Essay On Implicit Bias In Mediation

Considering the fact that the average rate of a legal counsel is $350 per hour, very few clients can afford an extensive litigation despite their notions of righteousness and a desire for a justice to triumph. Mediating civil and family disputes offers a great alternative to the litigation and relieves the pressure off the Canadian justice system that is already over-burdened and backlogged. Whether parties enter mediation as a mandatory court ordered process as in civil cases, or whether parties enter mediation freely as in family law cases, the expectations of parties remain the same. Parties expect mediators to be neutral, impartial and objective when conducting mediation sessions, however, and to the dismay of many, even mediators are vulnerable and susceptible to implicit cognitive biases that guide their thinking processes and behaviour.
In this paper, I will attempt to examine the neutrality, impartiality, and objectivity of the mediator. I reason that it is quasi impossible for a mediator to maintain neutrality, impartiality, and objectivity considering the social science evidence on implicit biases that affect every human being across the cultural spectrum. I will rely on my knowledge of social sciences, on Psychology in particular, to draw inferences between inherent implicit biases and how they affect our decision making.

Neutrality, Impartiality, Objectivity
Every mediator should adhere to the most fundamental and core principles that mediation is built upon – neutrality, impartiality, objectivity, which is a standard of practice in professional mediation services. While the definitions of these important qualities may slightly differ, we can arrive at some form of consensus that the neutrality means “refusal to ally with, support, or favour any side in a dispute and ability to be objective”; impartiality means “freedom from favouritism and bias”; and objectivity means “an unbiased attitude or opinion that is based on factual evidence.”
However, scientific evidence in Social Psychology suggests that it is almost impossible to remain neutral, impartial and objective as humans are vulnerable to implicit biases (i.e., social cognitions) that they are not aware of and which are activated involuntarily as opposed to explicit cognitive biases that humans can control.

Implicit biases are deeply held attitudes and stereotypes that we have formed as a result of our day to day experiences. These implicit biases affect our thoughts, decision making and behaviour, and ultimately lead us to act in a specific manner despite the fact that we may aspire to the ultimate

ideals.
It was evident from the class exercise held on October 21, 2016 that several students in the class had a difficult time to remain impartial, neutral, and objective as mediators. I observed the tendency for people/mediators to engage in non-impartial behaviour if they perceived that one party was more just in their position than the other. Moreover, I also noticed that the chronological history of the case played a major role in mediator`s behaviour. Implicit biases that the mediator held influenced the process of mediation and the result of the mediation, even as in so far as to suggest to the parties what would be a desirable settlement, despite the fact that it could be achieved at the expense of the other party. This in turn “robbed” one party of the control over the process, and creative settlement ideas possible, but benefitted the other party to the extent of abuse of the situation. It presents a problem because such biased action resulted in the broken trust between the disadvantaged party and the mediator but trust, credibility and respect are the core competencies on which a client relies when he/she attend the mandatory mediation sessions or choses to attend the mediation voluntarily. This example prompted me to think about my own implicit biases through the use of introspection, a term that was coined by the great Psychotherapist Sigmund Freud, and made me question what kind of legal counsel and ADR professional will I become if I, like many of us, are vulnerable to implicit biases.
Unfortunately, chronological history of the case seems not to be the only factor that could trigger implicit biases. Personal characteristics, values, cultural and ethnic background of the parties, previous life experiences that trigger our implicit schemas, verbal and non-verbal behaviour of parties and/or counsel during the mediation and other factors are just a few factors that could sabotage mediator`s neutrality, impartiality, and objectivity. There are also situations where there is an enormous power imbalance between the parties (e.g., such as, domestic violence cases) or counsels (e.g., such as, one counsel is more experienced and knowledgeable than the other) or where one party has a counsel but the other is self-represented due to the lack of financial resources. In these situations, mediator, may feel ethically obliged to intervene while exercising caution, as discussed by Mrs. Heidi Ruppert on October 14, 2016 in our in-class lecture.
A high degree of awareness, introspection, self-control, and constant cognitive and behavioural reality checks are needed to combat deeply held biases that reside in all of us, however, it presents a great challenge as mediator`s responsibility is not only directed towards himself/herself but also towards the clients and a legal counsel, if present. This suggests that the control of implicit biases is a difficult task and it may take a long time to master a complete control.
For me, as a future legal counsel and ADR professional, the assigned readings, class presentations and exercises solidified my thoughts on the importance of being aware of my own biases, whether explicit or implicit, to engage in introspection and from time to time perform internal inventory to become more neutral, impartial, and objective. It is my duty to myself, to my legal community and to my clients to act in a manner that is consistent with the rules and standards of professional conduct and ethics.