Creating Solutions to Address Mediator and Party Prejudice in Mediation

It is clear that the problem of mediator prejudice stems from both structural issues of the mediation process as well as psychological and idiosyncratic tendencies of the mediator. Solutions to these two prongs will be addressed in turn.

A. Structure of the Mediation Process
Instilling more formal rules in the process of mediation is the first step. Certain rules should be developed that determine “the scope of the proceedings and forbid irrelevant or intrusive inquiries, by requiring open proceedings, and by providing for some form of higher review.” A more formal structure will dissuade parties from exhibiting their prejudiced attitude because “a prejudiced person is more likely to act in prejudiced fashion when on familiar ground or with friends than when participating in a public function.” Making mediation appear as a more public function will inherently cause parties to be less likely to air their prejudices. However, there must be balance in formalizing mediation. The biggest advantages to the process are that it is faster, simpler, cheaper, and more flexible than adjudication. Formalizing mediation will unavoidably increase time and cost. However, the “ideal of equality before the law is too insistent a value to be compromised in the name of more mundane advantages.” The complexity and formality of the rules in the court system are designed to level the playing field. It appears that a similar inequality is present in mediation so more rules should be developed to level the playing field in that forum as well.

The strict rules surrounding confidentiality should be lessened in certain areas. Currently, almost nothing can be revealed from the course of the mediation. For example, in California, there are only four statutory exceptions to confidentiality. These rules, originally designed to protect the process have created inequitable results. It is up to state legislatures to craft more exceptions to the rule as they see appropriate because courts have been unwilling to do so. Exceptions to these strict rules of confidentiality will make it more likely that inequitable settlements that are a product of prejudice or malfeasance will be set aside in the interest of justice. Prejudiced behavior by the mediator is not likely to result in criminal prosecution and would therefore be confidential and inadmissible, even to show that a mediator was biased or acted inappropriately.

B. Steps for the Mediator
Several suggestions have been made as to what the mediator should do when faced with prejudice in a mediation session. Many practitioners indicate the need for the mediator to take preventative measures by being informed about the racial and cultural issues pertinent to the dispute. Rendόn suggested that the “mediator match the parties in race, nationality or any other distinguishing, relevant factor. Also, based on the New Mexico study conducted by Rendόn, the use of a co-mediator can help to minimize prejudice when the parties are of two different cultural backgrounds. Therefore, if a mediator feels like he or she is more likely to be biased towards one of the parties, he or she can invite a co-mediator to the session to balance that bias. It is also suggested that if issues of prejudice and race are apparent at the mediation, the mediator should take the initiative and present it to the parties for discussion. The mediator should then leave it up to the parties to decide whether they should continue with the process.

A more controversial suggestion is for the mediator to take an even more active approach. If he or she recognizes inequality between the parties then the mediator should do his or her best to balance the power and put the parties on equal footing. Critics of this approach argue that it compromises the mediator’s neutrality. They argue that the mediator should basically take the parties as he or she finds them and to “maximally assist each participant at all points in time.” However, without formal rules, a mediator concerned with a just outcome will have no choice but to abandon the proceedings because they will have no way to address the inequality. Therefore this approach can ethically be used as a substitute for the formal court rules designed to minimize power inequalities and prejudices. Also, it may be possible that airing prejudice could be a good thing if the mediator is prepared to help that party overcome the prejudice. Depending on the style of the mediator and the sake of a better agreement, perhaps sometimes airing the prejudice is actually a beneficial thing and will help create a better lasting settlement. This might also relate to the balancing of the degree of formality of the mediation process. Perhaps if a mediator is allowed to tackle of prejudice head on, less formality will be required because there is a viable method for the mediator to ameliorate the situation.

Conclusion
Perhaps if some of these changes are to be made, mediations involving bias and prejudice will have a different outcome. Instead of coming to impasse and deciding to go to court, maybe cases can settle if the mediator understands the cultural underpinnings of the dispute. Perhaps if the process was more formal and less confidential, parties would not make disparaging remarks about someone else at the table.

Mediation has become the leading form of alternative dispute resolution. The benefits of mediation to society—as an alternative to litigation—are immeasurable. However, we should not hastily praise mediation without recognizing its shortcomings. Without more rules to formalize the process, it runs the risk of becoming a bastion for intolerant and prejudicial elements of society to take refuge so that they can avoid publicly airing their prejudices. State legislatures should not assist them by creating rigid rules of confidentiality. Finally, mediators need to acknowledge their own prejudice as well as know what to do when confronted with prejudice by the parties in the session. This will ensure fairness and justice in the process for all parties involved.

by Ali Arif
Richard Delgado et. al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 WIS. L. REV. 1359, 1403 (1985). These proposed solutions are broad. More specific solutions are beyond the scope of this article.
Id. at 1404.
See Cal. Evid. Code § 1120. The only exceptions to confidentiality are (1) evidence otherwise admissible or subject to discovery outside of a mediation, (2) the admissibility of an agreement to mediate a dispute, (3) the effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action, and (4) disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute. Id. There is also an exception for conduct resulting in criminal prosecution. Id.
See Rojas v. Superior Court, 33 Cal. 4th 407 (2004). Tenants of a large condominium complex sued the owners and builders of the complex for allegedly covering up defects. See id. After the building had been demolished, the tenants wanted the builders to produce pictures of the complex which the builders had taken in preparation for mediation. Id. Although there was no other way for the tenants to get those pictures, the court held that “the nondiscoverability of writings prepared for mediation, unlike the shield otherwise provided for certain attorney work product, is not subject to a ‘good cause’ exception, based on ‘prejudice or ‘injustice’ to the party seeking discovery.” See id.
See Cassel v. Superior Court, 51 Cal.4th 113 (2011).
Josefina M. Rendόn, Under the Justice Radar?: Prejudice in Mediation and Settlement Negotiations, 20 T. MARSHALL L. RE . 347, 370-71 (2005).
Id. See 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). “When examining how the ethnicity of the co-mediators affected outcomes, the study found that when there were two mediators of color, the negative impact of the disputant’s ethnicity disappeared.” Id. It is also important to note that “[t]he ethnicity of the mediator did not change the objective outcomes of white disputants’ cases.” Id.
Id. Rendόn, supra note 7, at 372-73.
See James Melamed, Maximizing Mediation (1999), http://mediate.com/articles/melamed4.cfm. Id.

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.