Recently, we heard 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 scientist at the National Institute of Health, 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 talent less son as the starting pitcher, we think that if we can step back and be objective and that this will insure impartiality. Psychologists who study the effect of bias on decision-making indicated that we are always wrong if we think that we can be impartial and exhibit no bias.
Recent studies of employment discrimination jury verdicts in California, substantiated the bias of humans. How can mediators tackle their illusion of objectivity and keep 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 unbiased or vice versa, 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 have to recognize that they have biases. We all have biases. We have all had negative experiences that have colored that experience by an explanation that it was caused by something else, e.g., that I lost my job because I had a male supervisor who did not like me. From then on the memory of the disaster is colored by the experience, the perception and the bias against male supervisors. Mediators may argue that because they we are not the ultimate decision makers in a mediation, they do not need to be aware or even recognize their biases. However, in not recognizing their own biases and acknowledging that they are susceptible to biases, they are creating barriers to resolving conflict. They strive to remove barriers in a mediation process, but if they are not cognizant that they have biases and may be creating a barrier, the mediator will never become a true neutral. If someone remarks during mediation that the mediator’s opinion is biased, the mediator should stop and think, remember studies show that we can be bias when assessing others or vice versa but there is no way to predict when we will be bias or unbias.
Many mediators move from being facilitative to evaluative in the mediation process. In being an evaluative mediator, they are sometimes asked to evaluate 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 and ultimately create a barrier to settlement in the mediation process. The mediator loses the attributional charity, assuming that one side is just as honest as the other side. The mediator places a barrier to resolving the conflict by losing the search for the common ground.
In order to remain neutral during mediation, the mediator should not be bated by the parties into rendering a jury verdict or think that he or she will offer a uniquely objective perspective on the truth. Such an opinion would likely be dismissed by both parties for being biased. There are many tools that can achieve an evaluation of the case and bring the parties to a common ground and closer to settlement, instead of being the jury and rendering the verdict. The open-ended question, with follow up questions, is the best tool which will guide the parties in evaluating their own case and at the same time raise issues that they may not have thought about and lead to the creation of common ground. For example in a discrimination action, the mediator may entertain the question to the parties, as to how a jury sitting in a specific judicial district would view the parties based on his or her sex, sexual orientation or race. Or ask the party, in coming to a settlement demand or offer, by what percentage was it increased or lowered based upon the judicial district that the case is pending? Pointing out weaknesses of a party’s case will also force the parties to evaluate the case, but do it in a non confrontational manner. Again, ask the open-ended question in order to avoid any of the mediator’s unconscious biases from being revealed. Parties would prefer to have these type of discussions at a mediation rather than during trial. If it gets to the point that the parties are demanding a mediator’s proposal and if it the last alternative, the mediator should keep in mind that he or she is judging himself or herself as to how well the mediator can predict the settlement value (remember studies show that people are fairly objective when judging himself or herself). Most mediators have become less biased with these assessments, by being familiar with jury verdicts, keeping track of other settlements they have achieved with cases that have similar factual situations.
One Mediator is Better than 12 Unknown Biases
Given that we have unconscious biases and are susceptible to biases, would it not be better to take it to trial and even the playing field by having 12 persons render a verdict, instead of using a single mediator? Studies have shown that juries do not render unbiased decisions. 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, not the ultimate decision maker, to resolve the action.
The biases of jurors have come to light in employment discrimination cases involving women and minorities. David Benjamin Oppenheimer, who is a professor of law at Golden Gate University School of Law, found that the deck is stacked against minorities and women in employment discrimination cases. Oppenheimer came to the conclusion that California juries exhibit biases against minority women and that their biases are even greater than plaintiffs’ lawyers anticipate. His conclusion was based upon a study he conducted covering two 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. Oppenheimer broke out the cases 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.
Oppenheimer entertained many reasons for this anomaly and dismissed each of them. He looked at whether employers may have a certain advantage in discrimination claims because they are ‘repeat players’, however found in other areas of employment litigation where employers are ‘repeat players’ plaintiffs have ‘normal’ or even ‘high’ success rates. He also entertained the notion that employers are more likely to win because they perceive themselves as having more at stake, however other discrimination plaintiffs and other employment-law plaintiffs had significantly higher success rates. Finally, he dismissed the notion that the findings were a product of random chances. He referred to other studies throughout the United States showing low women and minority plaintiff success rates in discrimination litigation. He pointed to the fact that ample evidence exists of discriminatory attitudes in other areas of society toward minorities that further bolster his conclusion.
This alarming study should prompt the parties to seek the services of a mediator to resolve their action. First, a mediator brings the parties together in an attempt to resolve the action. The mediator is not a fact finder or a decision maker. The parties make the decision to resolve the conflict. The mediator is the catalyst to achieve a resolution. 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 the party has to 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. When it comes to mediation, the biases that are on the table should be those of the parties, who will ultimately have to evaluate their own biases which should lead to a settlement. The biases of the mediator should not come into play during mediation and do not come into play when the ultimate decision to settle is reached.
So the questions remain, are Supreme Court Justice Antonin Scalia, the top scientist at the National Institute 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 unbiased? Studies reinforce that all of these individuals are biased. Tauzin has recognized his bias by resigning as committee chairman. 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 researches have indicated, a successful career built on making carefully reasoned decisions may only reinforce the illusion of objectivity. Scalia and NIH Scientists are a perfect example of the illusion of objectivity.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”...By Chris Kane