Bias is a reality – we all know it.
Some time ago I attended an evening program for ADR professionals. Our speaker was not a professional neutral, but she had made it a lifetime pursuit to study power, bias, and unequal bargaining strength. She lectures all over the world on these topics for the purpose of servicing the needs of the disadvantaged. She holds a Ph.d, and as the evening progressed it was abundantly clear she had spent a lot of hours reading about, thinking about, and analyzing power and bias in human relationships.
She said a lot of things that resonated. Her program was completely spellbinding. She spoke for only an hour, but of all the classroom instruction I’ve ever had this was clearly some of the most riveting.
What could she possibly say about bias that would be so riveting? Bias is a reality – we all know it. But many of us – perhaps most of us – actively work to minimize (or eliminate if possible) our own personal bias.
My mother, bless her soul, had many stellar qualities. But nobody would ever call her timid. She didn’t ride the tides – she made them. Whenever she put her mind to something, watch out! It was going to happen, and nobody (and nothing) would ever get in her way. (She told my wife, shortly after we were married, that my wife was the first person who had ever told her “No.” My mother was over 60 years old at the time). None of my sisters are shy or retiring – I know first hand that women are (or can be) as strong or stronger than any man. I like to think I am completely devoid, in my own life, of gender bias.
The same goes for racial, ethnic, religious, or cultural bias –my life experiences have taught me enough for me to believe I am as unbiased as it’s possible to be.
But this program addressed a different kind of bias. Our presenter observed that most mediators hold advanced degrees, and that they have more education than the average person. Our presenter noted (correctly) that oftentimes parties come into mediation from disparate backgrounds. One party may be better funded, with the ability to hire a more experienced or more effective lawyer. That party may also be more educated, more logical, and more analytical than less educated parties. As a result, a mediator may more readily identify with – and relate to – such a party. If this happens, the mediator may consciously (or subconsciously) defer to the position, requests or proposals of such a party, and thereby effectively afford this party greater “power” in the mediation. In the words of the presenter “If you aren’t aware of this kind of bias, you may (as a mediator) unconsciously advance the aims and interests of the party with the greater power.” She noted that less educated people often think about things differently than their more educated, financially successful counterparts.
The net result is that a mediator may subtly – and unconsciously – slant a mediation toward the more powerful party.
This was a complete revelation. It was instantly clear to me that she had identified a potential soft spot in the mediation process. It may be easy to watch and listen to other people for indicators of their bias – but it’s not so easy to do with our own. As mediators, we have to listen intently to words and subtle signals as to the values, desires, and preferences of parties and counsel. If a mediator is biased or predisposed towards a logical, analytical, clear-thinking party, then is that mediator likely to unconsciously advance the interests of that party during the mediation?
On the other hand, should a mediator properly attempt to effect social justice by favoring the interests of a disadvantaged party? Doing so would offend the concept of the mediator as a “neutral.” Life is unfair, and it is filled with inequality. Parties come into mediation with unequal bargaining power every day. If a mediator is to be truly “neutral,” then he or she must take the parties as they find them. The mediator’s task definitely does not include any attempt at “social reform” or favoritism within the context of the mediation.
Does this mean that a party who enters a mediation with more power may come out of the mediation with a more powerful result? Yes. But does that mean that a mediator should indulge a party in every attempt to control, derail or influence a mediation? Not at all. An aggressive litigator recently told me that the concept of “true” mediation was foreign to them since they always participate in mediation with absolutely no intention of settling their case, but instead always use mediation solely as a vehicle to gather information so that they can “win big” at trial. Mediators are charged with facilitating consensus between the parties. Every ethical tool, technique and approach can properly be used towards that end. But nothing obligates a mediator to facilitate a fishing expedition if one of the parties is not participating in good faith.
It’s an unending quest. An effective mediator will collect information about the parties and identify their wants and needs. And a good mediator will never consciously further any bias of the parties. But every mediator also needs to constantly work at identifying – and managing – their own biases so that they don’t interfere with the mediation process.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].