Mediators List Servs and the Rating Game

Ellen WaldmanSusan Exon

Victoria Pynchon

Ethical Mandates| Impartiality

• Standard II. Mediator must conduct mediation impartially - behav[ing] in a fashion free from favoritism, bias or prejudice

• Prejudice/partiality can stem from : participant personal characteristics, background, beliefs, conduct during mediation

Ethics Mandate | Conflicts of Interests• Standard III. avoid actual

conflict and appearance of conflicts– with mediation participants– with subject matter

• Conflicts must be disclosed. – Even with party consent,

mediators must forbear when conflict appears to threaten integrity of mediation

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The Accelerator Effect

The Bull-Horn Effect

Mediator Rating is Not a Problem

Mediation is a flexible process, as are mediator styles, the mediation’s procedural progression, and party self-determination. Whether online or not, rating mediators is part of the voluntary, consensual nature of mediation.

Standard I: Self-Determination

“A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection . . . .”

Self-Determination in Selection

• Subject matter expertise

• Geographic location• Mediator

style/orientation– This factor was a

strong desire of attorneys

– Most preferred directive/evaluative mediators

A. “A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.”

B. “A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”

Flexibility

• No standard precludes a mediator from serving in a directive/evaluative capacity.

• Being directive/evaluative does not impinge on mediator impartiality.

Impartiality• Offer several alternatives;• Maintain distance from

parties by predicting how a judge or jury might decide;

• Provide assessment in joint session;

• In caucus, provide only invited assessment w/out pushing any party to adopt;

• Discuss legal ramifications w/ the parties in a neutral manner to diffuse advocacy

Impartial Mediator While Evaluating• Remain passive as

to substance of mediation;

• Use a Socratic method of questioning;

• Evaluate merits of a “no agreement” alternative;

• And more . . .

“A mediator shall conduct a mediation . . . in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.”

Conforming

Mediator Conduct

• Consumer attorneys want directive mediators.

• Mediators often ask attorneys if they are seeking specific assistance such as providing a reality check to a party or some evaluative technique.

• No difference between asking attorneys directly or having them discuss their preferences on a listserv?

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• The “justice 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.

Lists Amplify Subjective Bias

• Evaluations of group members are strongly affected by the extent to which they support in-group norms.

• Group evaluations impose social pressures on others to reinforce those norms.

• Threats to social identity among members of in-groups lead participants to attempt to restore the in-group's norms by, for instance, derogating in-group members who represent a threat to in-group cohesiveness.

The Role of Categorization and In-Group Norms in Judgments of Groups and Their Members, 75 Journal of Personality and Social Psychology 976 (1998)

• 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.