The Mediators' Role: Tackling the Illusion of Objectivity

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 biased or unbiased, 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 must recognize that they have inherent biases. We all do. We have all had negative experiences that have colored subsequent impressions. Consider a woman who loses her job, blaming her male supervisor. From then on, the memory of the disaster is colored by the experience, and the bias against male supervisors remains.

Mediators may argue that because they are not the ultimate decision makers in a mediation, they do not need to be aware or even recognize their biases. However, by not recognizing their own biases and acknowledging their susceptibility to biases, they create barriers to resolving conflict. Mediators strive to remove barriers in the mediation process, but if they are not cognizant that they have biases, the mediator will never become a true neutral. If a party to the mediation accuses mediator of being biased, the mediator should stop and think. Remember, studies show that we can be biased when assessing others or vice versa, but there is no way to predict when this might occur.

Many mediators move from being facilitative to evaluative in the mediation process. The evaluative mode involves evaluating 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. The mediator loses the attributional charity, assuming that one side is just as honest as the other side. This results in the mediator placing a barrier to resolving the conflict by losing the sight of the goal: finding common ground.

To remain neutral during mediation, the mediator should not be baited by the parties into rendering a jury verdict, believing he or she will offer a uniquely objective perspective on the truth. Instead of playing the jury and rendering the verdict, the mediator needs to ask open-ended questions, with follow-up questions. This helps guide the parties in evaluating their own case and at the same time raises issues that may not have been considered.

For example, in a discrimination action, the mediator may entertain the question to the parties about how a jury sitting in a specific judicial district would view the parties based on his or her sex, sexual orientation, or race. Or the mediator might ask the parties to consider, in coming to a settlement demand or offer, what percentage was it increased or lowered based on the judicial district where the case was pending. Pointing out weaknesses of a party's case, if done in a nonconfrontational manner, will also force the parties to more objectively evaluate the case.

One Mediator Is Better than 12 Unknown Biases

Given that each individual has unconscious biases and is susceptible to others' biases, is it better to even the playing field with a 12-person jury than a single mediator? Probably not. Studies have shown that juries do not render unbiased decisions. For example, David Benjamin Oppenheimer, a professor of law at Golden Gate University School of Law, came to the conclusion that California jury biases against minority women involved in employment discrimination claims are even greater than plaintiffs' lawyers anticipate. His conclusion was based on a study he conducted covering 2 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.

Dr. Oppenheimer broke the cases down 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.

This study and others like it show the value of a mediator. 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—who is not the ultimate decision maker—to resolve the action.

A mediator brings the parties together in an attempt to resolve the action, not to serve as a fact finder. 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 also 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 for even the most experienced trial attorney. When it comes to mediation, the biases that are on the table should be those of the parties. The biases of the mediator should not come into play.

Conclusion

So the questions remain: are Supreme Court Justice Antonin Scalia, the top scientists at the National Institutes 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 considered unbiased? Studies reinforce that all of these individuals are indeed biased.

Rep. Tauzin has recognized his bias by resigning as committee chairman. Justice 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 research studies have shown, a successful career built on making carefully reasoned decisions may only reinforce the illusion of objectivity. The decisions made by Justice Scalia and NIH scientists are a perfect example of the illusion of objectivity.