How Informality, Confidentiality, and Neutrality Perpetuate Prejudice at the Mediation Table

Prejudice at the mediation table is a real problem. Professors and students at the University of New Mexico Schools of Law and Sociology undertook a study exploring the “effects of race and gender on mediation and adjudication of cases in Albuquerque’s small claims court.” The results they gathered were disturbing. In both mediated and litigated cases, ethnic minority parties ended up with less favorable results than their white counterparts. On average, a minority plaintiff was likely to receive eighteen cents on the dollar less than a white plaintiff did in mediation. Conversely, a minority defendant was expected to pay twenty cents on the dollar more than a white defendant; perhaps most disturbing of all was that “these disparate results were more extreme in mediation than in adjudicated cases.” Moreover, when “there were two mediators of color, the negative impact of the disputant’s ethnicity disappeared.”

A less scientific study was employed by Josefina M. Rendόn, a former Texas judge and current mediator. Judge Rendόn formulated several questions which she e-mailed to several mediator and attorney groups. Although she only received forty-five responses, rendering the survey statistically insignificant, it nonetheless shed some light on the “perception of practitioners in the field.” For example, forty-two of the respondents answered affirmatively to the question “do you believe that a person’s race or nationality can affect the outcome or settlement negotiations?” A majority also believed that a person’s race or nationality hurt the outcome of the mediated agreement. While it is not clear that prejudice is the sole explanation for this disparity, it is apparent that it does play some role in mediation. The empirical data convincingly points this out. The anecdotal data gathered by Judge Rendόn also indicates that practitioners are aware of the problem of prejudice and its adverse impact on the process. In order to adequately address the problem, it is important to examine the possible sources creating the prejudice.

Prejudice is evident in every facet of social interaction. However, prejudice is more likely to affect the outcome of a dispute in mediation more than in litigation. Several theories have been proposed, but the three most important ones concern:

(1) the informality of mediation
(2) the confidentiality entailed in the process
(3) the neutrality of the mediator

Informality
By definition, mediation is “an informal and confidential way for people to resolve disputes with the help of a neutral mediator who is trained to help people discuss their differences.” The informal nature of mediation might be the cause of prejudice.
Early critics of modern ADR such as Professor Richard Delgado warned of the “possibility that [ADR] may foster ethnic prejudice,” that “people who hold prejudices are more prone to act on those attitudes in informal, rather than formal, settings” and that the in the “rush to deformalize, the concern that deformalization may increase the risk of class-based prejudice” has been overlooked. Conversely, it has been argued that the extremely formal rules of the court adjudication serve to curb prejudice. Since judges tend to have repetitive caseloads, they are more likely to “perceive a case not in terms of the parties in dispute, but of the legal and factual issues.” Several other formalities exist to keep a judge from exhibiting prejudice such as the Code of Judicial Conduct which requires judges to disqualify themselves from cases where their impartiality is questioned, and the requirement of the judge to provide a written opinion in many cases. Furthermore, the rules of jury selection, the Rules of Civil Procedure, the rules of discovery, and the rules of evidence all act as safeguards to prevent prejudice. Without these safeguards in mediation, it is argued, parties are more likely to exhibit prejudice.

Another argument focuses on the type of atmosphere created by this informal setting. “Much prejudice is environmental- people express it because the setting encourages or tolerates it. In some settings people feel free to vent hostile or denigrating attitudes towards members of minority groups’ in others they do not.” Knowing that they do not have to follow formalities or face public scrutiny from a judge or jury, parties in a mediation are more likely to allow their latent prejudices to seep through into the forum.

Confidentiality
Confidentiality is also an inherent part of mediation. Proponents of strict confidentiality in mediation argue that it is necessary to ensure that parties are frank and sincere throughout the process. This veil of confidentiality will enable the mediator to create compromises based on facts and interests that the parties would otherwise not reveal. Ultimately, parties choose mediation as a form of dispute resolution because they do not want to “air [their] dirty laundry in the neighborhood.”

Many states as well as the federal government have also passed statutes solidifying this privilege in legislation. These statutes subject mediations to a very strict level of confidentiality, with very few exceptions. Judicial interpretation of the statutes has been stringent, going so far as to protect malfeasance during the mediation. For example, in the very recent case of Cassel v. Superior Court, the California Supreme Court unanimously decided that the California mediation statutes mean what they say, no matter how unjust the outcome may be. In the particular case, attorneys participating in mediation allegedly coerced and harassed their client to accept a settlement. The client sued for malpractice and breach of fiduciary duty. However, the evidence of the attorneys’ conduct in the mediation was held inadmissible by the California Supreme Court. The opinion stated that “[a]ttorneys participating in mediation will not be held accountable for any incompetent or fraudulent actions during that mediation unless the actions are so extreme as to engender a criminal prosecution against the attorney.” The court issued this ruling in the face of policy concerns that it will induce unethical behavior. The same reasoning can be extrapolated to not only protect attorneys, but all others participating in the mediation.

Criticism of strong mediation privileges has existed for many years before Cassel. Opponents of weak privileges argue that in some situations, the need for information outweighs the need to encourage settlement. These arguments are also based on a lack of data demonstrating “a difference in growth rates or overall use of mediation services between jurisdictions with privileges and those without such protection, or from within any jurisdiction before and after the creation of a privilege.”

Neutrality
Black’s Law Dictionary defines mediation as “a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.” The neutrality of the mediator is one of the most important aspects of mediation. However, the concept of true neutrality has frequently been questioned. Some view neutrality as “a statement of intention, not of behavior” because “[w]e bring with us a set of beliefs, values, and interests to every conflict we enter, not matter how firmly we are committed to neutrality.”

How is a mediator to know whether they are neutral as to the dispute before them? Although some local rules require a mediator to recuse him or herself if they cannot be impartial, it may be impossible for a mediator to actually gauge whether they are biased. Even if a mediator recognizes that he or she might be bias and attempts to compensate for it, a Stanford University study 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.” How is a mediator to address a subconscious force? Additionally, mediator ignorance of cultural norms and practices could compromise the mediator’s neutrality and lead to unintentional prejudice.

Sina Bahadoran, a partner at the law firm Hinshaw and Culbertson, argues that there are certain cultural situations where “a mediator, as currently trained, would be unprepared to adequately handle.” Although Bahadoran’s article focuses primarily on divorce mediation, the same analogies can be drawn to any mediation where a non-Western culture is represented. Bahadoran argues that “[a] non-American spouse entering divorce mediation will face a great many cultural myths and stereotypes … . The cultural myths that surround people of various ethnicity and nationality vary greatly, but all are unified by a common theme: cultural inferiority.” Unless a mediator has first-hand knowledge and experience with a different culture, his or her view will necessarily be tainted by prejudice. If a mediator does not know the linguistic differences between two cultures, how can he or she know the more subtle nuances of the culture?

Due to the informality of mediation, the confidentiality entailed in the process, and the neutrality of the mediator, prejudice is likely to affect the outcome of a dispute particularly when parties are at the mediation table.

by Ali Arif
Michelle Herman, New Mexico Research Examines Impact of Gender and Ethnicity in Mediation, 1 DISP. RESOL. MAG. 10-11 (Fall 1994) IN DWIGHT GOLANN & JAY FOLBERG, MEDIATION, THE ROLES OF ADVOCATE AND NEUTRAL 311 (2006). Although this study focused on both gender and ethnicity, this article will focus mainly on race and ethnicity.
Josefina M. Rendόn, Under the Justice Radar?: Prejudice in Mediation and Settlement Negotiations, 20 T. MARSHALL L. RE . 347, 361 (2005).
It is important to note the diversity of the group that responded. Twenty respondents were Anglo or European American, sixteen were Hispanic, five were African American, two were Asian American, and two mentioned their European and Native-American heritage. Id. at 363.
Id. at 365. Twenty-five respondents chose to answer this question, and fifteen of them believed that it hurt the outcome.
Mediation, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/employees/mediation.cfm.
Richard Delgado et. al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359 (1985).
Id. at 1368-75.
Id. at 1369.
Id. at 1370-75.
Id. at 1387.
EEOC, supra note 9.
See Lawrence R. Freedman & Michael L. Prigoff, Confidentiality in Mediation: The Need for Protection, 2 OHIO ST. J. DISP. RESOL. 37-38 (1986) IN DWIGHT GOLANN & JAY FOLBERG, MEDIATION, THE ROLES OF ADVOCATE AND NEUTRAL 345 (2006).
See e.g. TEX. CIV. PRAC. REM. CODE ANN. § 154.053(c) (Vernon Supp. 2005); CAL. EVID. CODE §§ 1115-1128 (2009); 28 U.S.C. § 652 (2005)(d).
See Cassel v. Superior Court, 51 Cal.4th 113 (2011). In this case the court set out to interpret § 1119(a) of the California Evidence Code which stated that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” West’s Ann.Cal.Evid.Code § 1119(a).
Id. at 138.
Scott H. Hughes, A Closer Look: The Case for a Mediation Confidentiality Privilege Still Hast Not Been Made, 5 Disp. Resol. Mag. 14-15 (Winter 1998) IN DWIGHT GOLANN & JAY FOLBERG, MEDIATION, THE ROLES OF ADVOCATE AND NEUTRAL 346 (2006).
Rendόn, supra note 5, at 353. “Party self-determination and mediator neutrality have been dubbed ‘the two towers’ or ‘sacred cows’ of mediation.” Id. at 353-54.
Id. at 354.
See Los Angeles Superior Court ADR Neutral Recusal & Disqualification Guidelines, http://www.lasuperiorcourt.org/ADR/forms/ADRNeutralGUIDELINES.pdf.
Elizabeth A. Moreno, The Mediators Role: Tackling Their Illusion of Objectivity (2004), http://www.mediate.com/articles/morenoe1.cfm.
See Sina Bahadoran, A Red Flag: Mediator Cultural Bias in Divorce Mediation, 18 MASS. FAM. L.J. 69 (2000) IN DWIGHT GOLANN & JAY FOLBERG, MEDIATION, THE ROLES OF ADVOCATE AND NEUTRAL 313 (2006).

Ali Arif is earning his Juris Doctorate at Pepperdine University with a Straus Certificate in Dispute Resolution. He earned his BA in Political Science from Berkeley with a minor in Peace & Conflict Studies. Ali wants to pursue a career involving international law, and light of his interest in travel and international politics, he recently moved to London to further his legal studies. His work experience ranges from clerking at a bankruptcy court and at a commercial division in the High Court of Uganda to working at law firms doing immigration cases and asylum petitions. Ali is conversational in Arabic and enjoys hiking and NFL football.