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MEDIATORS ARE NEUTRALS, RIGHT?

SO, WHY DO WE NEED TO TALK ABOUT BIAS IN MEDIATION?

ADR RULE 2.1: PURPOSE

... The role of the mediator is to assist in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement as well as legitimate points of disagreement. Any agreement reached by the parties is to be based on the autonomous decisions of the parties and not the decisions of the mediator. ...

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DEFINITIONSBIASPrejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair.

A preference or an inclination, especially one that inhibits impartial judgment.

An unfair act or policy stemming from prejudice.

STEREOTYPE

A widely held but fixed and oversimplified image or idea of a particular type of person or thing

RaceGenderReligionNational originDisabilitySexual orientationAgeSocioeconomic status

or similar factor

COMMON BIASES THAT WE (AS LAWYERS) SHOULD BE AWARE OF...

PROF. COND. RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:...(g) engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge's finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.

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IN RE THOMPSEN, 837 N.E.2D 1011 (2005)

In the first case handed down pursuant to RPC 8.4(g), the Supreme Court found attorney Dorothy Thompsen violated the rule for having referred to the African-American associate of the wife in a dissolution case as “the black guy” and “the black man” where race was not relevant to the matters before the court.

In discussion of the issue, the Supreme Court said, “Interjecting race into the proceedings where it is not relevant is offensive, unprofessional and tarnishes the image of the profession as a whole.” The court continued, Thompsen’s “misconduct is a significant violation and cannot be taken lightly. Respondent’s comments only serve to foster wounds caused by past discrimination and encourage future intolerance.” Ms. Thompsen received a public reprimand. The language quoted above is quoted in later cases finding a violation of RPC 8.4(g).

IN RE CAMPITI, 937 N.E.2D 340 (2009).

Mr. Campiti was sanctioned by the Supreme Court with a public reprimand for making disparaging references to the opposing party for not being a U.S. citizen and receiving pro bono legal services. This behavior was found to be a RPC 8.4(g) violation as Mr. Campiti“engaged in conduct, in a professional capacity, manifesting bias or prejudice upon national origin and/or socioeconomic status and the conduct was not legitimate advocacy.” Mr. Campiti received a public reprimand.

IN RE MCCARTHY, 938 N.E.2D 698 (2010)

Mr. McCarthy’s use of the word “n****r,” a derogatory racist insult, in work-related email correspondence was found to manifest racial bias and was not used as “simply a historical reference to slavery” when Mr. McCarty was acting as an attorney and use of the term was not connected to legitimate advocacy. Mr. McCarthy was found to have violated RPC 8.4(g) and received a 30 day suspension from the practice of law without automatic reinstatement.

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IN RE DEMPSEY, 986 N.E.2D 816 (2013)

Attorney Gordon Dempsey was involved in lengthy litigation over his default on a land contract. Mr. Dempsey handed out flyers in which he called the sellers in the land contract “slumlords” and their attorneys and law firm “ ‘bloodsucking shylocks’ who were part of a ‘heavily jeweish (sic) reorganization cartel.” Mr. Dempsey continued on his anti-Semitic bent during the disciplinary proceeding. He was found to have violated RPC 8.4(g) and was suspended from the practice of law for three years without automatic reinstatement.

IN RE KELLEY, 925 N.E.2D 1279 (2010)

Attorney Stacy Kelley called a toll-free number on behalf of her husband, who had been receiving recorded messages from a company requesting him to call back. When she called the toll-free number, she identified her husband as her client. In the course of conversation with the male representative, Ms. Kelley asked him if he was “gay” or “sweet” because she perceived that he had a feminine sounding voice. The Supreme Court found her behavior to be a violation of RPC Rule 8.4(g) as attorneys are prohibited from engaging in conduct in a professional capacity, manifesting bias or prejudice based upon sexual orientation and the attorney’s “conduct was not legitimate advocacy.” Ms. Kelley was sanctioned with a public reprimand.

IN RE BAKER, 993 N.E.2D 1138 (2013)

Joseph Baker, representing the father in a dissolution action, writes the opposing counsel and copies the judge as follows: “Father told me this week that he has only seen his baby … one day all year. Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with.” The Supreme Court unanimously finds Mr. Baker has violated RPC 8.4(g) and suspends him from the practice of law for 30 days with automatic reinstatement providing he did not have any other suspensions then in effect.

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IN RE USHER, 987 N.E.2D 1080 (2014)

In re Usher must be read to be believed. In a decision finding Arthur J. Usher, IV violated RPC 3.3(a), 8.1(a), 8.1(b), 8.4(a), 8.4(c) and 8.4(d), in an elaborate video hoax widely circulated to the legal community about a young female attorney who had spurned his romantic attentions, the court found Mr. Usher did not violate Rule 8.4(g) as “the evidence supports a finding the [offending] email was motivated by personal anger at Jane Doe in particular rather than by bias or prejudice against women in general.” Mr. Usher received a three year suspension without automatic reinstatement.

BUT WHAT ABOUT STEREOTYPES & BIASES THAT AREN’T LEGALLY PROTECTED AND AREN’T EXPRESSLY ADDRESSED IN THE RULES... BUT ARE PROBABLY MORE COMMON AND, IF IGNORED, MAY BE MORE LIKELY TO IMPACT HOW WE SEE AND INTERACT WITH OTHERS?

FIRST IMPRESSIONS – HOW WE SEE PEOPLE

With your small group, look at each photo and together:

Create a description of the person(s) in the photo.

Do you expect you would have anything in common with him/her/them?

Do you expect you would have any specific differences?

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DRESSCLOTHINGACCESSORIESHAIR COLOR

Facial piercings are often associated with Skinheads, outlaws, and outcasts

According to a study by Harris Interactive, 21% of the US population has at least one tattoo.

Harris Interactive study says those who do not have tattoos, think people with tattoos are:

less attractive (45%)less sexy (39%)less intelligent (27%)less healthy (25%)less spiritual (25%)

PIERCINGS OR BODY ART

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DRESS/CLOTHING/ACCESSORIES/HAIR

BODY TYPE/WEIGHT BIAS

"Bodytypes" by Granito diaz - Own work. Licensed under CC BY-SA 4.0 via Wikimedia Commons -http://commons.wikimedia.org/wiki/File:Bodytypes.jpg#mediaviewer/File:Bodytypes.jpg

Research Paper | My Writing Portfoliojennatowers.wordpress.com1748 × 2048Search by image™http://developingcreativepractice.files.wordpress.com/2013/10/dove-real-beauty-campaign.jpg

Children or no children

PregnantMarried Children or no

childrenRemarriedSingle ParentSingle with no kids

BIAS RELATED TO FAMILY STATUS/STRUCTURE:

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Country of originState of originCity of originNeighborhoodPolitical partyClub membershipsFavorite sportsFavorite teams

BIAS RELATED TO LOCATION OR OTHER GROUP IDENTITY:

FINANCIAL AND EDUCATIONAL BIAS

Education levelSchool or college attendedIncomeCareer/jobHomemakerRenter or owner

WHO PUSHES YOUR BUTTON?What are the characteristics that

drive you crazy?

How do you handle people who push your buttons in mediation?

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ASSESSING YOUR VALUESWealthSecurityRespect for othersEducationCreativityEqualityAppearanceHappinessCompetitionHealthHopeConformingSocial recognitionAuthorityReligionPerfectionismRelationshipsTrust

LoyaltyPleasurePeaceAltruism (care for others)ParticipationHonestyAssertivenessCaringForgivenessCourageKindnessloyaltyToleranceUnityIntegrityPowerJoyInfluenceLove

JusticeSuccessSpiritualityFriendshipFamilyCareerFameTruthStatusAuthenticityWisdomAcceptanceHealthPassionRiskEnthusiasmOptimismCaringCompassionExcellence

InnovationBalanceTeamworkFunResponsibilityOpen-mindednessPrideResultsAchievementFairnessDecisiveness? ?

Cultivate awareness of your own bias and stereotype.

Bias is not inherently bad. We are naturally biased toward people we perceive as being like ourselves.

Problems arise when you act consciously or unconsciously becauseof your biases.

Understand where your values lie and be aware that others may not have the same values.

Explore what is important to the people participating in your mediation.

DON’T ASSUME!

PRACTICE TIPS

FACTORS THAT MAKE MEDIATION AND MEDIATORS MORE EFFECTIVE

Ability to ConnectAbility to Create TrustCredibilityAwarenessListening skillsStrategic skills

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WHO DO YOU HAVE TROUBLE CONNECTING WITH?

Describe the kind of client you know you won’t work with very well

What pushes your button?

Generational Differences

How You Language Things

Value differences

WHAT IF YOU JUST CAN’T GET PAST THE BIAS?

ADR RULE 2.7

(D) Termination of Mediation. The mediator shall terminate mediation whenever the mediator believes that continuation of the process would harm or prejudice one or more of the parties or the children or whenever the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely. At any time after two (2) sessions have been completed, any party may terminate mediation. The mediator shall not state the reason for termination except when the termination is due to conflict of interest or bias on the part of the mediator, in which case another mediator may be assigned by the court. ...

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RESOURCES AND REFERENCES

http://www.lookdifferent.org/what-can-i-do/implicit-association-test

https://implicit.harvard.edu/implicit/demo/

Christopher Honeyman, Patterns of Bias in Mediation, 1985 J. Disp. Resol. (1985).

Available at: http://scholarship.law.missouri.edu/jdr/vol1985/iss/9

Kenneth Cloke, Stereotyping, Bias and Prejudice in Conflict Resolution

Available at: http://www.scmediation.org/wp-content/uploads/2012/09/Ken-Cloke-Prejudice-Module-SCMA.pdf

Recognizing and Understanding Stereotypes and Bias, Clover Park Technical College

Available at: http://www.cptc.edu/stereotype/bias/lessonbuilder_files/Stereotypes_and_Bias_print.html

FOR MORE INFORMATION:

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