Elayne Greenberg (St. John’s) has published Fitting the Forum to the Pernicious Fuss: A Dispute Systems Design to Address Implicit Bias and ‘Isms in the Workplace in the Cardozo Journal of Conflict Resolution. Abstract here.

Read on for two micro-analyses or “quick takes” on Elayne’s article, in which two professors choose a line from the article and briefly explain why they chose it. Note that these takes are not supposed to provide in-depth analysis of the entire article. Rather, they should (1) provide a quick look at scholarship trending in ADR; (2) inspire people to check out the article; and (3) encourage conversation and thought. If you the reader like this format, I am happy to coordinate micro-reviewers on a regular basis. Just let me know if you’d like to be a micro-reviewer or have your article micro-reviewed!

Quick Take #1: Erin Archerd, Detroit Mercy

“The goal of the proposed reconciliation-focused design is to promote greater awareness of implicit biases; incentivize acknowledgement, understanding, and change; foster compliance with the spirit, as well as the intent, of anti-discrimination laws, and create a societal shift of inclusion.” (101)

As someone who has spent the last few years thinking about the treatment of minorities and children with disabilities in our nation’s public schools, I found that this statement by Greenberg gave me a little thrill as I read it. Creating a “societal shift of inclusion” is exactly the structural change that needs to happen in order for organizations to be more open and accepting of people who are the “other,” whether that be on the basis of gender, race and ethnicity, orientation, disability, or any of the myriad “others” that we humans can think of with our brains wired to process people into categories. We need to take concerted efforts to make categories like “classmate” and “co-worker” more salient and to make people realize when they have put others into a mental box, are ascribing to that other person some negative set of characteristics, and are treating them accordingly.

I have used the Implicit Association Test (IAT) for the past few years when I taught Mediation, with mixed results. Every year, at least one or two students tell me they think it’s a gimmick and that they are somehow being tricked into “begin racist.” In the past, I have struggled to better explain the design of the test and to distinguish prejudice and stereotyping from racism, but Greenberg’s proposal leaves me wanting to reframe the IAT exercise and its results as a problem-solving exercise. These implicit biases are a problem. They may even mean that we will discriminate against people who we perceive to have these characteristics. We have to engage in awareness and consciousness building exercises like this, coupled with the affirmation that we do not want to let our unconscious biases control us and that we want to treat people neutrally and fairly. The IAT isn’t about resting on our laurels for getting the “right” answer, but for exposing us to and making us acknowledge beliefs that we want to change at a broader, societal level.

Promoting inclusion by doing the hard work of tackling ‘isms head-on seems to me both radical and elegant. I wonder how this might be used in schools to make faculty, staff, and students (let’s not forget students) more aware of the ways they are interacting with each other and whether using techniques like Greenberg is proposing might help improve discouraging trends – like the hugely disparate suspension and expulsion rates for black youths or their classification as having more stigmatized disabilities like emotional disturbance. We have the data to show that these problems are real. We have the laws in place saying that disproportionality in these areas in unacceptable. Yet the numbers don’t seem to improve. What we need is a way to encourage each of us to take a more active role in the societal shift of inclusion that will give hard-fought-for laws their intended effect.

Quick Take #2: Jen Reynolds, University of Oregon

“Yet, both the employee and employer may be right, and the failures of existing legal processes inflict a financial and psychological toll on both parties.” (77)

Here, Elayne is explaining that in workplace instances of implicit bias, an employee may experience disparate treatment on account of race, gender, or age, at the hands of an employer who honestly believes that she is not treating anyone disparately. A legal process (like ours) that does not recognize how both parties “may be right” in situations like this cannot, therefore, address many actual experiences of discrimination. But how can we hold people legally or morally accountable for what they do not intend?

I like this line because it captures what may be the central challenge in designing dispute resolution systems that take implicit bias into account (or, as Elayne’s article envisions, systems that explicitly focus on implicit bias). Most people do not welcome the news that they have implicit bias, especially if that news comes from someone claiming detrimental treatment as a result of that bias. Even a person who knows about implicit bias, who has taken the IAT and genuinely seeks to reduce implicit bias in her judgment and decision-making–even that person is likely to resist an other-initiated process that assumes or concludes that her implicit bias has had negative impacts on another. One wonders whether Person A’s implicit bias (like Person A’s intent) is even knowable to Person B with any degree of accuracy. And what of Person C, the mediator, who may observe certain behaviors of Person A that suggest implicit bias? Should Person C intervene, and if so, how?

One possible system would feature a dialogic process that validates both intent and impact while raising to the level of consciousness any implicit biases that may be affecting decisions and behaviors. Along these lines, Elayne’s ideas about creating more upstream education-focused efforts around implicit bias in the workplace seem right on track to me. Without this foundation and mutual commitment to eliminating workplace discrimination, it is hard to imagine employers engaging in genuine dialogue about how their implicit biases affect their employees. I also appreciate that she calls her system “transformative,” recognizing that her primary design goal in this particular dispute resolution system is not settling a narrow grievance but instead recalibrating ongoing human relationships.

Jennifer Reynolds is an Assistant Professor at the University of Oregon Law and the Faculty Director of the ADR Center. Teaching civil procedure, conflicts of law, negotiation, and mediation, her research interests include dispute systems design, problem-solving in multiparty scenarios, judicial attitudes toward ADR, and cultural influences and implications of alternative processes. She is also a contributor to ADR Prof Blog.