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today.
Welcome to the audio edition of BHBA's Mediation Training. In this episode, your host, Angela
Reddick, right of signature resolution will guide you through navigating differences and
avoiding bias. Let's dive in.
Hello, everyone, and welcome to the Beverly Hills Bar Association's Mediation Certification
Program. The course within that program on bias and implicit bias and how we might manage
that within the mediation world.
My specific title today is Navigating Differences and Avoiding Bias, a Guide for Mediators.
My name is Angela Reddick-Rite, and I am a mediator with Signature Resolution, and I'm
so privileged and excited to be here.
And thank you to the Beverly Hills Bar Association for inviting me to be a part of, to be one
of the instructors in your inaugural Mediation Certification Program. I think it's wonderful
that the Beverly Hills Bar Association has started its own certification program, and
I'm grateful to be a part of it, which gives an overview of my background and experience.
And again, I just, hopefully you'll see from the work that I've done in practicing for
28 years and now full-time as a mediator for the last four years that my insights and experience
that I will bring to the table today, hopefully is invaluable to you and helps you as you
navigate and begin your path as mediators or continue your path as mediators, or think
about, you know, whether you actually want to enter the mediation field.
First let me begin by giving you an overview of what to expect in today's session. And
I would just like to begin again by saying what an exciting journey for those of you
who are embarking on your path to becoming mediators or considering it. And even if you're
not thinking about becoming a mediator, I'm hopeful that today that the insights and skills
that you gain, not just from today's session, but overall in the sessions that are part
of the certification program, that you will gain skills and insights that not only help
you if you're considering a path as a mediator or have already embarked on that path, but
that it assists you with wherever you are in your law practice. I know as attorneys,
we are hired as advocates and with the expectation that we will zealously represent the interests
of our clients. And although it seems counterintuitive and it seems to go against our training as
attorneys and against the zealous mindset, what I find now as a full-time mediator that
it is really helpful that even when we are advocates that we get some training and some
insights around the theories and what goes into making a mediation successful. Because
even as advocates, it helps us to understand what the process is about and how best to
represent our clients in a mediation setting. And it also helps to reframe our thinking
as advocates. I'm a former advocate and, you know, represented clients for many, many years
in employment matters on both sides of the aisle. But there's a natural instinct when
we approach mediation as advocates to kind of keep our litigation hat on or to keep our
advocate hat on. And to forget that mediation in the process of mediation is that one opportunity
or continued opportunity for us to focus on what resolution looks like as opposed to continuing
forward with an aggressive litigation or transactional strategy. So I invite you in this one hour
that we have together and as you're going through the certification training to kind
of take off your zealous advocate hat, put yourself in the body of a mediator or in the
room of an actual mediation process and think about how even as an advocate, you can embrace
the concepts of dispute resolution and conflict resolution and use that whether you're mediating
or not or serving as a mediator or not to help better serve your clients. And so our
goal today in this session is to focus specifically on bias in mediation, how bias arises in mediation
and how we, you know, as mediators, as advocates representing clients, how we can better identify
our own biases, manage those in the process and in managing it, use it to achieve better
outcomes in the mediation process. So why is this topic of bias management in mediation
important? Specifically in the context of mediation, I'm sure that many who are participating
in today and in this certification training have probably set through, you know, dozens,
if not more classes on bias, implicit bias, microaggressions. In fact, thank you to the
Beverly Hills Bar Association. My colleague, former judge Helene Dandedina and I a few
months ago in 2024 had the opportunity to present a session on microaggressions in the
practice of law. So I'm sure many of you have set through many trainings like that and hopefully
they've been helpful and helped to advance your thinking around these issues. But today
we're going to focus specifically on bias in the context of mediation. And it's important
because bias, believe it or not, specifically in a mediation, it can affect our judgment,
it can affect our decision making, how we advise our clients on achieving resolution,
and it could lead to unfair outcomes as well as dissatisfaction with the process, the attorneys,
the litigants and the neutral. And one of the worst feelings as a mediator who I really
take my cases to heart and really, you know, work hard to give them my all and to own the
cases in a way as, you know, so that the parties know that I'm not just hired as your, your
hired guns, so to speak, your paid mediator to get your cases settled. But I take on each
case in a way that, you know, hopefully suggests to the parties that this case is important
to me, the outcome is important to me. And that, you know, is a great undertaking because
when parties or litigants or attorneys are dissatisfied with the process, we as neutrals,
believe it or not, really take it to heart. And so one of the things that I seek to achieve
in my mediations is not just great outcomes with respect to settlement or helping parties
to move their process along, even if it doesn't yield in settlement. But I think on the words
of someone that I have admired over the years, and that's a famed author and poet Maya Angelou,
may she rest in peace. She once said that I've learned that people will forget what
you said, people will forget what you did, but people will never forget how you made them feel.
So understanding bias and the impact on how it makes people feel throughout the process, does it,
you know, do we make people feel respected in the process? That goes to the heart of not just
settlement and those kind of, you know, positive outcomes from a member's perspective, but it goes
to the heart of how people feel about the process overall. And so if attorney, even when cases settle
and attorneys or their clients walking, walk away distrusting the process or feeling dissatisfied
with the process or feeling disrespected throughout the process, that I would submit to you is not
a successful mediation because the goal also is not just to have a positive settlement,
member's outcome, but the goal is to create a process and to help facilitate a process
where everyone feels heard, everyone feels respected, and everyone feels that it was a fair
process. So understanding bias is critical to not only the member's outcome, but it's also critical
to achieving success in terms of satisfaction and trust in the overall mediation process. And we
know we live in a climate right now where there's a lot of distress in, you know, mediation and
mediators even. And so I think we all have to join together, start to embrace some principles
that will allow us to create a greater and a better process for our clients, who are the
attorneys and the clients that they represent. So it's a critically important topic, bias and
mediation. So let's understand bias and mediation, you know, specifically, I call this a focus on
the basics, right? What is the definition of bias? So first, before I provide you that,
that definition, first want to say we all have biases, you know, some see the bias word or the
B word as negative. And in, you know, many instances, it does have negative connotations. But, you know,
the reality is that we all have bias. And why is that, you know, some of us in our trainings,
we've seen probably seeing a picture of kind of a person's head. It's a cartoon picture,
or illustrated picture of a person's head and their brain. And it shows that in our brains that
our brains move, the waves in our brains move at many, many milliseconds per minute, right? And
I'm not a scientist or psychologist. So our doctors, so I hesitate to go into too much detail
here. But the general principle that I think many of us have learned, or all of us have learned,
is that our brain is constantly moving and processing information. And it processes,
you know, what we think, how we think, what we perceive to be good or bad. And it helps us to
think through, looking through things through a lens and processes for us, what we should think,
and how we should think about it. And, you know, how does this happen? Again, I'm not a brain
expert or a psychologist, but it happens from when we are in the womb, our mother's womb,
perhaps this is the things that our parents say to us while we're in the womb, or the things we
overhear while we're in our mother's wombs. But for sure, after we're born, our biases and how
we think about the world and see the world is shaped, you know, from the environment that we
are in, from our family environments to our cultural and religious environments and other societal
influences. And from the time that we are infants coming out the womb, all the way up until this
point in our lives, our brains are constantly receiving information, processing that information,
and helping us to decide in broad terms, this is good. You should think when you see this,
when you touch this, when you feel this, when you see this kind of person, you should automatically
see that person or that thing as good. But this thing over here, this is bad. Don't touch it.
When you see a person that looks this way, thinks this way, presents in a certain way,
think of them as bad. And it's our way, because so much is going on in our brain,
it's our brain's way of helping us in a positive way to simplify things and to be able to see
things and quickly process things. But in a bad way, it simplifies our thinking so much in some
instances that it causes us to have biases against others and in certain situations that aren't
necessarily based on merit or based on any proven, you know, statistics or information about a
certain group or a certain individual based on how they present. So we all have biases because
our brains, for the most part, and I know, you know, there are different, you know, medical issues
and diagnoses and so forth. But, you know, our brains generally process things in a way to help
try to simplify how we think about things and how we process things. So that naturally leads to bias.
Okay, so the first thing, if you don't walk away with anything else today, I want you to understand
that we all have the big B, we all have biases, some good, some not so good, and it's the process
of identifying those and owning those that are not so good, those biases, that we start to grow
and to evolve as individuals, as professionals, as mediators, as attorneys, and all the other
hats that we wear. So what is bias? Webster Dictionary simply defines it as an inclination of a
temperament or an outlook. Like, it means that we are inclined based on how we've been socially
engineered to see things in a certain way and to process things in a certain way. And it sometimes
leads to personal and unreasoned judgment, which can lead to bias, prejudice, and all the things
associated with those not so great words. There are two types of bias generally. There is conscious
or explicit bias, and conscious, and there's also unconscious or also known as implicit bias.
Conscious or explicit bias is based on the beliefs and attitudes that we have about a person or a
group. We're very conscious about it. We know we feel this way about a certain group. Nobody can
tell us anything otherwise. And primarily, not because those persons or those groups may be good
or bad, but because of how we've been engineered to think about a certain group, we automatically,
consciously and explicitly think of them in a certain way. So for example, depending on our
political affiliations, and I know talking about politics and misclimate, it's not necessarily a
safe bet, but just for purposes of example, if you've been raised as a Democrat, your parents were
Democrats and their parents, and you're very active in the political discussions and wired
toward what might be considered a more liberal or progressive way of thinking, then you're thinking,
you know, Democrats are good and Republicans are bad. And independents are crazies, right? These
are kind of the general assumptions that one might put on a group. All Republicans are good and all
Democrats are bad and independents are crazy because they haven't picked one side or the other.
Of course, we have good and bad apples on both in all sides of the aisle in the equation. So
none of those general statements that we may make, whether it be about political affiliation,
race, gender or any other category, none of those general assumptions that we make,
tend to be true because we have good people, bad people, good apples, bad apples on all sides of
the equation, no matter what we're talking about. But because we may have been raised in a certain
way and raised to only see the world through a certain lens, that could lead to a very conscious
and explicit bias that we have about certain individuals and certain groups of people. Now,
what is unconscious bias or implicit bias? It is the unconscious attitude or stereotype that we may
have that may not knowingly have that shapes our understanding, our actions and our decisions as
it relates to certain people, individuals, groups or our situation and situations. And our unconscious
bias is developed over time based on what we've been wired to think, based again on how we've been
socially engineered. Now, for example, if you are the hiring manager or participating in a hiring
process within your law firm or organization, you may unconsciously favor individuals who went to
your same undergrad or who went to your same law school, right? Again, not bad, but because they
are associated with you and share an interest or a background, that you can look at that application
and you're like, hmm, you know, my same alma mater. I know even in my mediation, when I look at the
backgrounds of the attorneys and I see we worked at the same law firm at some point or well, no,
that's not a good example. But I see if we attended the same school or participate in some of the same
organizations, it's not making me favor them more. But I recognize something that we have in common.
And so in the mediation, I may bring up, I see we went to the same law school, what was your
experience like? And I use it as a way to build connection that and are their client in the
mediation. So we have implicit biases that go with us, you know, even when we're not thinking about
it or thinking that we're being biased. Another example in the hiring process, we may be socially
engineered to think that individuals by their name, so for example, if they have more of a
traditional American pie type of name or sounding name, such as Ashley, Mary, or John, or Steve,
then, you know, we may naturally just think, oh, that that person is, you know, obviously
a great provide. And you might, you know, push their resume to the top of the pile compared to
someone who may have more of a culturally, you know, specific culturally or ethnic identifying.
So it may cause us to question whether based on the person's name, surname or first name,
whether they have the capabilities to work within your organization, whether they're good at what
they do, whether they are as, you know, smart or capable as a person, you know, with more of a
traditional American pie type sounding name. And so those implicit biases carry with us, even, you
know, when we're not conscious of them, and even when we think that the decisions we're making
really don't have an impact, but they really do. So another example we see in the orchestra world
that meaning at one point it was the statistics shown that the majority of people who auditioned for
orchestras and were ultimately picked were men. And so that most of the symphonies and orchestras,
you know, the well regarded symphonies and orchestras throughout the world and throughout
our country here in the US primarily had male players and musicians. So does that mean male or
male players or musicians are more talented than female or other or their players or musicians?
No, it does not. But there were implicit biases that NACC that kept carried on for generations
to where the male musicians would be selected more often than the female or the other or their
musicians. So now most well regarded orchestras and symphonies around the country have gone to blind
auditions in order to begin the process of eliminating that gender bias. So the point is we all have
biases, we're all guilty of the big B. Some of our biases are conscious based on how we've been wired,
and some are unconscious also based on how we've been wired. All of how we identify those and how
we begin to tackle some of our own biases specifically in the mediation context. Impact of
biases in the mediation process. So I've already touched on this, but our biases specifically
in mediation can impede resolution, you know, if there's a lack of respect or perceived lack of
respect or distrust in the process, it may hamper the party's ability to in their attorneys to hear
the mediator to believe that the mediator is really delivering truthful and honest and transparent
information. It may impact settlement value. We may, I'm going to talk about this in just a few
minutes, but we may think that the other person on the other side doesn't deserve a high value
settlement because of their ethnic background or their gender background or their socioeconomic
status. It may impact the perceived fairness of the settlement. Did this mediator, you know, I
as an African American woman, if I'm in a mediation where the plaintiff perhaps is another African
American, is my being African American, is the perception that I'm really pushing and advocating
or although I'm neutral officially, right, that I person in the other room looks like me. So if
there's a perception that even when you represent another category that you can't be fair or neutral
or that you may have a bias against someone in another other category, then that can impact
the perceived fairness of a settlement. And then again, it leads to frustration of the parties
and distrust of the process and of the neutral. And I tell you as someone who does this date in
and out and who really cares about not just the settlement value or outcome of mediations,
but I really care about how people leave, how they feel about the process and their feeling
that they got a fair shake, that they were heard, that they were listened to, and that they were
respected in that whatever protected category that they may fall in, that that was not held
against them, but that their that protected category actually brought value to the mediation and that
even the mediator based on her, his, or their other background and experiences that that too
will bring insights to the mediation that are valuable and appreciated as a part of the process.
So how do we identify our biases? I've already touched on this, but the big thing is to realize
that we all have biases because of how our brains work, right? And the influences that make us who
we are. So we all have them. And the first step to, you know, resolving a problem or solving a
problem is being aware and owning it and acknowledging it and acknowledging it in a way where you
start to personalize it and say, you know what, and you may not voice it to anyone else, right?
But you start to say to yourself, you know, I recognize that I have leanings this way.
And sometimes those leanings and those perspectives aren't good and they don't make me feel a good
about who I am or how I see the world or how I engage with others that may be in an other
category that I may have some bias toward. So when we start to be self aware, then and make the
decision to own it and to begin to work on it, that is the very first step and probably the most
important step to identifying our biases. And then of course, once we identify them,
we want to participate in opportunities to learn more about those biases and how to manage them,
whether it be through training classes or exercises. I've also seen something start to arise in our
culture where, you know, people across ethnic backgrounds, religious backgrounds, are hosting
things like small dinners and other opportunities, hikes, to start to get to know each other in a way
that's beyond just what we see and start to build relationships across whatever device that there
may be. And that is so powerful because in those instances, it allows you to be transparent and
honest, but in a way to where it's well received on the other side, the other side has a chance to
share, you know, kind of their perspective on how you may be thinking and in the reverse as well.
And that dialogue starts to break down barriers, starts to break down divides, and starts to help
us see each other really as fellow humans and not as others that are so different from me
that I could never have a real conversation or real dialogue with them. So finding ways,
whether it be in your company or law firms or organizations, annual training classes,
but I invite you to our the Bar Association classes, even this one, after this one hour, I invite you
to and encourage you to go and look for opportunities, other opportunities to really start to hone in
on your own biases and how to more effectively manage those and actually start to minimize,
look for books, look for resources where you could start to educate yourself and own your own learning
in this regard. And then, you know, once we are able to look inwardly and to think about where we
personally may have some pitfalls in terms of how we see others and how we see the world,
it better equates us to start to learn how to recognize it in our mediations and how to recognize it
when the attorney's involved in representing their clients in mediation, where they their perspectives
may be based on some biases, not for the purposes of pointing fingers, but kind of tuning into it.
And as the mediator using that to see if you can help navigate, not become upset, not confrontational,
not make them feel bad and, you know, call them on the carpet, so to speak, but you can use that
insight and information and what you're seeing in the process to help ask questions, to help start to
help start to present ideas and options that start to minimize the impact of what some of those biases
may be, whether it be from the attorneys or the litigants that they represent or that you all
represent. And then identifying our biases also helps us to understand what biases individuals,
litigants, attorneys may have against us as neutrals and how that is impacting the process.
And I definitely want to talk about that more. What are some common biases that we see in mediation?
We see cultural biases. We see gender biases, linguistic biases, and so many others. The list
can go on and on. But with respect to cultural culture, this means that we may have biases
against individuals from a certain background or culture or ethnic experience. So, for example,
if someone at a mediation, whether it be a party or the other opposing counsel, you know, the opposing
repris, you know, counsel, if they show up, if they're African-American and they show up
they're female or even male and they show up with what might be considered a natural hairstyle or
afro or braids or locks, something that falls within the Crown Act, which is now has been
passed here in California, prohibiting discrimination and decisions in the workplace,
you know, based on how a person wears their hair, specifically their natural hair.
But if we see someone that comes with something other than kind of a more traditional, what might
be seen as a European-style hair that's, you know, relaxed or straightened or, you know, curled in a
certain way, are we going to think differently of them? And again, you know, that could be a form
of conscious bias, like, oh, anyone that wears natural hair, I don't think they're good at what
they do. I don't think they know what they're talking about. And I think they're, you know,
less than a great advocate, right? Or it could be implicit, right? You've never said to yourself
out loud, I don't like people who wear natural hair. But maybe it's an implicit bias in you
that if you're seeing someone because of how your brain processes things in a matter of milliseconds,
if you're seeing someone with something other than a traditional hairstyle that you're used to seeing,
you might think that that person is not as good as or smart as or as capable as, you know,
something else that you would compare it to. So that's how bias can arise from a cultural
perspective. And there's so many other examples. How can bias arise in a gender perspective? You
know, there's the obvious, you know, we have the, you know, traditional male-female dynamics and,
you know, the perception in most, in, you know, past instances, you know, come a long way in some
respects. But the perception is that women aren't as capable, women aren't as smart, women are too
emotional, right? But we also now have to think about gender in the context of all the new gender
identifiers and the ways in which gender has expanded. So thinking about people who are non-binary
or, you know, people who might be transgender, you know, this is a good time in our country's
history and the world history and at this moment in time to really think about how's our thinking
around gender evolved beyond traditional male and female, you know, categories of individuals. And
are we showing and exercising any new biases based on all of the new and expanded gender
identifications? Linguistic differences is another example that I see throughout mediation, you know.
Do we favor those who speak the same language as us or who speak, quote, unquote, the king's English
versus a, quote, unquote, broken English? Do we have bias against those who are not native English
speakers or who have accents or really who have, you know, maybe they speak English perfectly fine
within our definition of perfect English, right, quote, unquote. But maybe they have difficulty
expressing themselves. Maybe they come from a cultural background where, you know, people for,
you know, either side of the gender equation are not used to speaking up or used to sharing their
feelings or used to getting emotional. For example, in some of my mediation, I might have the party
on the other side, the plaintiff might be an individual, a male generally, who comes from a
kind of more of a quote unquote machismo background. And so that person may not go to therapy or see
the value in therapy. And the question becomes, are talking to someone about their feelings and
their emotions? So the question becomes, and especially from the defense side, is, well,
if they didn't talk to a therapist or if they have difficulty expressing the emotional impact that
this has had on them, then they didn't suffer emotional distress. And the plaintiff's counsel
is generally arguing in the reverse that no, no, just because this person has difficulty
expressing it, or for whatever reasons chose not to go see a therapist or perhaps can't afford to
see a therapist if they're in between jobs and no longer have insurance, that doesn't mean that they
did not, you know, suffer quote unquote substantial emotional distress. And the way that they express
their emotion and the impact that it's had on them may be rooted in how they were raised,
you know, within their specific specific cultural, ethnic or national origin experience.
So we definitely see bias and from the cultural perspective, a gender perspective,
linguistic and so many others. And next slide, let's talk about a few of the others.
Some of the other ways that we see biases in mediation is this perception that, you know,
some, you know, are more intelligent based on their educational background or based on their
ethnic background, and just based on their overall set of experience experiences. And if we see
someone as less smart than us or less intellectual than us, or not as, you know, high of a pedigree
in terms of their educational or law firm or associational background, then that feeds into
how we engage in settlement discussions. If we see someone is being from a different
socioeconomic background from us, particularly if it's a quote unquote lower social economic
socioeconomic background, it feeds into our perceptions that maybe that person is not as
deserving of a certain settlement or in the reverse, if someone comes from a quote unquote
high bread socioeconomic background, it may cause a person to think differently about their values,
that they only care about money, they don't care about people, that their character is questioned,
right. So all of our perceptions, no matter where they may be on the spectrum, you know,
depending on a person's background, their educational background, their socioeconomic
status, it feeds into and I see it every day, into how we engage in mediation and another,
you know, we're attorneys. And so we, you know, when we first get served with a lawsuit or engaged
with opposing counsel or getting ready for mediation, the first thing we do is we look at
that person's background on the state bar and their website, where did they go to school,
what law firms that they work at, are those law firms considered prestigious, you know,
did they pass the bar the first time, you know, all sorts of things that, you know, again, as
lawyers, we're even trying to simplify through our brains, what kind of person and I am I dealing
with on the other side, is that person as smart as me, is that person as capable of me and that
plays into how we engage with that person through a mediator in the mediation process.
And let me just give a few other examples of some of the things that I see every day in mediation.
So I broke it down into three categories. I see biases with respect to mediators and
neutrals themselves, with respect to attorneys, you know, opposing counsel, and with respect to
the clients that attorneys represent. So as mediators, and again, some of these biases,
you know, some are not good, right, especially if they're based on protected categories such as,
you know, ethnicity, cultural background, gender background, etc. But some, you know,
are their biases that are somewhat neutral, right, you know, but they impact how we might
approach a mediation and how we might see a neutral. So one bias I see is, you know, the
mediator, are they a former judge? Are they a former attorney litigator? And, you know, some
attorneys, you know, that represent their clients have very, very strong thoughts about whether
to pick a mediator based on whether they're a former judge or whether they're a former attorney.
Some think that, you know, judges, you know, have the ability to say something and everybody will
listen and they just strike the gavel and the deal gets done, right? But the problem and how
that's connected to potential bias is that when we look at the bench or even when we look at the
attorneys who ultimately become mediators, and we look at, you know, their ethnic backgrounds and
the side, you know, the demographics of judges on the bench, right? If they happen to be majority
white males and the majority of litigants out there are, you know, have a bias toward
selecting former judges as mediators, then that means that the mediators that they select more
often than not are going to be, you know, white male judges. And God bless them. Some of my best
friends are white male judges and I have so much respect for not only them, but just the bench as
a whole, right? We cannot do the work we do without amazing judges. And we have so many here in Los
Angeles, in California, and Fairfuly Hills. But does it mean that the end result in mediation
means that 95% of the neutrals who are selected as mediators are primarily white male? Because just
the sheer thinking around the demographics and how they work, whether it's from, you know,
former law firm environments, judicial environments, or other, right? So that's how bias can even creep
into something like picking a mediator. Even with picking a mediator, there's the obvious, you know,
potential biases based on cultural or ethnic or gender background. You may think that, you know,
African American woman doesn't have the chance, you know, have the capabilities or the background
or the experience or the sensitivities to take on a kind of bet the, that the bank, you know,
kind of mediation or one with that's a multi-million dollar class action or an instance that's a case
that's involved, you know, millions of dollars. So you may only pick that mediator, you know, for
your quote unquote low value cases, or you may only pick them when there's another African American
or person of color or woman or a disabled person, you know, the list goes on and on. You may only
pick that person that you perceive to be, you know, othered when a case involves an othered,
as opposed to just picking the best mediator for that particular case, you know, based on the
subject matter of the case, based on the dollar value of the case and based on that person's
background and experience before becoming a neutral. So there is definitely bias in terms of
picking neutrals and mediations and then even engaging with neutrals and mediation. You know,
if the person serving as your neutral, I mean, you would think you pick them. So you must have
some level of respect for them. But even this is where implicit bias comes in, even in picking them
or agreeing to that person as the neutral, if they fall into some other category that you have
a bias toward, you in the course of the mediation may question what they're telling you, you may
question whether they are grappling the facts and the law, you know, in a substantive intellectual
way, if they really get it, right? Or if they're in the other room, you know, pushing the envelope
with the other side, do they have that capability? And all of that comes in some instances from some
very, very explicit biases that we have and other instances from implicit biases that we have.
Also, I, for example, did the person when they were in practice, if they represent plaintiffs
for defense, depending on which side you're on, you may have greater respect for them if they were
on the plaintiff's bar or, you know, more respect for them if they were in the defense bar. But all
of those things play a part in terms of how we engage our neutrals in the mediation process and
the selection of neutrals for mediation. We also see biases, and I see it because I'm the person
going between both rooms in a mediation, biases that attorneys have among each other. So again,
you know, they may not, you know, the person may not be the neutral, but if they're the
attorney on the other side, you know, there may be a disrespect for them or a questioning of how
smart they are if they represent plaintiffs or if they, you know, represent defendants
from law school or what their associations are, or did they pass the bar the first time? What type
of school did they go to? Did they go to a top 10 or 20s? Did they go to another type of school?
All of those things play in terms of how we see the attorneys that we're dealing with and engaging
with. And it comes out in mediation. You would not believe some of the things that I hear sometimes.
And again, that's where I go back and say, as the neutral, as you're seeing and hearing things in the
mediation rooms, the breakout rooms that you know are rooted in some form of bias, whether it be
implicit or explicit bias, then you're using that information not to make the parties feel bad,
not to make the use of it to try to guide the conversation and guide it in a way that's more
positive and that for purposes, helping to minimize the impact that all of the biases that are playing
throughout the day have on that mediation process. I also see bias with respect to the clients in
mediation, particularly in my line of work with plaintiffs, for example. A lot of times the plaintiff,
you know, because employment law, you know, big part of employment law is based on discrimination,
principles of discrimination. And the underlying issues are, you know, whether the person
is a part of a protected category. And if there were any employment decisions,
based on that person's protected category, right? So the individuals of color, individuals, you know,
from gender backgrounds, individuals with different physical and mental capabilities that might result
in a claim for disability discrimination, I see clients across, you know, the full gamut of what
we consider protected categories. And we know here in California, compared to federal law and some
other states, we have, I think now we're probably up to about 20 or so protected categories. So you
can imagine in my medias, I'm seeing a full gamut of people and individuals who might be
considered other. You know, might have some thoughts about a person is telling the truth
based on their perceptions of or other background. There might be some questions about, you know,
if that person's of a lower socioeconomic background, you know, if they deserve,
quote unquote, a high value settlement, perhaps they were a minimum wage worker because of the
industry that they work in, or their background, or their educational background, or experiences.
And so there might be a perception that a high value, that person is not deserving
of a high value settlement. So one of the things I hear sometimes is, you know, we're offering them,
you know, one year salary, and perhaps that salary just based on their minimal age is $20,000 or
something, right? And, you know, that's more than they would make, you know, at any time, right?
And I've seen this a lot, plaintiffs' attorneys are saying, well, we're just, we're going to waive
economic damages because the real impact here is the emotional impact that this case had on my client.
And so we're focused, and, you know, when we talk about emotional impact and victim impact,
you know, from the plaintiff's attorney's perspective, they're saying, you can't place a
price tag on that. You know, you can't just devalue or minimize the person's experience
and the impact it had on them because they were a lower wage or a minimum wage employee,
or they came from a quote unquote low income socioeconomic background. So that type of bias
plays out, and it plays in the reverse too, on the defense side, the defense attorney may be
a big business employee, or a big box employer, an employer that's national or international.
And so the perception on the other side is they have the money, they can pay it,
a bunch of people. And you have to be careful, even in those instances, that, you know, defendants,
even though they may be big, they may have the money, they may have all the resources in the
world, in those instances, they're saying, you know, we're going to pay based on what we think
the merits of the case are, and not just because we are a big box employer, so to speak. So those
are some of the ways that biases come into play in mediation, both with respect to the
neutrals themselves, the attorneys opposing each other, as well as with respect to the clients
that you all represent and that I used to represent. So what are some strategies that we can use to
start to recognize and eliminate bias in mediation? I've already touched on them, but I'll just re-emphasize
it here. It really begins. And like I said, if I, if you don't get anything else out of today's
presentation, it first comes with acknowledgement and awareness. We've got to acknowledge and
be comfortable with the fact that we all have biases. It's a part of our DNA, it's who we are
as humans. Some of our biases are not so bad or kind of innocent, but some have a real impact on
the work we do, how we engage with others, and it definitely has an impact in our mediation,
in the success and the outcome outcomes of our mediation, mediation. So it starts with acknowledgement,
awareness, and I say to you, it just doesn't end there like, I'm biased, you know, I have issues,
so is life, right? But that you, if you really, really, really want to be a better person in this
regard, and you got to take the next step, even past today, even past your firm's traditional
one or two hour, you know, bias elimination training each year and start to educate yourself,
start to engage in a way with others that says, you know what, I want to do better in this regard.
I really want to get to know other people, pass what my brain immediately sees. I really want
to start to deal away with some of these issues I have. Not one is good for you as a person,
but it also impacts the way in which you represent your clients, it impacts getting the best outcomes
for your clients. And then if you're a neutral, it does certainly helps you to be a better neutral,
so that you're creating a process like Maya Angelou said, where everyone walks away,
you know, feeling hurt and respected, people remember how we made them feel. Not what we said,
not even the settlement that we got them, right, or help them to get, but they remember
how we made them feel. So education, acknowledgement, awareness, and education. And then in acknowledging,
in educating, we start to do away with some of our biases through avoiding assumptions and
thinking twice when we see people that we traditionally may have put into other categories
in the past. And we start to build relationships across the aisle that are based on true,
you know, looking at the individual as an individual and not looking at them as one group of people
that are individuals that we may have stereotyped in the past. We should also
learn to empathize more, and that means placing ourselves in other's shoes. And so one of the
things I do pre-mediation calls in my mediation, and one of the things that, one of the questions
that I would ask, and it's, you know, specifically designed to get to this, you know, empathy component
of eliminating bias and how we think is, you know, have you thought about the other side and how
they're going to argue the case? Have you thought about how the plaintiff might perceive what happened
to them or how the plaintiff believes it may have impacted them? And I'll ask the plaintiff's counsel
the same question in the reverse as it relates to the defendant and the employer, because the
employer deserves to be heard as well, right? It's not just the O1 Way Street, it's the two-way
street and a two-way dialogue. So developing empathy as litigators, as a former litigator,
we come in, you know, guns blazing, constantly, you know, wanting to advocate and to fight and go full
force, right? And just arguing even throughout the mediation process, never taking off that heart
litigation hat. And it's important to take a step back from that. It doesn't mean you're not zealously
representing your client. It doesn't mean you've kind of led up on, you know, that representation
or that you're weak in some regard. But taking a step back and encouraging your client to do the same,
to just think about, even just for a moment, how the other side may be thinking and what the impact
of this on the other side, the emotional impact, the business impact, that level of empathy,
allows us to start to, you know, put a human face on more of these situations and not just see it as
the next case that we're litigating or the next case that we are mediating as neutrals.
And then listening actively, you know, that goes without saying, you know, whether it be in mediation
or just other environments, personal environments, family environments, you know, at work with other
colleagues, you know, listening, listening not to be heard or to immediately speak, but listening
to hear and to hear what the other side is saying. When we stop and we really, really listen, it has
a way of helping us to see behind, you know, whatever our traditional biases or perceptions of the
other person on the other side and really seeing them for who they are. And that is a great step
toward eliminating any bias that we may have with respect to or against the person or persons on
the other side. And then as mediators, you know, one of the things we want to do is encourage
open dialogue. Granted, in California, most of our mediations are caucus style. The other side, you
know, the two or more sides are not engaging with one another, but it's up to that mediator
as she, he or they are in the room with either side to kind of express things and to share things
from the perspective of the other side, not to distance the room that you're in, but to help
that room to just see that there is another perspective here. There's another set of conversations
to hear, making that feel that when you're in a room with the other side that you're doing the same
thing on their behalf. Okay. Other strategies, periodic self-assessment, you know, this is a
lifelong learning thing. We never get rid of our biases, you know, made if we're lucky, some of the
biases we have, they start to minimize. Sometimes, you know, we get better at managing them. But,
you know, our entire lives, we are dealing with the individual biases that we have and the impact
that those biases have on our work. So as you're becoming more self-aware, you also have to be
willing, you know, like we do in the work environment, annual reviews, annual assessments, we have to
be willing to have that, you know, periodic self-assessment with ourselves, that dialogue with
ourselves, you know, am I getting better? Or am I allowing my lifelong list of potential biases
to still shape how I see the world and how I engage with the world? We have to be flexible. We have
to realize that, you know, we all come to think against the opposing counsel that we are engaging
with. We don't have, you know, issues and we're all dealing with the impact of life and COVID and
the pandemic and so forth. So being flexible and understanding and seeing the world from a different
perspective and then seeking feedback, you know, perhaps you have a trusted, you know, friend or
colleague that you can really be open and honest with, especially if that person is one of the,
in one of the other categories that perhaps you, you have some challenges in and asking them,
you know, what can I do better? What are your thoughts about? I said this, what are your thoughts
about that? And, you know, seeking that feedback and accepting it, you know, for what it is and then
internalizing it in a way that doesn't make you feel worse about yourself, but makes you want to
work on that and to determine ways in which you can engage better and kind of be a better listener,
a better person that has more empathy and a person that sees humanity and the work that we do.
And how do we work around the biases of others? How do we do one thing to recognize our own biases,
but when we see biases in others, what are some techniques for working around that? Again, I think
this is probably most important in the mediation context. And if you are actually a mediator or
a neutral helping to facilitate a mediated process. So if you're visiting, there'd be through
counsel or their clients or individuals participating in the mediation process. The first thing,
again, you don't want to confront make upset the apple cart, make everybody feel bad. It's like,
you're racist. I'm ending this mediation, right? That does not serve anyone, right? So we want to
take it in as mediators and neutrals and, you know, want to take note of it and then start to think
about how we can redirect the focus, you know, based on the hardcore facts, the legal issues,
and the theories to get the proceedings back on track. And we may want to think about questions,
you know, if someone's like, you know, clearly they may have a bias toward, you know, women or
disabled people or what have you, you know, maybe you can come up with a set of questions of, you
know, well, what makes you, you know, I hear you. And, you know, I want to understand as your
mediator so I can better, you know, present your case and your perspective in the other room.
I want to understand your thinking behind that, you know, why do you think that or how do you
think the other side would think about that? Or how do you think the plaintiff would think about
that or the defendant, right? So you come up with a, you know, set of non-confrontational but
guiding and critical questions to help guide the process in a positive, a more positive direction,
but also allows you to kind of have that person maybe think about, even if it's in an indirect way,
what they just said or a perspective that they may have that is rooted in bias that's ultimately
impacting the process. Secondly, it's so important to build report and trust with the parties.
That starts before the mediation. Again, I think the pre-mediation calls are so important because
that's where you start to build trust and rapport with the attorneys, especially if you haven't
worked with them before. And you want them to out the gate to see you as neutral, as someone who's
respectful and someone who's really going to work hard to see, to hear all sides of the story,
the legal issues and theories and use that information to try to guide a positive process
that ultimately leads to a positive outcome. But again, a process where everyone walks away,
whether it case settles or doesn't settle, feeling that the process itself was respectful, it was a
good process and they felt like the mediator hurt them and was fair and transparent and
equally leaned in all the parties and all the counsel involved. And then finally,
under all circumstances, as the neutral, as the mediator, you never want to compromise
your impartiality or your neutrality. Even if you're feeling personally attacked by any party,
based on some bias that you think they may have of you, you never want to wear that on your shoulders.
You never want to let that come into the process because once your neutrality, your impartiality
is compromised, then it probably impacts your ability to continue to try to help guide the parties
to resolution or at least to a process that they all walk away feeling it was a respectful process,
it was a trusted process. Now, does that mean you as a neutral just sit and receive personal attacks?
No, it doesn't, right? No one, even as neutrals, even as individuals who are supposed to be impartial,
no, it doesn't mean we should just sit and accept personal attacks, particularly those that are rooted
in bias. But maybe it means, you know, if it's the attorney or even their client, maybe we pull
them into a separate room or have a sidebar, a dialogue with them to say, you know, what you
just said or what your client just said, you know, really did not, you know, make me feel comfortable
or respected. And I would just ask that, you know, we dial down those kind of personal attacks or
those kind of personal perceptions so that we can focus on getting to the issues that hard.
Or maybe you don't even have that sidebar and you go back to what I suggested in box one here,
is you kind of breathe, you take it, take it in for, you know, for what it's work, you manage your
own emotions in that process. And then you look for ways to engage in a positive, more forward
thinking way and to ask questions that maybe causes that person to think about the error of their own
ways and to think about what they said. And I've seen so many times where individuals, whether
it be attorneys or their clients, will apologize when they realize that they have offended the neutral
or says something that it hurt in the other room could be offensive and perceived as, as biased
behavior. But it's so important that the neutral, even when others around you as a neutral are
losing their cool, becoming frustrated per se, perhaps saying things that are off color or
inappropriate, it's important to manage that, not just to take it, of course, you know, I'm not
suggesting that at all, but to take a step back to breathe and to figure out how to best manage
that. So you maintain your impartiality, you maintain your neutrality, and you're able, if it's
appropriate, to keep the proceedings moving in a positive direction. So that's my presentation
today. And again, we can go to the last slide. I'd like to just thank you all so much for
participating in this inaugural mediation certification training for the Beverly Hills Bar Association.
I'd like to thank you, Beverly Hills Bar Association, for inviting me to be a part of this
inaugural class of litigants and potential future neutrals. And I just, you know, want to encourage
you all, whether you are a neutral thinking about becoming a neutral or a litigant, and just taking
this course so you, you know, start to understand how mediation works and how neutrals think and
some of the theories behind mediation to take these skills and tools with you, and really to be an
ambassador, you know, in our profession, as lawyers, as mediators, as neutrals, of, you know, really
being an ambassador and a committee of one to start to encourage folks to, and ourselves, looking
inwardly first to, you know, really dial down on the biases that we see in our profession. It impacts
the outcomes of our mediation, it impacts the outcomes of our cases, and it really, you know,
makes for a less fulfilling life as an attorney, as a mediator, as a neutral. And so even just,
you know, taking these concepts in just for ourselves personally, you know, makes a difference in
terms of our enjoyment and our fulfillment in this profession. So thank you again. I hope this has
been helpful. And I welcome you to reach out to me if you'd like to continue this discussion or if I
can be helpful to you in any way or any of your cases. Have a great day, folks. Wherever you are,
at what time you're looking at this, have a great day and a successful career as a mediator,
a neutral artist, continuing being the great advocate that you are.