ADR Report Brief

8/20/2019 ADR Report Brief

1/19

Can a third party

really be neutral?


2/19

Neutrality v ImpartialityNeutrality: not supporting or belonging to

either side in an argument (unbiasedbehavior)

Impartiality: the absence of bias or preferencein favor of one or more negotiators, their

interests, or the specic solutions that theyare advocating (unbiased attitude)


3/19

Underlying concepts in neutrality

Non-partisan fairness

he degree of mediator intervention!ole "imitation

#b$ectivity


4/19

%ediator Neutrality he mediator must not have the follo&ing:

pecuniary interest in the sub$ect matter

undisclosed relationship to the parties

possibility of personal gain


5/19

'actors that go against neutrality

) Implicit tereotype

*) he +alo ect.) /geism

0) elective 'acilitation

1) Incidental tructures

2) %anner of 3ommunication


6/19

Implicit tereotypetereotyping: the application of beliefs about the

attributes of a group to $udge an individual member of

that group4

Implicit stereotypes are the introspectively unidentied (orinaccurately identied) traces of past e5perience thatmediate attributions of 6ualities to members of a social

category

No person can gro& up in a society &ithout having learnedthe stereotypes assigned to the ma$or ethnic groups4


7/19

3hin vs !unnelsthe e5clusion of 3hinese-/mericans, +ispanic-

/mericans, and 'ilipino-/mericans as grand $ury forepersons &as assailed as a violation ofthe defendant7s right to e6ual protection

he court e5pressly considered the claim thatunconscious biases contributed to this forty

year e5clusion, concluding that there may bea si8eable ris9 that perceptions and decisionsmade here &ere li9ely aected by implicitstereotypes


8/19

he +alo ect/ cognitive bias in &hich an observer7s overall

impression of a person or entity inuences theobserver7s feeling and thoughts about theperson7s character

physically attractive men and &omen are

$udged to be 9inder, more interesting, moresociable, happier, stronger, of bettercharacter, and more li9ely to hold prestigious

$obs


9/19

/geism;ened as an alteration in feeling, belief, or

behavior in response to an individual7s orgroup7s perceived chronological age

"evy and


10/19

elective 'acilitation/ method &hereby mediator inuences the

content and outcome of the mediation bye5erting pressure to&ard the favored andagainst the disfavored outcome bydierentially creating opportunities to tal9

through the favored option (rather thanproducing evaluative statements about theclients7 positions or options)


11/19

;egree of mediator intervention'irst vie&: mediators can e5press their concern parties

if they thin9 a proposed agreement is unfair4 hey canterminate mediation on the ground of unfair situations

econd vie&: intervention is only for reducing theobstacles to communication, ma5imi8ing the

e5ploration of the alternatives, and addressing theneeds of those involved or aected

3ommonality: as long as the parties determine the

outcome, intervention is acceptable


12/19

Incidental tructures

able arrangementeating arrangement

#rder of presentations


13/19

able=eating

arrangementIf the mediator sits closer to one party, such

arrangement could create a more intimate

conversational dynamic bet&een the t&o persons andgive the impression they are congenial or in alignment4

the mediator could alter the arrangement and form atight circle &ith no table4

%ediators should be careful about chair placement andbody positioning so as not to turn their bac9s to&ardone disputant more than the other4


14/19

#rder of presentations/s9ing the parties &ho &ould li9e to spea9

rst may be perceived as re&arding one partyover the other (the more assertive party orthe one closest to the mediator, for e5ample)

>arties should be told &hy and ho& the

mediators determined the order ofpresentations (for e5ample, a random methodof selection, such as by alphabetical order orcoin toss)4


15/19

%anner of

communication one of voice

peed of speech

ye contact'acial e5pression


16/19

3ommon conclusions/ccording to >aul


17/19

3arol I8umi he veneer of neutrality is stripped a&ay by

research ndings that sho& convincingly that

mediators fall far short of the ethical duty to treatparties impartially and &ithout bias4

?hen confronted &ith scientic ndings and

empirical evidence, mediation professionals mustconcede that the re6uirements for eliminatingracial, gender, and other types of bias inmediation have not been met4


18/19

mediators have the ability to enhance internalneutrality by adopting e5plicit plans to reducethe application of stereotypes activatedthrough encounters &ith parties and byreplacing biased thoughts and reactions &ithnon-pre$udiced ones4 %ediators must bea&are of and ac9no&ledge unconscious biasesin order to garner the motivation to self-correct4


19/19

ADR Report Brief

Documents

Transcript of ADR Report Brief