Listservs of Injustice

The Reification and Perpetuation of “Othering” Bias in Mediation

Purpose of the Civil “Justice” System

• To addresses moral wrongs and injuries that – Are an affront to the victim’s value or

dignity– Violate our norms of interaction and

social bonds– Live at the nexus where one person

abuses her liberty at at the expense of another’s security and well being,

• The “system” is– a forum where a victim is given the

opportunity to negate the affront, vindicate her own value and moral worth, and restore herself to the status of an equal.

– a legal regime that responds to wrongdoing by vindicating the right of the victim to hold the wrongdoer accountable.

Subjective Reviews are Fertile Ground for Unconsciously

Biased Judgments

• In Rowe v. General Motors Co., the Fifth Circuit held that

• [P]romotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management. We and others have expressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non-discriminatory action.

Who Listservs Disserve

• Women and minority mediators who are in short supply outside the family law and employment arena

• Women and minority parties who are far better reflected on the bench than they are in mediation

Why Listservs Disserve Women Mediators

Women are more harshly judged than their white male peers• When given identical descriptions

of professor behavior, students gave professors they thought were male much higher evaluations across the board than they did professors they thought were female.

• When they told students they were men, both the male and female professors got a bump in ratings.

• When they told the students they were women, they took a hit in ratings. Because everything else was the same about them, this difference has to be the result of gender bias.

Judicial Performance Evaluations (JPEs), ratings by attorneys have historically exhibited bias against women and minorities, due to patterns of lower performance ratings by gender and race.

• When given identical work product, lawyers routinely found more mistakes in the work of associates they believed to be African American than they found in identical work attributed to whites

• When given identical resumes, employers routinely rated whites more competent than blacks.

Why Listservs Disserve Minority Mediators

JAMS Miami Mediators

Current JAMS VideoNo Mediator of Color Represented

Participant Dissatisfaction with Gender Differences in

Mediation

• When the mediator was a different gender than one of two parties– the non matched party felt that ‐

the mediation lacked effective communication.

– the non-matched party felt the mediator was being judgmental and taking sides

• When the mediator was a different gender than both parties, – the parties reported lower levels

of satisfaction with the mediation process

– But they reported that communication was effective

• Regardless of party gender, male mediators were– more often perceived as taking

sides than female mediators– More often considered males to

be less impartial.

http://ombudsfac.unm.edu/Article_Summaries/Fairness_Understanding_and_Satisfaction.pdf

• When the mediator was a different race than both parties, the parties shared a decreasing sense of optimism over the course of the mediation, lacking hope that the dispute might be productively resolved.

• When mediator shared race with only one of the parties, the other reporting feeling judged by the mediator and felt a lack of control in the mediation process.

Participant Dissatisfaction with Racial Differences in Mediation

http://ombudsfac.unm.edu/Article_Summaries/Fairness_Understanding_and_Satisfaction.pdf

Examples of the Way Listservs Disserve Civil Justice

• Race is associated with physician assessments of patient intelligence, physical feelings of affiliation toward the patient and beliefs about the patient’s likelihood of risk behavior and adherence to medical advice

• Blacks, Hispanics and women are routinely undertreated for pain based on physicians’ underestimation of their pain.

• Take the implicit bias test• Pay attention to your tendency, if any, to seek out white men

for leadership/power positions, assignments and the like• Work against your biases by including women and people of

color in your networks and on your lists• Persist in asking “are there women/people of color” who can

do this job, speak on this panel” (the answer is always “yes”; if it’s “no,” the nay-sayer hasn’t sufficiently diversified his/her network.

• Go beyond listservs.