Abstract

Excerpted From: Barbara Glesner Fines, Biases & Mediation Practice, 37 Journal of the American Academy of Matrimonial Lawyers 117 (2024) (140 Footnotes) (Full Document)

Despite the central value of impartiality in mediation, bias is an unavoidable aspect of the process. Attorneys and mediators alike need to be aware of how bias distorts decision-making and can lead to unfair judgments about others. The core ethical duties of these professions require that they work to counter these tendencies.

Model standards define impartiality as “freedom from favoritism, bias or prejudice.” So fundamental to mediation is this concept of impartiality that another term for a mediator is a “neutral.” While mediators may approach the role with different philosophies regarding the balance between directive and elicitive, a suggestion that mediators (or attorneys for that matter) are biased would clash with either of these principles. These professionals, who pride themselves on being logical, fair, and caring, may react to such suggestions with a stress response: fight, flight, or freeze. However, suggesting that professionals must consider the existence and impact of bias is not meant to induce feelings of shame or guilt. Indeed, this article adopts the premise that bias is simply part of what it means to be a human.

Mediation is a common, some might say predominant, feature of the dispute resolution process in family law. “[T]he process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room.” Increasingly, experienced matrimonial attorneys serve as mediators as part or the entirety of their practice. Accordingly, matrimonial attorneys must understand the operation of bias in mediation.

This article will explore the meaning of bias and the ethical duties of both attorneys and mediators to understand how our decisions and judgments are affected by bias. In particular, the article will focus on cognitive biases that are especially significant in the mediation process. In section II, Part A explores the biases that affect perception and valuation and so distort decision-making. Part B explores biases that affect how we judge people, in particular their motivations and intentions. Part C explores those biases that especially impact interpersonal communication. Throughout, the article provides suggestions for recognizing these biases and mitigating their detrimental effects in mediation.

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Bias is a critical consideration in the mediation of family law disputes. Attorneys and mediators alike must combat the impact of invidious discrimination and bigotry. They must be aware of the legal system's explicit policy choices, in the shadow of which negotiations occur.

However, the most pervasive biases are neither express prejudice nor policy preferences, but are the automatic predilections that humans use to manage the barrage of information they must process from second to second. These implicit biases look for ways to avoid cognitive dissonance, so that we search for, notice, and accept information that confirms our pre-existing unconscious judgments - judgments that have been built up from a lifetime of experiences and exposures. These biases lead us to favor the immediate, accessible, information - simplifying complexity and short-circuiting more analytical decision-making. Our brains store information in patterns and stories that can result in unfair assumptions and associations. Our tendency to assume that others are like us, can lead to misunderstandings, not only regarding communications from those who are different but also those who are like us.

All of these unconscious biases can lead to false assumptions, poor decisions, unfair judgments, and failed agreements. Accordingly, mediators must learn how to recognize and combat these biases. Fortunately, the standard mediator's toolkit has a number of tools that are especially helpful to combating implicit biases. These include paying careful attention to timing and process, to create environments in which automatic assumptions can be replaced by more careful and deliberate examination of meanings. The mediator's use of active and reflective listening and perspective taking provide the best antidotes to the faulty conclusions that can flow from implicit biases. Attorneys representing their clients in mediation can assist in the facilitation process by bringing these same tools to bear in preparing their clients for mediation. By attending to bias reduction in mediation, family law professionals can increase the quality of communication and decision-making and thereby the health and stability of families as they re-form their relationships.

Dean Emerita and Ruby M. Hulen Professor of Law, University of Missouri - Kansas City.