More specifically, culture
(“race” is no longer being used in cross-cultural surveys).
Yes, cultural factors can influence the dynamics and outcome of
mediation, based on bias of the participants, patterns of self-expression,
authority, etc. Also, if persons of a particular ethnicity tend to be the
bosses, it creates a class issue.”

R8: “Yes, I have experienced some cultural diversity
in my mediations. Not so much a racial bias, as a cultural bias. Cultural
diversity i.e. Military lifestyle vs. Civilian lifestyle can be a big stumbling
block in Mediation.”

[5]
R44: “ No. I think economic
bargaining power is generally the overriding factor. Economic bargaining power tends to be similar along certain
racial lines, however.”

[6]
R2: “However, this is only my
hunch, because I cannot point to any clear instance in my own
practice. That is, I
have never seen an open and obvious act of discrimination, or even one that
would
lead to strong
suspicion. One would have to get into the minds of people to see whether
they are thinking about race when they
make decisions. This means that whether one thinks that race is influencing results is in the eye of
the beholder
and not evidenced by identifiable acts of discrimination.”

[7] R16: “I think that
race does play a factor in terms of social dynamics in some cases / for
example, what kind of impression a client can make on a jury.”

[8] R13:
“Absolutely, and several times…. There was a gentleman from India suing a
very prestigious private school…according to him for racial discrimination.
After the opening statements by both parties were rendered, I realized that
there was NO foul play in the part of the school. The school however…
wanted to settle for the ‘ridiculous’ amount the complainant was
asking. The school did not want any bad ‘blood’ or advertisement
from the suing party. They were afraid a discrimination suit, even
if they won the case would be bad reputation for the school.”

[9] R23: “Yes, but it was more accurately identified as
a cultural bias affected by gender roles.”

And R14: “Yes, I have had cases… in which ethnicity and gender
played a significant role. In my example here, the complaining party
was an over-40 petite female from Central America, with less than fluent
English language skills. The responding party and the two representatives
were African American. The responding manager was a very large….
The complaining party’s advocate was quiet while the two
managers behaved in an aggressive and demeaning manner towards the
complainant. They responded to her story by
rapid-fire loud rebuttals, punctuated by leaning or pounding on the table and
arm waving; the complainant began to cry and wouldn’t answer them. That
drove them wild. She also told me the most important factor governing her
style of responding was in line with her cultural values, which included
submission to authority and that in her opinion the
managers were gross. The managers said that she was a wimp and not
promotion material because she was too passive and not articulate.”

[10]
R13: “…in her [Latina complainant]
opinion, the managers were gross.” Author’s note: Instead of meaning
“gross,” could she have meant “groseros,” a word that means rude? For
language translation issues in
mediation see: Josefina Rendon and Edward Bujosa, Mediating With Interpreters, Alternative
Resolutions
(State Bar of Texas – ADR Section) (March 2002). Rewritten
for: http://mediate.com/articles/rendon1.cfm.

[11]
R36: “No, but I have been
involved in mediation in which an opposing counsel has made reference to my
client’s nationality and immigration status (in a Family Law-Child Protective
Services Issue), and how his status could affect the outcome of the mediation.”

R 32: “No, but I have had many, many, many that were
about that type of behavior on one or more parties’ part.”

[12] R20: “No, but I had
a party (black race) who didn’t want me to be the mediator because I
was white.”

[13]
R41: “Yes, it resulted in a settlement amount
for much less that would he have been Anglo.”


I once had a case of false imprisonment,
the defendant was big retail chain who was negligent in entering
information on a stolen credit card. My client was wrongfully jailed and
spent several days in jail because he could not make bail. At
mediation, the mediator even told me that the fact that my client was
a Vietnamese was a factor on the retailer not offering more
money. Plus I think the fact that my client was represented by a
Hispanic, made the case less valuable. I truly believe if my client would
have been represented by an Anglo, that he would of received more money.”

R42: “The case settled. But, there is no doubt that my
client’s ethnicity was a factor in the carrier’s evaluation and in what they
would pay to resolve the case.”

R28: “YES –
if complainant is a minority, more persuasion and negotiation is needed to
reach settlement. Minorities have more hurdles to jump in achieving
settlement. It is necessary for them to prove themselves worthy
of receiving monetary sum.”

[14] R7: “The issue of national origin made the process of
mediation more difficult due to the culture differences in which both sides had
completely different attitudes toward open discussion and “face
saving.’”

R14: “It appeared that culturally
influenced differences were present in the
parties’ communication / behavior patterns and did much to govern the
outcome, in a negative manner. The managers behaved as though they
disrespected the complainant and were annoyed by her lack of reciprocal
assertiveness and their difficulty in understanding her. The
complainant did not come prepared to put options for herself up on
the table and expected the mediator to be her protector (her advocate was
neutralized and ill-prepared).”

[15]
R14: The person in the non-dominant group is
always the one at a disadvantage.

[16] R12: “To the best of my ability as 3rd
party neutral, there was no negative impact or influence of race or
nationality. In some instances, where culture motivated a party to work
hard to find a solution and to end the conflict, such helped the process.”

[17] R13: “Help
or hurt..? I am not sure, but it changes it.”

R22: “I can’t say it helped or hurt the
outcome. In the instances I recall, the parties were able to reach a
resolution which was acceptable to all parties.”

R23: “I do
not believe that I can make that assessment.”

[18] R31: Depends on where it is. In San Antonio, Hispanics get
more money that Whites. In Fort Worth, minorities suspected of lying
about their cases get less money than Whites who may be lying.”

[19]
R34: “Some helped and some hurt. An example of
race hurting outcomes would be homeowners’ insurance cases. I do a fair number
of mold cases in which the plaintiff homeowner is suing their own insurance
carrier for coverage. I believe that there are some insurance carriers who
settle more favorably with white homeowners than with minority homeowners.”

[20] R36: “That case is still pending due to the fact that
I was able to raise the issue of inadequate services being rendered to my
client by TDFPS-CPS due to their inability to provide translated services and
Spanish-speaking worker sometime throughout the history of the case. Therefore,
my client was granted more time to work on his case plan and the Dept. was
ordered to provide him with the necessary services.”

[21] R13:
“No. Everybody is very careful not to mention the ‘r’
word. However, in most cases it is pretty obvious!”

R28: “NO
– employers know not to make an issue of race during mediation. They
want to convince everyone that they are fair and even-handed in application
of their policies & practices. To avoid the appearance of guilt or
discrimination, they do not directly address race/ethnic origin or anything
that would suggest illegal factors were used.”

[22]
R23: “No, and if it had been that blatantly identified, the process would
have been interrupted.”

[23]
R15: “Frequently the aggrieved does mention it.”

[24]
R27: Yes. Typically in these cases at
some point a party has declared what their race/nationality is in an attempt to
provide explanation for their behavior (communication, thinking, etc.).

[25] R42: ‘”Not directly;
it was darn sure evident in reading “between the lines” from the defendant’s
arguments.”

R7:
“Nothing was said explicitly, but implicitly comments by both parties indicated
these differences were in play.”

R16: “Nothing
was said directly against my client but condescending remarks by other side.”

R19: “….a) an offer was made in writing, thru the
mediator, (attempted) directly to the client and not thru me, in Spanish and in
Mexican pesos instead of US dollars. “…that’s a lot of
money in Mexico…”

b) mention that the
claimant/deceased is an illegal alien, thus settlement on the case should not
be that much, regardless of the facts evidencing defendant’s negligence.”

[26] R39: “This is not an
issue of discrimination, but rather a language/cultural barrier which may
adversely effect the negotiations. It is analogous to the businessman who
travels to Japan without any knowledge of Japanese language, tradition, or
business culture. It is certainly a disadvantage.”

[27] R13:
“ It depends, who is who and what is the case about. Prejudice is almost always
present when you deal with parties from different socioeconomic strata.
Racism might be present within parties at the same level; and discrimination is
more common when you deal with employment issues.”

[28]
R32 added: “And that does not even start with other cultures, where there are
even more serious problems “, especially in the area of communication.”

[29]
R27: “I’ve seen discrimination occur by people of a variety of racial/national
backgrounds and usually against someone
from a different racial/national group rather than from a co-culture within
their own racial/national group. Black, Hispanic, Asian, White, Native
American, various European groups.”

[30] R22: “ I don’t
recall any instances of overt racism/discrimination/prejudice. As a
neutral, I have encountered situations where a party was reacting to what they
perceived as a lack of respect from the other party. I was able to get
the party back on focus by pointing out that what he/she perceived as
disrespect might be explained by a difference in culture and not an
intentional affront.”

R7: “In the one mentioned in # 2 both
parties were strong enough that discrimination was not involved in the final
decision. Rather, by questions and listening, I was able to help both strong
parties to learn to handle the other’s attempts based upon their cultural
differences
. I will add that I have been a third-party neutral in other
cases where Negro participants used the race issue against Hispanic or Anglo to
gain an advantage in the negotiation.”

[31]
See: responses to question 2 (notes 8-12) & question 4(notes 21-24).

[32] R2: “.… I
cannot point to any clear instance in my own practice. That is, I have
never seen an open and obvious act of discrimination, or even one that would
lead to strong suspicion.”

[33]
R5.

                        author

Josefina Rendon

A mediator since 1993, Judge Josefina Rendon has mediated over 1,500 disputes in a variety of areas including family, employment, personal injury and many other areas of law. For almost 4 years, she taught negotiation and mediated for the U.S. Air Force, Army, and Navy. She has been a Municipal Court Judge,… MORE >

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