An article last month in the New York Times got me thinking that perhaps in my mediations, I should warn people that their memories and perceptions may be unreliable, especially where the situation involves parties of different ethnicities.

In To Curb Bad Verdicts, Court Adds Lesson on Racial Bias for Juries, Ashley Southall (December 15, 2017) notes that the New York Court of Appeal has told “…judges in criminal cases where the identifying witness and defendant appear to be of different races, the defense is entitled to have the jurors told about the unreliability of cross-witness identification if requested.” (Id.)

Why? Because studies over the last century have shown that “…[p]eople generally have greater difficulty identifying someone of a different race than their own…”. (Id.) One mega study of 39 other studies showed that “…participants were one-and-a half times more likely to falsely identify the face of a stranger of a different race.” (Id.) At the same time, only about one-third of jurors polled realized that this might be a problem. (Id.)

Thus far only a few courts have adopted a rule on this issue including state courts in Hawaii, Massachusetts and New Jersey, “… while courts in Washington State and Georgia, as well as federal courts in Detroit, Indianapolis and the District of Columbia allow the instruction, at the discretion of the trial judge.” (Id.)

Which brings me back to mediation or any type of alternative dispute resolution (ADR) for that matter (especially arbitration!). Parties engage in ADR to resolve a dispute. And, in doing so, the facts seem to be paramount. But, due to faulty perception or as noted here, an inability to identify a stranger of a different race, (or perhaps of a different ethnicity) a party may innocently enough misstate facts about who did what to whom when. They may accuse the wrong person of employment discrimination, sexual harassment, or any other action because “they all look alike”.  If such occurs, the other party will no doubt deny the allegations which, in turn, will most probably lead to no settlement but further litigation.

So—as a mediator or as a neutral, (as an arbitrator) do we need to caution people that this bias exists and that parties should be extra careful before pointing the finger at another party claiming the latter to be the culprit?  Do we need to caution parties to be careful because to many Caucasians, all people from different parts of Asia look alike even though a native Asian can easily identify someone from her own country or another country?

In short, this is simply another one of those implicit biases that we all have and do not even realize. Because of this, we can do a lot of damage to another person without even realizing it.

….Just something to think about.

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By Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com