Mayhew-Hite Report        Perspectives from Ohio’s DR Conference: Implicit Stereotypes and Implicit Attitudes: Strategies to Prevent Unconscious Threats to Neutrality and Equitable Outcomes

Mary Bockstahler*

This session identified implicit bias as a critical subject for mediators and other court employees, and challenged mediators and court employees to consider how implicit bias impact their daily work. The session was facilitated by Kelly Capatosto, Kyle Strickland, and Lena Tenney of the Kirwan Institute for the Study of Race & Ethnicity, and William Froehlich, the current Langdon Fellow in Dispute Resolution at the Ohio State University Moritz College of Law.

Kyle Strickland, Kelly Capatosto, and Lena Tenney, courtesy of the Kirwan Institute.

This session highlighted two core values of mediation: neutrality and impartiality, both of which are prescribed by the Uniform Mediation Act and the Model Standards of Conduct. The speakers differentiated between implicit bias, which stems from human cognition and how we unconsciously process race; and structural racism, which is the more overt form of racism and includes actions such as redlining. Mediators should strive to be conscious of their implicit biases, and should shift their focus from intentions to outcomes. Mediators often focus only on their intent to appear unbiased, and should rather shift their focus to how their actions translate in real life. Even the best-intended mediators can come off as biased.

The speakers stressed that implicit bias is ok – it is how we have been able to survive as humans. Biases are formed by the cumulative effect of experiences. The challenge for mediators, though, is to notice biased dynamics and interrupt that cycle of bias. The speakers discussed the study where partners at a law firm were given two identical memos from associates, both named Thomas Meyer, who had the exact same credentials. The only difference was that one of the memos came from Thomas Meyer, a white associate; and the other came from Thomas Meyer, an African-American associate. The study’s goal was to look at the partners’ perception of confidence in each of the “associates.” Ultimately, the study found that the partners had greater confidence in the white associate, even though all other factors were exactly the same, including the content of the memo. The partners gave more positive feedback to the white “Thomas,” and were more likely to find errors in the black “Thomas’s” memo. The speakers in this session noted this study showed that people tend to give someone the benefit of the doubt, based on race, even when they do not deserve it.

To combat bias, mediators should understand their own bias. It may sound like a daunting process, but mediators can take steps to learn what their biases are by taking Implicit Association Tests. There are tests for multiple different biases – including race, national origin, gender identity and sexual orientation. The tests help uncover biases that mediators may not realize they have.

The second step in combating bias is understanding that change requires work, which can start with mindful meditation. Mindful meditation helps mediators understand where their mind goes when it is allowed to wander, which helps mediators practice controlling their thoughts and biases.

The third step in combating bias is addressing intergroup bias. One way to do this is to make an effort to meet people who are different to help dispel biases mediators may have about a certain “out-group.” Merriam-Webster defines an out-group as “a group that is distinct from one’s own and so usually an object of hostility or dislike.  Conversely, an in-group is a group with which one feels a sense of solidarity or community of interests. Meeting people from outgroups helps dispel assumptions that members of outgroups are all the same. For example, a white mediator who does not understand outgroups may ask a non-white person to speak on behalf of their entire race or group they identify with. This should be avoided, as it tends to alienate parties and does not lead to successful mediations.

Another step in fighting bias is requiring diverse co-mediators. A recent study found that it is more important to parties to avoid having a mediator who does not look like them. People do not necessarily have an affirmative need to have a mediator of the same race, but do want to avoid having a mediator who is not their race. Adding a diverse co-mediator can help address this preference.

Finally, mediators should be attuned to others’ biases and know what to do when a party expresses a bias towards another party. Speakers from The Kirwan Institute urge mediators be “active bystanders” instead of being complicit to others’ biases in mediations. If a mediator fails to address a parties’ biased statement in mediation, the person who is affected by the bias will likely be turned off to the mediation, and to mediation all together. Mediators should also consider their tone and non-verbal cues when conducting mediations, and should be strategic about things like seating and how the parties are situated in a room.

In conclusion, the speakers stressed that mediators should continually commit to doing their best work, which should include addressing and mitigating bias. Mediators can learn more about implicit bias by visiting the Kirwan Institute website, and exploring its Implicit Bias Review.