1 00:00:00,000 --> 00:00:05,040 Support for this episode comes from Lawyers Mutual Insurance Company, who have proudly 2 00:00:05,040 --> 00:00:11,240 provided California attorneys with specialized professional liability coverage for over 45 3 00:00:11,240 --> 00:00:12,480 years. 4 00:00:12,480 --> 00:00:18,280 And did you know? Lawyers Mutual offers competitive specialty rates for their members who act 5 00:00:18,280 --> 00:00:22,880 as a neutral, either on a full-time or part-time basis. 6 00:00:22,880 --> 00:00:28,640 So, as part of their arbitration mediation specialty program, all members receive an 7 00:00:28,640 --> 00:00:33,560 individualized premium based on the areas of practice their firm handles. 8 00:00:33,560 --> 00:00:37,800 This allows Lawyers Mutual to adjust rates annually, and as you build your mediation 9 00:00:37,800 --> 00:00:43,400 practice, your premium will reflect the portion of your time spent working as a neutral. 10 00:00:43,400 --> 00:00:49,000 To learn more about how this great program can benefit your firm, visit LawyersMutual.com 11 00:00:49,000 --> 00:00:50,000 today. 12 00:00:50,000 --> 00:01:02,400 Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Angela 13 00:01:02,400 --> 00:01:07,000 Reddick, right of signature resolution will guide you through navigating differences and 14 00:01:07,000 --> 00:01:09,200 avoiding bias. Let's dive in. 15 00:01:09,200 --> 00:01:14,600 Hello, everyone, and welcome to the Beverly Hills Bar Association's Mediation Certification 16 00:01:14,600 --> 00:01:21,560 Program. The course within that program on bias and implicit bias and how we might manage 17 00:01:21,560 --> 00:01:24,960 that within the mediation world. 18 00:01:24,960 --> 00:01:31,520 My specific title today is Navigating Differences and Avoiding Bias, a Guide for Mediators. 19 00:01:31,520 --> 00:01:37,360 My name is Angela Reddick-Rite, and I am a mediator with Signature Resolution, and I'm 20 00:01:37,360 --> 00:01:40,360 so privileged and excited to be here. 21 00:01:40,360 --> 00:01:46,560 And thank you to the Beverly Hills Bar Association for inviting me to be a part of, to be one 22 00:01:46,560 --> 00:01:53,720 of the instructors in your inaugural Mediation Certification Program. I think it's wonderful 23 00:01:53,720 --> 00:01:59,120 that the Beverly Hills Bar Association has started its own certification program, and 24 00:01:59,120 --> 00:02:06,000 I'm grateful to be a part of it, which gives an overview of my background and experience. 25 00:02:06,000 --> 00:02:11,800 And again, I just, hopefully you'll see from the work that I've done in practicing for 26 00:02:11,800 --> 00:02:19,560 28 years and now full-time as a mediator for the last four years that my insights and experience 27 00:02:19,560 --> 00:02:25,360 that I will bring to the table today, hopefully is invaluable to you and helps you as you 28 00:02:25,360 --> 00:02:30,960 navigate and begin your path as mediators or continue your path as mediators, or think 29 00:02:30,960 --> 00:02:34,760 about, you know, whether you actually want to enter the mediation field. 30 00:02:34,760 --> 00:02:40,000 First let me begin by giving you an overview of what to expect in today's session. And 31 00:02:40,000 --> 00:02:45,400 I would just like to begin again by saying what an exciting journey for those of you 32 00:02:45,400 --> 00:02:51,000 who are embarking on your path to becoming mediators or considering it. And even if you're 33 00:02:51,000 --> 00:02:58,040 not thinking about becoming a mediator, I'm hopeful that today that the insights and skills 34 00:02:58,040 --> 00:03:03,920 that you gain, not just from today's session, but overall in the sessions that are part 35 00:03:03,920 --> 00:03:09,680 of the certification program, that you will gain skills and insights that not only help 36 00:03:09,680 --> 00:03:14,640 you if you're considering a path as a mediator or have already embarked on that path, but 37 00:03:14,640 --> 00:03:23,320 that it assists you with wherever you are in your law practice. I know as attorneys, 38 00:03:23,320 --> 00:03:29,940 we are hired as advocates and with the expectation that we will zealously represent the interests 39 00:03:29,940 --> 00:03:35,880 of our clients. And although it seems counterintuitive and it seems to go against our training as 40 00:03:35,880 --> 00:03:43,440 attorneys and against the zealous mindset, what I find now as a full-time mediator that 41 00:03:43,440 --> 00:03:49,040 it is really helpful that even when we are advocates that we get some training and some 42 00:03:49,040 --> 00:03:55,480 insights around the theories and what goes into making a mediation successful. Because 43 00:03:55,480 --> 00:04:01,720 even as advocates, it helps us to understand what the process is about and how best to 44 00:04:01,720 --> 00:04:08,320 represent our clients in a mediation setting. And it also helps to reframe our thinking 45 00:04:08,320 --> 00:04:13,680 as advocates. I'm a former advocate and, you know, represented clients for many, many years 46 00:04:13,680 --> 00:04:19,920 in employment matters on both sides of the aisle. But there's a natural instinct when 47 00:04:19,920 --> 00:04:26,360 we approach mediation as advocates to kind of keep our litigation hat on or to keep our 48 00:04:26,360 --> 00:04:34,360 advocate hat on. And to forget that mediation in the process of mediation is that one opportunity 49 00:04:34,360 --> 00:04:41,640 or continued opportunity for us to focus on what resolution looks like as opposed to continuing 50 00:04:41,640 --> 00:04:49,400 forward with an aggressive litigation or transactional strategy. So I invite you in this one hour 51 00:04:49,400 --> 00:04:54,240 that we have together and as you're going through the certification training to kind 52 00:04:54,240 --> 00:05:00,960 of take off your zealous advocate hat, put yourself in the body of a mediator or in the 53 00:05:00,960 --> 00:05:07,200 room of an actual mediation process and think about how even as an advocate, you can embrace 54 00:05:07,200 --> 00:05:13,600 the concepts of dispute resolution and conflict resolution and use that whether you're mediating 55 00:05:13,600 --> 00:05:19,520 or not or serving as a mediator or not to help better serve your clients. And so our 56 00:05:19,520 --> 00:05:31,040 goal today in this session is to focus specifically on bias in mediation, how bias arises in mediation 57 00:05:31,040 --> 00:05:40,280 and how we, you know, as mediators, as advocates representing clients, how we can better identify 58 00:05:40,280 --> 00:05:47,520 our own biases, manage those in the process and in managing it, use it to achieve better 59 00:05:47,520 --> 00:05:55,240 outcomes in the mediation process. So why is this topic of bias management in mediation 60 00:05:55,240 --> 00:06:02,040 important? Specifically in the context of mediation, I'm sure that many who are participating 61 00:06:02,040 --> 00:06:09,880 in today and in this certification training have probably set through, you know, dozens, 62 00:06:09,880 --> 00:06:16,400 if not more classes on bias, implicit bias, microaggressions. In fact, thank you to the 63 00:06:16,400 --> 00:06:21,920 Beverly Hills Bar Association. My colleague, former judge Helene Dandedina and I a few 64 00:06:21,920 --> 00:06:28,960 months ago in 2024 had the opportunity to present a session on microaggressions in the 65 00:06:28,960 --> 00:06:34,360 practice of law. So I'm sure many of you have set through many trainings like that and hopefully 66 00:06:34,360 --> 00:06:39,400 they've been helpful and helped to advance your thinking around these issues. But today 67 00:06:39,400 --> 00:06:46,800 we're going to focus specifically on bias in the context of mediation. And it's important 68 00:06:46,800 --> 00:06:54,360 because bias, believe it or not, specifically in a mediation, it can affect our judgment, 69 00:06:54,360 --> 00:07:00,920 it can affect our decision making, how we advise our clients on achieving resolution, 70 00:07:00,920 --> 00:07:07,360 and it could lead to unfair outcomes as well as dissatisfaction with the process, the attorneys, 71 00:07:07,360 --> 00:07:15,000 the litigants and the neutral. And one of the worst feelings as a mediator who I really 72 00:07:15,000 --> 00:07:20,720 take my cases to heart and really, you know, work hard to give them my all and to own the 73 00:07:20,720 --> 00:07:26,840 cases in a way as, you know, so that the parties know that I'm not just hired as your, your 74 00:07:26,840 --> 00:07:32,240 hired guns, so to speak, your paid mediator to get your cases settled. But I take on each 75 00:07:32,240 --> 00:07:37,440 case in a way that, you know, hopefully suggests to the parties that this case is important 76 00:07:37,440 --> 00:07:46,040 to me, the outcome is important to me. And that, you know, is a great undertaking because 77 00:07:46,040 --> 00:07:51,840 when parties or litigants or attorneys are dissatisfied with the process, we as neutrals, 78 00:07:51,840 --> 00:07:59,440 believe it or not, really take it to heart. And so one of the things that I seek to achieve 79 00:07:59,440 --> 00:08:05,040 in my mediations is not just great outcomes with respect to settlement or helping parties 80 00:08:05,040 --> 00:08:11,840 to move their process along, even if it doesn't yield in settlement. But I think on the words 81 00:08:11,840 --> 00:08:18,960 of someone that I have admired over the years, and that's a famed author and poet Maya Angelou, 82 00:08:18,960 --> 00:08:24,000 may she rest in peace. She once said that I've learned that people will forget what 83 00:08:24,000 --> 00:08:31,200 you said, people will forget what you did, but people will never forget how you made them feel. 84 00:08:31,840 --> 00:08:39,200 So understanding bias and the impact on how it makes people feel throughout the process, does it, 85 00:08:39,200 --> 00:08:45,280 you know, do we make people feel respected in the process? That goes to the heart of not just 86 00:08:45,280 --> 00:08:51,520 settlement and those kind of, you know, positive outcomes from a member's perspective, but it goes 87 00:08:51,520 --> 00:08:59,360 to the heart of how people feel about the process overall. And so if attorney, even when cases settle 88 00:09:00,080 --> 00:09:05,760 and attorneys or their clients walking, walk away distrusting the process or feeling dissatisfied 89 00:09:05,760 --> 00:09:11,840 with the process or feeling disrespected throughout the process, that I would submit to you is not 90 00:09:11,840 --> 00:09:17,440 a successful mediation because the goal also is not just to have a positive settlement, 91 00:09:17,440 --> 00:09:24,800 member's outcome, but the goal is to create a process and to help facilitate a process 92 00:09:24,800 --> 00:09:30,880 where everyone feels heard, everyone feels respected, and everyone feels that it was a fair 93 00:09:30,880 --> 00:09:39,760 process. So understanding bias is critical to not only the member's outcome, but it's also critical 94 00:09:39,760 --> 00:09:46,080 to achieving success in terms of satisfaction and trust in the overall mediation process. And we 95 00:09:46,080 --> 00:09:52,240 know we live in a climate right now where there's a lot of distress in, you know, mediation and 96 00:09:52,240 --> 00:10:00,160 mediators even. And so I think we all have to join together, start to embrace some principles 97 00:10:00,160 --> 00:10:06,160 that will allow us to create a greater and a better process for our clients, who are the 98 00:10:06,160 --> 00:10:11,680 attorneys and the clients that they represent. So it's a critically important topic, bias and 99 00:10:11,680 --> 00:10:19,120 mediation. So let's understand bias and mediation, you know, specifically, I call this a focus on 100 00:10:19,120 --> 00:10:27,280 the basics, right? What is the definition of bias? So first, before I provide you that, 101 00:10:27,280 --> 00:10:34,080 that definition, first want to say we all have biases, you know, some see the bias word or the 102 00:10:34,080 --> 00:10:42,000 B word as negative. And in, you know, many instances, it does have negative connotations. But, you know, 103 00:10:42,000 --> 00:10:47,840 the reality is that we all have bias. And why is that, you know, some of us in our trainings, 104 00:10:47,840 --> 00:10:54,640 we've seen probably seeing a picture of kind of a person's head. It's a cartoon picture, 105 00:10:55,360 --> 00:11:01,040 or illustrated picture of a person's head and their brain. And it shows that in our brains that 106 00:11:01,040 --> 00:11:08,320 our brains move, the waves in our brains move at many, many milliseconds per minute, right? And 107 00:11:08,320 --> 00:11:14,960 I'm not a scientist or psychologist. So our doctors, so I hesitate to go into too much detail 108 00:11:14,960 --> 00:11:19,680 here. But the general principle that I think many of us have learned, or all of us have learned, 109 00:11:19,680 --> 00:11:26,240 is that our brain is constantly moving and processing information. And it processes, 110 00:11:26,240 --> 00:11:34,720 you know, what we think, how we think, what we perceive to be good or bad. And it helps us to 111 00:11:34,720 --> 00:11:41,440 think through, looking through things through a lens and processes for us, what we should think, 112 00:11:41,440 --> 00:11:46,720 and how we should think about it. And, you know, how does this happen? Again, I'm not a brain 113 00:11:46,720 --> 00:11:53,840 expert or a psychologist, but it happens from when we are in the womb, our mother's womb, 114 00:11:53,840 --> 00:11:59,120 perhaps this is the things that our parents say to us while we're in the womb, or the things we 115 00:11:59,120 --> 00:12:06,320 overhear while we're in our mother's wombs. But for sure, after we're born, our biases and how 116 00:12:06,320 --> 00:12:12,400 we think about the world and see the world is shaped, you know, from the environment that we 117 00:12:12,400 --> 00:12:19,440 are in, from our family environments to our cultural and religious environments and other societal 118 00:12:19,440 --> 00:12:26,160 influences. And from the time that we are infants coming out the womb, all the way up until this 119 00:12:26,160 --> 00:12:33,280 point in our lives, our brains are constantly receiving information, processing that information, 120 00:12:33,280 --> 00:12:39,040 and helping us to decide in broad terms, this is good. You should think when you see this, 121 00:12:39,040 --> 00:12:43,920 when you touch this, when you feel this, when you see this kind of person, you should automatically 122 00:12:43,920 --> 00:12:50,320 see that person or that thing as good. But this thing over here, this is bad. Don't touch it. 123 00:12:50,320 --> 00:12:55,760 When you see a person that looks this way, thinks this way, presents in a certain way, 124 00:12:55,760 --> 00:13:02,080 think of them as bad. And it's our way, because so much is going on in our brain, 125 00:13:02,080 --> 00:13:09,600 it's our brain's way of helping us in a positive way to simplify things and to be able to see 126 00:13:09,600 --> 00:13:16,560 things and quickly process things. But in a bad way, it simplifies our thinking so much in some 127 00:13:16,560 --> 00:13:23,920 instances that it causes us to have biases against others and in certain situations that aren't 128 00:13:23,920 --> 00:13:31,760 necessarily based on merit or based on any proven, you know, statistics or information about a 129 00:13:31,760 --> 00:13:38,240 certain group or a certain individual based on how they present. So we all have biases because 130 00:13:38,240 --> 00:13:44,240 our brains, for the most part, and I know, you know, there are different, you know, medical issues 131 00:13:44,240 --> 00:13:51,840 and diagnoses and so forth. But, you know, our brains generally process things in a way to help 132 00:13:51,840 --> 00:13:58,720 try to simplify how we think about things and how we process things. So that naturally leads to bias. 133 00:13:58,720 --> 00:14:03,920 Okay, so the first thing, if you don't walk away with anything else today, I want you to understand 134 00:14:03,920 --> 00:14:11,760 that we all have the big B, we all have biases, some good, some not so good, and it's the process 135 00:14:11,760 --> 00:14:18,240 of identifying those and owning those that are not so good, those biases, that we start to grow 136 00:14:18,240 --> 00:14:25,120 and to evolve as individuals, as professionals, as mediators, as attorneys, and all the other 137 00:14:25,120 --> 00:14:34,400 hats that we wear. So what is bias? Webster Dictionary simply defines it as an inclination of a 138 00:14:34,400 --> 00:14:40,160 temperament or an outlook. Like, it means that we are inclined based on how we've been socially 139 00:14:40,160 --> 00:14:46,800 engineered to see things in a certain way and to process things in a certain way. And it sometimes 140 00:14:46,800 --> 00:14:55,200 leads to personal and unreasoned judgment, which can lead to bias, prejudice, and all the things 141 00:14:55,200 --> 00:15:02,720 associated with those not so great words. There are two types of bias generally. There is conscious 142 00:15:02,720 --> 00:15:10,320 or explicit bias, and conscious, and there's also unconscious or also known as implicit bias. 143 00:15:10,320 --> 00:15:19,200 Conscious or explicit bias is based on the beliefs and attitudes that we have about a person or a 144 00:15:19,200 --> 00:15:25,760 group. We're very conscious about it. We know we feel this way about a certain group. Nobody can 145 00:15:25,760 --> 00:15:31,920 tell us anything otherwise. And primarily, not because those persons or those groups may be good 146 00:15:31,920 --> 00:15:37,440 or bad, but because of how we've been engineered to think about a certain group, we automatically, 147 00:15:37,440 --> 00:15:43,760 consciously and explicitly think of them in a certain way. So for example, depending on our 148 00:15:44,720 --> 00:15:50,560 political affiliations, and I know talking about politics and misclimate, it's not necessarily a 149 00:15:50,560 --> 00:15:58,480 safe bet, but just for purposes of example, if you've been raised as a Democrat, your parents were 150 00:15:58,480 --> 00:16:04,640 Democrats and their parents, and you're very active in the political discussions and wired 151 00:16:04,640 --> 00:16:10,160 toward what might be considered a more liberal or progressive way of thinking, then you're thinking, 152 00:16:10,160 --> 00:16:16,240 you know, Democrats are good and Republicans are bad. And independents are crazies, right? These 153 00:16:16,240 --> 00:16:22,160 are kind of the general assumptions that one might put on a group. All Republicans are good and all 154 00:16:22,160 --> 00:16:27,920 Democrats are bad and independents are crazy because they haven't picked one side or the other. 155 00:16:27,920 --> 00:16:36,320 Of course, we have good and bad apples on both in all sides of the aisle in the equation. So 156 00:16:36,320 --> 00:16:42,240 none of those general statements that we may make, whether it be about political affiliation, 157 00:16:42,240 --> 00:16:48,240 race, gender or any other category, none of those general assumptions that we make, 158 00:16:48,960 --> 00:16:55,920 tend to be true because we have good people, bad people, good apples, bad apples on all sides of 159 00:16:55,920 --> 00:17:01,360 the equation, no matter what we're talking about. But because we may have been raised in a certain 160 00:17:01,360 --> 00:17:07,680 way and raised to only see the world through a certain lens, that could lead to a very conscious 161 00:17:07,680 --> 00:17:14,000 and explicit bias that we have about certain individuals and certain groups of people. Now, 162 00:17:14,000 --> 00:17:21,600 what is unconscious bias or implicit bias? It is the unconscious attitude or stereotype that we may 163 00:17:21,600 --> 00:17:30,480 have that may not knowingly have that shapes our understanding, our actions and our decisions as 164 00:17:30,480 --> 00:17:36,960 it relates to certain people, individuals, groups or our situation and situations. And our unconscious 165 00:17:36,960 --> 00:17:43,280 bias is developed over time based on what we've been wired to think, based again on how we've been 166 00:17:43,280 --> 00:17:49,840 socially engineered. Now, for example, if you are the hiring manager or participating in a hiring 167 00:17:49,840 --> 00:17:57,040 process within your law firm or organization, you may unconsciously favor individuals who went to 168 00:17:57,040 --> 00:18:03,920 your same undergrad or who went to your same law school, right? Again, not bad, but because they 169 00:18:03,920 --> 00:18:14,080 are associated with you and share an interest or a background, that you can look at that application 170 00:18:14,080 --> 00:18:19,040 and you're like, hmm, you know, my same alma mater. I know even in my mediation, when I look at the 171 00:18:19,040 --> 00:18:25,520 backgrounds of the attorneys and I see we worked at the same law firm at some point or well, no, 172 00:18:25,520 --> 00:18:32,880 that's not a good example. But I see if we attended the same school or participate in some of the same 173 00:18:32,880 --> 00:18:39,440 organizations, it's not making me favor them more. But I recognize something that we have in common. 174 00:18:39,440 --> 00:18:44,160 And so in the mediation, I may bring up, I see we went to the same law school, what was your 175 00:18:44,160 --> 00:18:51,040 experience like? And I use it as a way to build connection that and are their client in the 176 00:18:51,040 --> 00:18:57,920 mediation. So we have implicit biases that go with us, you know, even when we're not thinking about 177 00:18:57,920 --> 00:19:04,880 it or thinking that we're being biased. Another example in the hiring process, we may be socially 178 00:19:04,880 --> 00:19:11,280 engineered to think that individuals by their name, so for example, if they have more of a 179 00:19:11,280 --> 00:19:19,120 traditional American pie type of name or sounding name, such as Ashley, Mary, or John, or Steve, 180 00:19:20,240 --> 00:19:25,680 then, you know, we may naturally just think, oh, that that person is, you know, obviously 181 00:19:25,680 --> 00:19:32,000 a great provide. And you might, you know, push their resume to the top of the pile compared to 182 00:19:32,720 --> 00:19:38,880 someone who may have more of a culturally, you know, specific culturally or ethnic identifying. 183 00:19:38,880 --> 00:19:46,960 So it may cause us to question whether based on the person's name, surname or first name, 184 00:19:47,520 --> 00:19:53,440 whether they have the capabilities to work within your organization, whether they're good at what 185 00:19:53,440 --> 00:20:00,080 they do, whether they are as, you know, smart or capable as a person, you know, with more of a 186 00:20:00,080 --> 00:20:09,600 traditional American pie type sounding name. And so those implicit biases carry with us, even, you 187 00:20:09,600 --> 00:20:14,320 know, when we're not conscious of them, and even when we think that the decisions we're making 188 00:20:15,280 --> 00:20:22,640 really don't have an impact, but they really do. So another example we see in the orchestra world 189 00:20:22,640 --> 00:20:30,080 that meaning at one point it was the statistics shown that the majority of people who auditioned for 190 00:20:30,080 --> 00:20:36,240 orchestras and were ultimately picked were men. And so that most of the symphonies and orchestras, 191 00:20:36,240 --> 00:20:41,520 you know, the well regarded symphonies and orchestras throughout the world and throughout 192 00:20:41,520 --> 00:20:48,320 our country here in the US primarily had male players and musicians. So does that mean male or 193 00:20:48,320 --> 00:20:56,000 male players or musicians are more talented than female or other or their players or musicians? 194 00:20:56,000 --> 00:21:02,320 No, it does not. But there were implicit biases that NACC that kept carried on for generations 195 00:21:02,320 --> 00:21:09,040 to where the male musicians would be selected more often than the female or the other or their 196 00:21:09,040 --> 00:21:15,920 musicians. So now most well regarded orchestras and symphonies around the country have gone to blind 197 00:21:15,920 --> 00:21:24,320 auditions in order to begin the process of eliminating that gender bias. So the point is we all have 198 00:21:24,320 --> 00:21:32,480 biases, we're all guilty of the big B. Some of our biases are conscious based on how we've been wired, 199 00:21:32,480 --> 00:21:38,480 and some are unconscious also based on how we've been wired. All of how we identify those and how 200 00:21:38,480 --> 00:21:44,720 we begin to tackle some of our own biases specifically in the mediation context. Impact of 201 00:21:44,720 --> 00:21:54,000 biases in the mediation process. So I've already touched on this, but our biases specifically 202 00:21:54,000 --> 00:22:01,440 in mediation can impede resolution, you know, if there's a lack of respect or perceived lack of 203 00:22:01,440 --> 00:22:08,800 respect or distrust in the process, it may hamper the party's ability to in their attorneys to hear 204 00:22:08,800 --> 00:22:16,080 the mediator to believe that the mediator is really delivering truthful and honest and transparent 205 00:22:16,080 --> 00:22:21,120 information. It may impact settlement value. We may, I'm going to talk about this in just a few 206 00:22:21,120 --> 00:22:27,040 minutes, but we may think that the other person on the other side doesn't deserve a high value 207 00:22:27,040 --> 00:22:32,960 settlement because of their ethnic background or their gender background or their socioeconomic 208 00:22:32,960 --> 00:22:39,680 status. It may impact the perceived fairness of the settlement. Did this mediator, you know, I 209 00:22:39,680 --> 00:22:45,520 as an African American woman, if I'm in a mediation where the plaintiff perhaps is another African 210 00:22:45,520 --> 00:22:53,520 American, is my being African American, is the perception that I'm really pushing and advocating 211 00:22:53,520 --> 00:22:59,680 or although I'm neutral officially, right, that I person in the other room looks like me. So if 212 00:22:59,680 --> 00:23:05,680 there's a perception that even when you represent another category that you can't be fair or neutral 213 00:23:06,400 --> 00:23:12,560 or that you may have a bias against someone in another other category, then that can impact 214 00:23:12,560 --> 00:23:19,680 the perceived fairness of a settlement. And then again, it leads to frustration of the parties 215 00:23:19,680 --> 00:23:26,160 and distrust of the process and of the neutral. And I tell you as someone who does this date in 216 00:23:26,160 --> 00:23:32,640 and out and who really cares about not just the settlement value or outcome of mediations, 217 00:23:32,640 --> 00:23:38,800 but I really care about how people leave, how they feel about the process and their feeling 218 00:23:38,800 --> 00:23:44,080 that they got a fair shake, that they were heard, that they were listened to, and that they were 219 00:23:44,080 --> 00:23:51,200 respected in that whatever protected category that they may fall in, that that was not held 220 00:23:51,200 --> 00:23:59,520 against them, but that their that protected category actually brought value to the mediation and that 221 00:23:59,520 --> 00:24:08,160 even the mediator based on her, his, or their other background and experiences that that too 222 00:24:08,160 --> 00:24:14,400 will bring insights to the mediation that are valuable and appreciated as a part of the process. 223 00:24:14,400 --> 00:24:23,040 So how do we identify our biases? I've already touched on this, but the big thing is to realize 224 00:24:23,040 --> 00:24:29,760 that we all have biases because of how our brains work, right? And the influences that make us who 225 00:24:29,760 --> 00:24:37,280 we are. So we all have them. And the first step to, you know, resolving a problem or solving a 226 00:24:37,280 --> 00:24:45,680 problem is being aware and owning it and acknowledging it and acknowledging it in a way where you 227 00:24:45,680 --> 00:24:51,200 start to personalize it and say, you know what, and you may not voice it to anyone else, right? 228 00:24:51,200 --> 00:24:56,080 But you start to say to yourself, you know, I recognize that I have leanings this way. 229 00:24:56,080 --> 00:25:01,600 And sometimes those leanings and those perspectives aren't good and they don't make me feel a good 230 00:25:01,600 --> 00:25:08,080 about who I am or how I see the world or how I engage with others that may be in an other 231 00:25:08,080 --> 00:25:14,960 category that I may have some bias toward. So when we start to be self aware, then and make the 232 00:25:14,960 --> 00:25:21,680 decision to own it and to begin to work on it, that is the very first step and probably the most 233 00:25:21,680 --> 00:25:27,680 important step to identifying our biases. And then of course, once we identify them, 234 00:25:27,680 --> 00:25:33,120 we want to participate in opportunities to learn more about those biases and how to manage them, 235 00:25:33,120 --> 00:25:39,680 whether it be through training classes or exercises. I've also seen something start to arise in our 236 00:25:39,680 --> 00:25:46,320 culture where, you know, people across ethnic backgrounds, religious backgrounds, are hosting 237 00:25:46,320 --> 00:25:53,680 things like small dinners and other opportunities, hikes, to start to get to know each other in a way 238 00:25:53,680 --> 00:26:00,560 that's beyond just what we see and start to build relationships across whatever device that there 239 00:26:00,560 --> 00:26:07,760 may be. And that is so powerful because in those instances, it allows you to be transparent and 240 00:26:07,760 --> 00:26:13,600 honest, but in a way to where it's well received on the other side, the other side has a chance to 241 00:26:13,600 --> 00:26:18,720 share, you know, kind of their perspective on how you may be thinking and in the reverse as well. 242 00:26:18,720 --> 00:26:24,800 And that dialogue starts to break down barriers, starts to break down divides, and starts to help 243 00:26:24,800 --> 00:26:31,680 us see each other really as fellow humans and not as others that are so different from me 244 00:26:31,680 --> 00:26:37,200 that I could never have a real conversation or real dialogue with them. So finding ways, 245 00:26:37,680 --> 00:26:42,800 whether it be in your company or law firms or organizations, annual training classes, 246 00:26:42,800 --> 00:26:48,800 but I invite you to our the Bar Association classes, even this one, after this one hour, I invite you 247 00:26:48,800 --> 00:26:55,920 to and encourage you to go and look for opportunities, other opportunities to really start to hone in 248 00:26:55,920 --> 00:27:02,800 on your own biases and how to more effectively manage those and actually start to minimize, 249 00:27:02,800 --> 00:27:10,800 look for books, look for resources where you could start to educate yourself and own your own learning 250 00:27:10,800 --> 00:27:17,840 in this regard. And then, you know, once we are able to look inwardly and to think about where we 251 00:27:17,840 --> 00:27:22,800 personally may have some pitfalls in terms of how we see others and how we see the world, 252 00:27:22,800 --> 00:27:30,800 it better equates us to start to learn how to recognize it in our mediations and how to recognize it 253 00:27:30,800 --> 00:27:37,840 when the attorney's involved in representing their clients in mediation, where they their perspectives 254 00:27:37,840 --> 00:27:43,840 may be based on some biases, not for the purposes of pointing fingers, but kind of tuning into it. 255 00:27:43,840 --> 00:27:50,800 And as the mediator using that to see if you can help navigate, not become upset, not confrontational, 256 00:27:50,800 --> 00:27:56,640 not make them feel bad and, you know, call them on the carpet, so to speak, but you can use that 257 00:27:56,640 --> 00:28:03,840 insight and information and what you're seeing in the process to help ask questions, to help start to 258 00:28:03,840 --> 00:28:11,120 help start to present ideas and options that start to minimize the impact of what some of those biases 259 00:28:11,120 --> 00:28:16,560 may be, whether it be from the attorneys or the litigants that they represent or that you all 260 00:28:16,560 --> 00:28:25,200 represent. And then identifying our biases also helps us to understand what biases individuals, 261 00:28:25,200 --> 00:28:31,920 litigants, attorneys may have against us as neutrals and how that is impacting the process. 262 00:28:31,920 --> 00:28:39,680 And I definitely want to talk about that more. What are some common biases that we see in mediation? 263 00:28:40,640 --> 00:28:49,520 We see cultural biases. We see gender biases, linguistic biases, and so many others. The list 264 00:28:49,520 --> 00:28:58,720 can go on and on. But with respect to cultural culture, this means that we may have biases 265 00:28:58,720 --> 00:29:06,320 against individuals from a certain background or culture or ethnic experience. So, for example, 266 00:29:06,320 --> 00:29:13,440 if someone at a mediation, whether it be a party or the other opposing counsel, you know, the opposing 267 00:29:13,440 --> 00:29:19,920 repris, you know, counsel, if they show up, if they're African-American and they show up 268 00:29:20,480 --> 00:29:26,480 they're female or even male and they show up with what might be considered a natural hairstyle or 269 00:29:26,480 --> 00:29:33,280 afro or braids or locks, something that falls within the Crown Act, which is now has been 270 00:29:33,280 --> 00:29:39,600 passed here in California, prohibiting discrimination and decisions in the workplace, 271 00:29:39,600 --> 00:29:44,080 you know, based on how a person wears their hair, specifically their natural hair. 272 00:29:44,640 --> 00:29:50,240 But if we see someone that comes with something other than kind of a more traditional, what might 273 00:29:50,240 --> 00:29:57,920 be seen as a European-style hair that's, you know, relaxed or straightened or, you know, curled in a 274 00:29:57,920 --> 00:30:04,720 certain way, are we going to think differently of them? And again, you know, that could be a form 275 00:30:04,720 --> 00:30:10,240 of conscious bias, like, oh, anyone that wears natural hair, I don't think they're good at what 276 00:30:10,240 --> 00:30:14,000 they do. I don't think they know what they're talking about. And I think they're, you know, 277 00:30:14,000 --> 00:30:19,360 less than a great advocate, right? Or it could be implicit, right? You've never said to yourself 278 00:30:19,360 --> 00:30:25,280 out loud, I don't like people who wear natural hair. But maybe it's an implicit bias in you 279 00:30:25,280 --> 00:30:31,440 that if you're seeing someone because of how your brain processes things in a matter of milliseconds, 280 00:30:31,440 --> 00:30:37,040 if you're seeing someone with something other than a traditional hairstyle that you're used to seeing, 281 00:30:37,040 --> 00:30:44,640 you might think that that person is not as good as or smart as or as capable as, you know, 282 00:30:44,640 --> 00:30:49,280 something else that you would compare it to. So that's how bias can arise from a cultural 283 00:30:49,280 --> 00:30:56,240 perspective. And there's so many other examples. How can bias arise in a gender perspective? You 284 00:30:56,240 --> 00:31:01,760 know, there's the obvious, you know, we have the, you know, traditional male-female dynamics and, 285 00:31:01,760 --> 00:31:07,360 you know, the perception in most, in, you know, past instances, you know, come a long way in some 286 00:31:07,360 --> 00:31:14,320 respects. But the perception is that women aren't as capable, women aren't as smart, women are too 287 00:31:14,320 --> 00:31:22,240 emotional, right? But we also now have to think about gender in the context of all the new gender 288 00:31:22,240 --> 00:31:29,600 identifiers and the ways in which gender has expanded. So thinking about people who are non-binary 289 00:31:29,600 --> 00:31:36,560 or, you know, people who might be transgender, you know, this is a good time in our country's 290 00:31:36,560 --> 00:31:42,640 history and the world history and at this moment in time to really think about how's our thinking 291 00:31:42,640 --> 00:31:50,960 around gender evolved beyond traditional male and female, you know, categories of individuals. And 292 00:31:50,960 --> 00:31:58,480 are we showing and exercising any new biases based on all of the new and expanded gender 293 00:31:58,480 --> 00:32:06,720 identifications? Linguistic differences is another example that I see throughout mediation, you know. 294 00:32:06,720 --> 00:32:12,960 Do we favor those who speak the same language as us or who speak, quote, unquote, the king's English 295 00:32:12,960 --> 00:32:20,880 versus a, quote, unquote, broken English? Do we have bias against those who are not native English 296 00:32:20,880 --> 00:32:28,640 speakers or who have accents or really who have, you know, maybe they speak English perfectly fine 297 00:32:29,440 --> 00:32:35,600 within our definition of perfect English, right, quote, unquote. But maybe they have difficulty 298 00:32:35,600 --> 00:32:41,920 expressing themselves. Maybe they come from a cultural background where, you know, people for, 299 00:32:41,920 --> 00:32:47,760 you know, either side of the gender equation are not used to speaking up or used to sharing their 300 00:32:47,760 --> 00:32:55,920 feelings or used to getting emotional. For example, in some of my mediation, I might have the party 301 00:32:55,920 --> 00:33:02,880 on the other side, the plaintiff might be an individual, a male generally, who comes from a 302 00:33:02,880 --> 00:33:10,800 kind of more of a quote unquote machismo background. And so that person may not go to therapy or see 303 00:33:10,800 --> 00:33:16,560 the value in therapy. And the question becomes, are talking to someone about their feelings and 304 00:33:16,560 --> 00:33:21,520 their emotions? So the question becomes, and especially from the defense side, is, well, 305 00:33:21,520 --> 00:33:26,800 if they didn't talk to a therapist or if they have difficulty expressing the emotional impact that 306 00:33:26,800 --> 00:33:32,080 this has had on them, then they didn't suffer emotional distress. And the plaintiff's counsel 307 00:33:32,080 --> 00:33:37,040 is generally arguing in the reverse that no, no, just because this person has difficulty 308 00:33:37,040 --> 00:33:42,560 expressing it, or for whatever reasons chose not to go see a therapist or perhaps can't afford to 309 00:33:42,560 --> 00:33:47,920 see a therapist if they're in between jobs and no longer have insurance, that doesn't mean that they 310 00:33:47,920 --> 00:33:54,800 did not, you know, suffer quote unquote substantial emotional distress. And the way that they express 311 00:33:54,800 --> 00:34:00,800 their emotion and the impact that it's had on them may be rooted in how they were raised, 312 00:34:01,600 --> 00:34:07,520 you know, within their specific specific cultural, ethnic or national origin experience. 313 00:34:07,520 --> 00:34:12,160 So we definitely see bias and from the cultural perspective, a gender perspective, 314 00:34:12,160 --> 00:34:17,440 linguistic and so many others. And next slide, let's talk about a few of the others. 315 00:34:17,440 --> 00:34:25,440 Some of the other ways that we see biases in mediation is this perception that, you know, 316 00:34:25,440 --> 00:34:33,040 some, you know, are more intelligent based on their educational background or based on their 317 00:34:33,040 --> 00:34:40,640 ethnic background, and just based on their overall set of experience experiences. And if we see 318 00:34:40,640 --> 00:34:47,360 someone as less smart than us or less intellectual than us, or not as, you know, high of a pedigree 319 00:34:47,360 --> 00:34:53,600 in terms of their educational or law firm or associational background, then that feeds into 320 00:34:53,600 --> 00:34:59,520 how we engage in settlement discussions. If we see someone is being from a different 321 00:34:59,520 --> 00:35:05,600 socioeconomic background from us, particularly if it's a quote unquote lower social economic 322 00:35:06,240 --> 00:35:12,080 socioeconomic background, it feeds into our perceptions that maybe that person is not as 323 00:35:12,080 --> 00:35:17,600 deserving of a certain settlement or in the reverse, if someone comes from a quote unquote 324 00:35:17,600 --> 00:35:23,920 high bread socioeconomic background, it may cause a person to think differently about their values, 325 00:35:23,920 --> 00:35:29,600 that they only care about money, they don't care about people, that their character is questioned, 326 00:35:29,600 --> 00:35:35,200 right. So all of our perceptions, no matter where they may be on the spectrum, you know, 327 00:35:35,200 --> 00:35:40,160 depending on a person's background, their educational background, their socioeconomic 328 00:35:40,160 --> 00:35:47,440 status, it feeds into and I see it every day, into how we engage in mediation and another, 329 00:35:47,440 --> 00:35:53,600 you know, we're attorneys. And so we, you know, when we first get served with a lawsuit or engaged 330 00:35:53,600 --> 00:35:59,040 with opposing counsel or getting ready for mediation, the first thing we do is we look at 331 00:35:59,040 --> 00:36:03,520 that person's background on the state bar and their website, where did they go to school, 332 00:36:03,520 --> 00:36:08,640 what law firms that they work at, are those law firms considered prestigious, you know, 333 00:36:08,640 --> 00:36:14,240 did they pass the bar the first time, you know, all sorts of things that, you know, again, as 334 00:36:14,240 --> 00:36:19,920 lawyers, we're even trying to simplify through our brains, what kind of person and I am I dealing 335 00:36:19,920 --> 00:36:26,480 with on the other side, is that person as smart as me, is that person as capable of me and that 336 00:36:26,480 --> 00:36:33,840 plays into how we engage with that person through a mediator in the mediation process. 337 00:36:34,640 --> 00:36:40,080 And let me just give a few other examples of some of the things that I see every day in mediation. 338 00:36:40,080 --> 00:36:45,840 So I broke it down into three categories. I see biases with respect to mediators and 339 00:36:45,840 --> 00:36:52,320 neutrals themselves, with respect to attorneys, you know, opposing counsel, and with respect to 340 00:36:52,320 --> 00:36:58,880 the clients that attorneys represent. So as mediators, and again, some of these biases, 341 00:36:58,880 --> 00:37:05,120 you know, some are not good, right, especially if they're based on protected categories such as, 342 00:37:05,120 --> 00:37:11,680 you know, ethnicity, cultural background, gender background, etc. But some, you know, 343 00:37:11,680 --> 00:37:17,600 are their biases that are somewhat neutral, right, you know, but they impact how we might 344 00:37:17,600 --> 00:37:24,080 approach a mediation and how we might see a neutral. So one bias I see is, you know, the 345 00:37:24,080 --> 00:37:30,960 mediator, are they a former judge? Are they a former attorney litigator? And, you know, some 346 00:37:30,960 --> 00:37:37,840 attorneys, you know, that represent their clients have very, very strong thoughts about whether 347 00:37:37,840 --> 00:37:43,280 to pick a mediator based on whether they're a former judge or whether they're a former attorney. 348 00:37:43,280 --> 00:37:50,240 Some think that, you know, judges, you know, have the ability to say something and everybody will 349 00:37:50,240 --> 00:37:55,600 listen and they just strike the gavel and the deal gets done, right? But the problem and how 350 00:37:55,600 --> 00:38:01,040 that's connected to potential bias is that when we look at the bench or even when we look at the 351 00:38:01,040 --> 00:38:07,440 attorneys who ultimately become mediators, and we look at, you know, their ethnic backgrounds and 352 00:38:07,440 --> 00:38:15,520 the side, you know, the demographics of judges on the bench, right? If they happen to be majority 353 00:38:15,520 --> 00:38:21,280 white males and the majority of litigants out there are, you know, have a bias toward 354 00:38:22,080 --> 00:38:28,400 selecting former judges as mediators, then that means that the mediators that they select more 355 00:38:28,400 --> 00:38:35,520 often than not are going to be, you know, white male judges. And God bless them. Some of my best 356 00:38:35,520 --> 00:38:41,280 friends are white male judges and I have so much respect for not only them, but just the bench as 357 00:38:41,280 --> 00:38:47,440 a whole, right? We cannot do the work we do without amazing judges. And we have so many here in Los 358 00:38:47,440 --> 00:38:54,160 Angeles, in California, and Fairfuly Hills. But does it mean that the end result in mediation 359 00:38:54,160 --> 00:39:03,120 means that 95% of the neutrals who are selected as mediators are primarily white male? Because just 360 00:39:03,120 --> 00:39:07,680 the sheer thinking around the demographics and how they work, whether it's from, you know, 361 00:39:07,680 --> 00:39:14,560 former law firm environments, judicial environments, or other, right? So that's how bias can even creep 362 00:39:14,560 --> 00:39:21,520 into something like picking a mediator. Even with picking a mediator, there's the obvious, you know, 363 00:39:21,520 --> 00:39:28,400 potential biases based on cultural or ethnic or gender background. You may think that, you know, 364 00:39:28,400 --> 00:39:33,360 African American woman doesn't have the chance, you know, have the capabilities or the background 365 00:39:33,360 --> 00:39:38,560 or the experience or the sensitivities to take on a kind of bet the, that the bank, you know, 366 00:39:38,560 --> 00:39:46,800 kind of mediation or one with that's a multi-million dollar class action or an instance that's a case 367 00:39:46,800 --> 00:39:52,080 that's involved, you know, millions of dollars. So you may only pick that mediator, you know, for 368 00:39:52,080 --> 00:39:57,920 your quote unquote low value cases, or you may only pick them when there's another African American 369 00:39:57,920 --> 00:40:04,640 or person of color or woman or a disabled person, you know, the list goes on and on. You may only 370 00:40:04,640 --> 00:40:11,280 pick that person that you perceive to be, you know, othered when a case involves an othered, 371 00:40:11,280 --> 00:40:16,560 as opposed to just picking the best mediator for that particular case, you know, based on the 372 00:40:16,560 --> 00:40:22,000 subject matter of the case, based on the dollar value of the case and based on that person's 373 00:40:22,000 --> 00:40:28,000 background and experience before becoming a neutral. So there is definitely bias in terms of 374 00:40:29,600 --> 00:40:36,000 picking neutrals and mediations and then even engaging with neutrals and mediation. You know, 375 00:40:36,000 --> 00:40:40,560 if the person serving as your neutral, I mean, you would think you pick them. So you must have 376 00:40:40,560 --> 00:40:46,720 some level of respect for them. But even this is where implicit bias comes in, even in picking them 377 00:40:46,720 --> 00:40:52,560 or agreeing to that person as the neutral, if they fall into some other category that you have 378 00:40:52,560 --> 00:40:57,840 a bias toward, you in the course of the mediation may question what they're telling you, you may 379 00:40:57,840 --> 00:41:04,320 question whether they are grappling the facts and the law, you know, in a substantive intellectual 380 00:41:04,320 --> 00:41:09,440 way, if they really get it, right? Or if they're in the other room, you know, pushing the envelope 381 00:41:09,440 --> 00:41:15,360 with the other side, do they have that capability? And all of that comes in some instances from some 382 00:41:15,360 --> 00:41:21,680 very, very explicit biases that we have and other instances from implicit biases that we have. 383 00:41:27,040 --> 00:41:31,200 Also, I, for example, did the person when they were in practice, if they represent plaintiffs 384 00:41:31,200 --> 00:41:35,920 for defense, depending on which side you're on, you may have greater respect for them if they were 385 00:41:35,920 --> 00:41:40,080 on the plaintiff's bar or, you know, more respect for them if they were in the defense bar. But all 386 00:41:40,080 --> 00:41:45,920 of those things play a part in terms of how we engage our neutrals in the mediation process and 387 00:41:45,920 --> 00:41:52,800 the selection of neutrals for mediation. We also see biases, and I see it because I'm the person 388 00:41:52,800 --> 00:42:00,560 going between both rooms in a mediation, biases that attorneys have among each other. So again, 389 00:42:00,560 --> 00:42:05,440 you know, they may not, you know, the person may not be the neutral, but if they're the 390 00:42:05,440 --> 00:42:11,600 attorney on the other side, you know, there may be a disrespect for them or a questioning of how 391 00:42:11,600 --> 00:42:17,440 smart they are if they represent plaintiffs or if they, you know, represent defendants 392 00:42:18,800 --> 00:42:24,480 from law school or what their associations are, or did they pass the bar the first time? What type 393 00:42:24,480 --> 00:42:31,360 of school did they go to? Did they go to a top 10 or 20s? Did they go to another type of school? 394 00:42:31,360 --> 00:42:36,800 All of those things play in terms of how we see the attorneys that we're dealing with and engaging 395 00:42:36,800 --> 00:42:42,400 with. And it comes out in mediation. You would not believe some of the things that I hear sometimes. 396 00:42:42,400 --> 00:42:47,680 And again, that's where I go back and say, as the neutral, as you're seeing and hearing things in the 397 00:42:47,680 --> 00:42:55,040 mediation rooms, the breakout rooms that you know are rooted in some form of bias, whether it be 398 00:42:55,040 --> 00:43:00,960 implicit or explicit bias, then you're using that information not to make the parties feel bad, 399 00:43:00,960 --> 00:43:07,680 not to make the use of it to try to guide the conversation and guide it in a way that's more 400 00:43:07,680 --> 00:43:14,080 positive and that for purposes, helping to minimize the impact that all of the biases that are playing 401 00:43:14,080 --> 00:43:21,280 throughout the day have on that mediation process. I also see bias with respect to the clients in 402 00:43:21,280 --> 00:43:29,920 mediation, particularly in my line of work with plaintiffs, for example. A lot of times the plaintiff, 403 00:43:29,920 --> 00:43:35,440 you know, because employment law, you know, big part of employment law is based on discrimination, 404 00:43:35,440 --> 00:43:40,880 principles of discrimination. And the underlying issues are, you know, whether the person 405 00:43:41,600 --> 00:43:46,480 is a part of a protected category. And if there were any employment decisions, 406 00:43:46,480 --> 00:43:53,840 based on that person's protected category, right? So the individuals of color, individuals, you know, 407 00:43:53,840 --> 00:44:02,400 from gender backgrounds, individuals with different physical and mental capabilities that might result 408 00:44:02,400 --> 00:44:08,720 in a claim for disability discrimination, I see clients across, you know, the full gamut of what 409 00:44:08,720 --> 00:44:14,320 we consider protected categories. And we know here in California, compared to federal law and some 410 00:44:14,320 --> 00:44:19,600 other states, we have, I think now we're probably up to about 20 or so protected categories. So you 411 00:44:19,600 --> 00:44:25,920 can imagine in my medias, I'm seeing a full gamut of people and individuals who might be 412 00:44:25,920 --> 00:44:32,320 considered other. You know, might have some thoughts about a person is telling the truth 413 00:44:32,320 --> 00:44:40,560 based on their perceptions of or other background. There might be some questions about, you know, 414 00:44:40,560 --> 00:44:45,600 if that person's of a lower socioeconomic background, you know, if they deserve, 415 00:44:45,600 --> 00:44:50,480 quote unquote, a high value settlement, perhaps they were a minimum wage worker because of the 416 00:44:50,480 --> 00:44:55,040 industry that they work in, or their background, or their educational background, or experiences. 417 00:44:55,040 --> 00:45:00,240 And so there might be a perception that a high value, that person is not deserving 418 00:45:00,240 --> 00:45:05,520 of a high value settlement. So one of the things I hear sometimes is, you know, we're offering them, 419 00:45:05,520 --> 00:45:10,640 you know, one year salary, and perhaps that salary just based on their minimal age is $20,000 or 420 00:45:10,640 --> 00:45:16,080 something, right? And, you know, that's more than they would make, you know, at any time, right? 421 00:45:16,080 --> 00:45:19,600 And I've seen this a lot, plaintiffs' attorneys are saying, well, we're just, we're going to waive 422 00:45:19,600 --> 00:45:27,360 economic damages because the real impact here is the emotional impact that this case had on my client. 423 00:45:27,360 --> 00:45:33,600 And so we're focused, and, you know, when we talk about emotional impact and victim impact, 424 00:45:33,600 --> 00:45:38,080 you know, from the plaintiff's attorney's perspective, they're saying, you can't place a 425 00:45:38,080 --> 00:45:44,800 price tag on that. You know, you can't just devalue or minimize the person's experience 426 00:45:44,800 --> 00:45:50,960 and the impact it had on them because they were a lower wage or a minimum wage employee, 427 00:45:50,960 --> 00:45:57,920 or they came from a quote unquote low income socioeconomic background. So that type of bias 428 00:45:57,920 --> 00:46:03,600 plays out, and it plays in the reverse too, on the defense side, the defense attorney may be 429 00:46:03,600 --> 00:46:10,720 a big business employee, or a big box employer, an employer that's national or international. 430 00:46:10,720 --> 00:46:14,960 And so the perception on the other side is they have the money, they can pay it, 431 00:46:16,640 --> 00:46:23,680 a bunch of people. And you have to be careful, even in those instances, that, you know, defendants, 432 00:46:23,680 --> 00:46:27,520 even though they may be big, they may have the money, they may have all the resources in the 433 00:46:27,520 --> 00:46:32,480 world, in those instances, they're saying, you know, we're going to pay based on what we think 434 00:46:32,480 --> 00:46:38,880 the merits of the case are, and not just because we are a big box employer, so to speak. So those 435 00:46:38,880 --> 00:46:46,320 are some of the ways that biases come into play in mediation, both with respect to the 436 00:46:46,320 --> 00:46:52,560 neutrals themselves, the attorneys opposing each other, as well as with respect to the clients 437 00:46:52,560 --> 00:46:59,520 that you all represent and that I used to represent. So what are some strategies that we can use to 438 00:46:59,520 --> 00:47:07,440 start to recognize and eliminate bias in mediation? I've already touched on them, but I'll just re-emphasize 439 00:47:07,440 --> 00:47:13,440 it here. It really begins. And like I said, if I, if you don't get anything else out of today's 440 00:47:13,440 --> 00:47:20,480 presentation, it first comes with acknowledgement and awareness. We've got to acknowledge and 441 00:47:20,480 --> 00:47:27,040 be comfortable with the fact that we all have biases. It's a part of our DNA, it's who we are 442 00:47:27,040 --> 00:47:34,640 as humans. Some of our biases are not so bad or kind of innocent, but some have a real impact on 443 00:47:34,640 --> 00:47:41,120 the work we do, how we engage with others, and it definitely has an impact in our mediation, 444 00:47:41,120 --> 00:47:48,000 in the success and the outcome outcomes of our mediation, mediation. So it starts with acknowledgement, 445 00:47:48,000 --> 00:47:53,600 awareness, and I say to you, it just doesn't end there like, I'm biased, you know, I have issues, 446 00:47:53,600 --> 00:47:58,960 so is life, right? But that you, if you really, really, really want to be a better person in this 447 00:47:58,960 --> 00:48:04,960 regard, and you got to take the next step, even past today, even past your firm's traditional 448 00:48:04,960 --> 00:48:10,640 one or two hour, you know, bias elimination training each year and start to educate yourself, 449 00:48:10,640 --> 00:48:16,800 start to engage in a way with others that says, you know what, I want to do better in this regard. 450 00:48:16,800 --> 00:48:22,960 I really want to get to know other people, pass what my brain immediately sees. I really want 451 00:48:22,960 --> 00:48:28,480 to start to deal away with some of these issues I have. Not one is good for you as a person, 452 00:48:29,120 --> 00:48:35,120 but it also impacts the way in which you represent your clients, it impacts getting the best outcomes 453 00:48:35,120 --> 00:48:40,320 for your clients. And then if you're a neutral, it does certainly helps you to be a better neutral, 454 00:48:40,320 --> 00:48:46,000 so that you're creating a process like Maya Angelou said, where everyone walks away, 455 00:48:46,000 --> 00:48:51,840 you know, feeling hurt and respected, people remember how we made them feel. Not what we said, 456 00:48:51,840 --> 00:48:56,880 not even the settlement that we got them, right, or help them to get, but they remember 457 00:48:56,880 --> 00:49:05,200 how we made them feel. So education, acknowledgement, awareness, and education. And then in acknowledging, 458 00:49:05,200 --> 00:49:12,000 in educating, we start to do away with some of our biases through avoiding assumptions and 459 00:49:12,000 --> 00:49:18,080 thinking twice when we see people that we traditionally may have put into other categories 460 00:49:18,080 --> 00:49:25,920 in the past. And we start to build relationships across the aisle that are based on true, 461 00:49:27,600 --> 00:49:33,840 you know, looking at the individual as an individual and not looking at them as one group of people 462 00:49:33,840 --> 00:49:38,080 that are individuals that we may have stereotyped in the past. We should also 463 00:49:39,360 --> 00:49:45,920 learn to empathize more, and that means placing ourselves in other's shoes. And so one of the 464 00:49:45,920 --> 00:49:52,240 things I do pre-mediation calls in my mediation, and one of the things that, one of the questions 465 00:49:52,240 --> 00:49:57,520 that I would ask, and it's, you know, specifically designed to get to this, you know, empathy component 466 00:49:57,520 --> 00:50:05,200 of eliminating bias and how we think is, you know, have you thought about the other side and how 467 00:50:05,200 --> 00:50:11,440 they're going to argue the case? Have you thought about how the plaintiff might perceive what happened 468 00:50:11,440 --> 00:50:17,040 to them or how the plaintiff believes it may have impacted them? And I'll ask the plaintiff's counsel 469 00:50:17,040 --> 00:50:21,360 the same question in the reverse as it relates to the defendant and the employer, because the 470 00:50:21,360 --> 00:50:26,320 employer deserves to be heard as well, right? It's not just the O1 Way Street, it's the two-way 471 00:50:26,320 --> 00:50:33,440 street and a two-way dialogue. So developing empathy as litigators, as a former litigator, 472 00:50:33,440 --> 00:50:39,520 we come in, you know, guns blazing, constantly, you know, wanting to advocate and to fight and go full 473 00:50:39,520 --> 00:50:44,800 force, right? And just arguing even throughout the mediation process, never taking off that heart 474 00:50:44,800 --> 00:50:50,960 litigation hat. And it's important to take a step back from that. It doesn't mean you're not zealously 475 00:50:50,960 --> 00:50:57,200 representing your client. It doesn't mean you've kind of led up on, you know, that representation 476 00:50:57,200 --> 00:51:02,880 or that you're weak in some regard. But taking a step back and encouraging your client to do the same, 477 00:51:02,880 --> 00:51:10,560 to just think about, even just for a moment, how the other side may be thinking and what the impact 478 00:51:10,560 --> 00:51:17,040 of this on the other side, the emotional impact, the business impact, that level of empathy, 479 00:51:18,080 --> 00:51:24,240 allows us to start to, you know, put a human face on more of these situations and not just see it as 480 00:51:24,240 --> 00:51:29,280 the next case that we're litigating or the next case that we are mediating as neutrals. 481 00:51:29,280 --> 00:51:34,720 And then listening actively, you know, that goes without saying, you know, whether it be in mediation 482 00:51:34,720 --> 00:51:39,920 or just other environments, personal environments, family environments, you know, at work with other 483 00:51:39,920 --> 00:51:48,000 colleagues, you know, listening, listening not to be heard or to immediately speak, but listening 484 00:51:48,000 --> 00:51:55,840 to hear and to hear what the other side is saying. When we stop and we really, really listen, it has 485 00:51:55,840 --> 00:52:02,080 a way of helping us to see behind, you know, whatever our traditional biases or perceptions of the 486 00:52:02,080 --> 00:52:08,240 other person on the other side and really seeing them for who they are. And that is a great step 487 00:52:08,240 --> 00:52:16,160 toward eliminating any bias that we may have with respect to or against the person or persons on 488 00:52:16,160 --> 00:52:21,360 the other side. And then as mediators, you know, one of the things we want to do is encourage 489 00:52:21,360 --> 00:52:27,920 open dialogue. Granted, in California, most of our mediations are caucus style. The other side, you 490 00:52:27,920 --> 00:52:33,360 know, the two or more sides are not engaging with one another, but it's up to that mediator 491 00:52:34,640 --> 00:52:42,400 as she, he or they are in the room with either side to kind of express things and to share things 492 00:52:42,400 --> 00:52:47,680 from the perspective of the other side, not to distance the room that you're in, but to help 493 00:52:47,680 --> 00:52:53,680 that room to just see that there is another perspective here. There's another set of conversations 494 00:52:53,680 --> 00:52:56,960 to hear, making that feel that when you're in a room with the other side that you're doing the same 495 00:52:56,960 --> 00:53:02,960 thing on their behalf. Okay. Other strategies, periodic self-assessment, you know, this is a 496 00:53:02,960 --> 00:53:08,640 lifelong learning thing. We never get rid of our biases, you know, made if we're lucky, some of the 497 00:53:08,640 --> 00:53:15,200 biases we have, they start to minimize. Sometimes, you know, we get better at managing them. But, 498 00:53:15,200 --> 00:53:22,000 you know, our entire lives, we are dealing with the individual biases that we have and the impact 499 00:53:22,000 --> 00:53:28,560 that those biases have on our work. So as you're becoming more self-aware, you also have to be 500 00:53:28,560 --> 00:53:34,400 willing, you know, like we do in the work environment, annual reviews, annual assessments, we have to 501 00:53:34,400 --> 00:53:39,280 be willing to have that, you know, periodic self-assessment with ourselves, that dialogue with 502 00:53:39,280 --> 00:53:46,560 ourselves, you know, am I getting better? Or am I allowing my lifelong list of potential biases 503 00:53:46,560 --> 00:53:52,960 to still shape how I see the world and how I engage with the world? We have to be flexible. We have 504 00:53:52,960 --> 00:53:58,480 to realize that, you know, we all come to think against the opposing counsel that we are engaging 505 00:53:58,480 --> 00:54:04,480 with. We don't have, you know, issues and we're all dealing with the impact of life and COVID and 506 00:54:04,480 --> 00:54:10,560 the pandemic and so forth. So being flexible and understanding and seeing the world from a different 507 00:54:10,560 --> 00:54:16,160 perspective and then seeking feedback, you know, perhaps you have a trusted, you know, friend or 508 00:54:16,160 --> 00:54:21,920 colleague that you can really be open and honest with, especially if that person is one of the, 509 00:54:21,920 --> 00:54:28,480 in one of the other categories that perhaps you, you have some challenges in and asking them, 510 00:54:28,480 --> 00:54:32,560 you know, what can I do better? What are your thoughts about? I said this, what are your thoughts 511 00:54:32,560 --> 00:54:38,560 about that? And, you know, seeking that feedback and accepting it, you know, for what it is and then 512 00:54:39,360 --> 00:54:44,480 internalizing it in a way that doesn't make you feel worse about yourself, but makes you want to 513 00:54:44,480 --> 00:54:51,760 work on that and to determine ways in which you can engage better and kind of be a better listener, 514 00:54:51,760 --> 00:54:57,920 a better person that has more empathy and a person that sees humanity and the work that we do. 515 00:54:57,920 --> 00:55:07,680 And how do we work around the biases of others? How do we do one thing to recognize our own biases, 516 00:55:07,680 --> 00:55:13,040 but when we see biases in others, what are some techniques for working around that? Again, I think 517 00:55:13,040 --> 00:55:18,640 this is probably most important in the mediation context. And if you are actually a mediator or 518 00:55:18,640 --> 00:55:24,320 a neutral helping to facilitate a mediated process. So if you're visiting, there'd be through 519 00:55:24,320 --> 00:55:30,800 counsel or their clients or individuals participating in the mediation process. The first thing, 520 00:55:30,800 --> 00:55:35,920 again, you don't want to confront make upset the apple cart, make everybody feel bad. It's like, 521 00:55:35,920 --> 00:55:42,880 you're racist. I'm ending this mediation, right? That does not serve anyone, right? So we want to 522 00:55:42,880 --> 00:55:49,200 take it in as mediators and neutrals and, you know, want to take note of it and then start to think 523 00:55:49,200 --> 00:55:56,160 about how we can redirect the focus, you know, based on the hardcore facts, the legal issues, 524 00:55:56,160 --> 00:56:02,720 and the theories to get the proceedings back on track. And we may want to think about questions, 525 00:56:02,720 --> 00:56:07,680 you know, if someone's like, you know, clearly they may have a bias toward, you know, women or 526 00:56:07,680 --> 00:56:12,560 disabled people or what have you, you know, maybe you can come up with a set of questions of, you 527 00:56:12,560 --> 00:56:17,760 know, well, what makes you, you know, I hear you. And, you know, I want to understand as your 528 00:56:17,760 --> 00:56:23,200 mediator so I can better, you know, present your case and your perspective in the other room. 529 00:56:23,200 --> 00:56:27,840 I want to understand your thinking behind that, you know, why do you think that or how do you 530 00:56:27,840 --> 00:56:31,280 think the other side would think about that? Or how do you think the plaintiff would think about 531 00:56:31,280 --> 00:56:37,280 that or the defendant, right? So you come up with a, you know, set of non-confrontational but 532 00:56:37,280 --> 00:56:45,040 guiding and critical questions to help guide the process in a positive, a more positive direction, 533 00:56:45,040 --> 00:56:52,240 but also allows you to kind of have that person maybe think about, even if it's in an indirect way, 534 00:56:52,240 --> 00:56:57,920 what they just said or a perspective that they may have that is rooted in bias that's ultimately 535 00:56:57,920 --> 00:57:04,400 impacting the process. Secondly, it's so important to build report and trust with the parties. 536 00:57:04,400 --> 00:57:09,600 That starts before the mediation. Again, I think the pre-mediation calls are so important because 537 00:57:09,600 --> 00:57:13,920 that's where you start to build trust and rapport with the attorneys, especially if you haven't 538 00:57:13,920 --> 00:57:20,000 worked with them before. And you want them to out the gate to see you as neutral, as someone who's 539 00:57:20,000 --> 00:57:26,160 respectful and someone who's really going to work hard to see, to hear all sides of the story, 540 00:57:26,160 --> 00:57:32,080 the legal issues and theories and use that information to try to guide a positive process 541 00:57:32,080 --> 00:57:37,920 that ultimately leads to a positive outcome. But again, a process where everyone walks away, 542 00:57:37,920 --> 00:57:44,000 whether it case settles or doesn't settle, feeling that the process itself was respectful, it was a 543 00:57:44,000 --> 00:57:49,520 good process and they felt like the mediator hurt them and was fair and transparent and 544 00:57:50,240 --> 00:57:57,600 equally leaned in all the parties and all the counsel involved. And then finally, 545 00:57:59,200 --> 00:58:05,360 under all circumstances, as the neutral, as the mediator, you never want to compromise 546 00:58:05,360 --> 00:58:12,480 your impartiality or your neutrality. Even if you're feeling personally attacked by any party, 547 00:58:12,480 --> 00:58:19,760 based on some bias that you think they may have of you, you never want to wear that on your shoulders. 548 00:58:19,760 --> 00:58:27,040 You never want to let that come into the process because once your neutrality, your impartiality 549 00:58:27,040 --> 00:58:34,080 is compromised, then it probably impacts your ability to continue to try to help guide the parties 550 00:58:34,080 --> 00:58:41,360 to resolution or at least to a process that they all walk away feeling it was a respectful process, 551 00:58:41,360 --> 00:58:48,160 it was a trusted process. Now, does that mean you as a neutral just sit and receive personal attacks? 552 00:58:49,040 --> 00:58:56,400 No, it doesn't, right? No one, even as neutrals, even as individuals who are supposed to be impartial, 553 00:58:56,400 --> 00:59:01,360 no, it doesn't mean we should just sit and accept personal attacks, particularly those that are rooted 554 00:59:01,360 --> 00:59:06,720 in bias. But maybe it means, you know, if it's the attorney or even their client, maybe we pull 555 00:59:06,720 --> 00:59:12,400 them into a separate room or have a sidebar, a dialogue with them to say, you know, what you 556 00:59:12,400 --> 00:59:18,400 just said or what your client just said, you know, really did not, you know, make me feel comfortable 557 00:59:18,400 --> 00:59:24,480 or respected. And I would just ask that, you know, we dial down those kind of personal attacks or 558 00:59:24,480 --> 00:59:29,440 those kind of personal perceptions so that we can focus on getting to the issues that hard. 559 00:59:29,440 --> 00:59:35,120 Or maybe you don't even have that sidebar and you go back to what I suggested in box one here, 560 00:59:35,120 --> 00:59:40,320 is you kind of breathe, you take it, take it in for, you know, for what it's work, you manage your 561 00:59:40,320 --> 00:59:47,920 own emotions in that process. And then you look for ways to engage in a positive, more forward 562 00:59:47,920 --> 00:59:55,840 thinking way and to ask questions that maybe causes that person to think about the error of their own 563 00:59:55,840 --> 01:00:00,960 ways and to think about what they said. And I've seen so many times where individuals, whether 564 01:00:00,960 --> 01:00:06,160 it be attorneys or their clients, will apologize when they realize that they have offended the neutral 565 01:00:06,160 --> 01:00:13,040 or says something that it hurt in the other room could be offensive and perceived as, as biased 566 01:00:13,040 --> 01:00:20,080 behavior. But it's so important that the neutral, even when others around you as a neutral are 567 01:00:20,080 --> 01:00:24,560 losing their cool, becoming frustrated per se, perhaps saying things that are off color or 568 01:00:24,560 --> 01:00:30,240 inappropriate, it's important to manage that, not just to take it, of course, you know, I'm not 569 01:00:30,240 --> 01:00:36,320 suggesting that at all, but to take a step back to breathe and to figure out how to best manage 570 01:00:36,320 --> 01:00:41,840 that. So you maintain your impartiality, you maintain your neutrality, and you're able, if it's 571 01:00:41,840 --> 01:00:49,280 appropriate, to keep the proceedings moving in a positive direction. So that's my presentation 572 01:00:49,280 --> 01:00:56,080 today. And again, we can go to the last slide. I'd like to just thank you all so much for 573 01:00:56,080 --> 01:01:02,720 participating in this inaugural mediation certification training for the Beverly Hills Bar Association. 574 01:01:02,720 --> 01:01:08,560 I'd like to thank you, Beverly Hills Bar Association, for inviting me to be a part of this 575 01:01:08,560 --> 01:01:17,680 inaugural class of litigants and potential future neutrals. And I just, you know, want to encourage 576 01:01:17,680 --> 01:01:24,800 you all, whether you are a neutral thinking about becoming a neutral or a litigant, and just taking 577 01:01:24,800 --> 01:01:30,240 this course so you, you know, start to understand how mediation works and how neutrals think and 578 01:01:30,240 --> 01:01:36,560 some of the theories behind mediation to take these skills and tools with you, and really to be an 579 01:01:36,560 --> 01:01:44,000 ambassador, you know, in our profession, as lawyers, as mediators, as neutrals, of, you know, really 580 01:01:44,000 --> 01:01:50,960 being an ambassador and a committee of one to start to encourage folks to, and ourselves, looking 581 01:01:50,960 --> 01:01:58,160 inwardly first to, you know, really dial down on the biases that we see in our profession. It impacts 582 01:01:58,160 --> 01:02:04,000 the outcomes of our mediation, it impacts the outcomes of our cases, and it really, you know, 583 01:02:04,000 --> 01:02:11,760 makes for a less fulfilling life as an attorney, as a mediator, as a neutral. And so even just, 584 01:02:11,760 --> 01:02:17,440 you know, taking these concepts in just for ourselves personally, you know, makes a difference in 585 01:02:17,440 --> 01:02:23,440 terms of our enjoyment and our fulfillment in this profession. So thank you again. I hope this has 586 01:02:23,440 --> 01:02:29,520 been helpful. And I welcome you to reach out to me if you'd like to continue this discussion or if I 587 01:02:29,520 --> 01:02:35,600 can be helpful to you in any way or any of your cases. Have a great day, folks. Wherever you are, 588 01:02:35,600 --> 01:02:41,520 at what time you're looking at this, have a great day and a successful career as a mediator, 589 01:02:41,520 --> 01:02:44,960 a neutral artist, continuing being the great advocate that you are.