Facing Prejudice In Mediation: What Should The Mediator Do?

by Josefina Rendon

Adapted from: J. Rendón, Under the Justice Radar?: Prejudice in Mediation and Settlement Negotiations, 30 T. Marshall L. Rev. 347 (2005). Presented at the Texas Association of Mediators 2007 Conference in San Antonio, Texas).

The book, The Making of a Mediator: Developing Artistry in Practice,tells us about outcome-determining, critical moments in mediation where mediators sense the moment is “pivotal” and that they should respond quickly by choosing from a number of available responses. Facing perceived prejudice and discrimination in mediation might be an example of such a critical moment. At such times, Lang and Taylor recommend that mediators acknowledge that it is a critical moment and why. They also recommend that mediators reflect whether their formulation is correct and fits the disputants; that they test the validity and suitability of their formulation (often with the parties); and that they discuss and collaborate with the parties in choosing the next step. (Lang & Taylor 2000)

In 2005, I conducted a survey of mediators and advocates regarding their perception of the presence of discrimination or prejudice in mediation. I asked participants questions such as: 1) Do you believe that a person's race or nationality can affect the outcome of mediation or settlement negotiations? 2) Have you had a mediation or settlement negotiation where you felt that a person's race/nationality affected the outcome? 3) If #2 is yes, did the issue of race/nationality help or hurt the outcome? 4) If # 2 is yes, was something said specifically about race or nationality? 5) If you encountered racism/discrimination/prejudice, what was the race/nationality of the person who you felt was discriminating? And the one discriminated against? 6) Do you have any recommendations on a course of action if you were facing racism/ prejudice/ discrimination in the mediation or settlement negotiation context?

Though only 45 people answered, the group was diverse. Twenty were Anglo or European American, sixteen Hispanic, five African-American, two Asian-American and two who mentioned both their European and Native-American heritages. Responses to the first four questions can be found in a previous article (https://www.mediate.com//articles/rendon2.cfm). The fifth question, requesting recommended courses of action, is the subject of this article.

Based on the responses and on some literature on the subject, I will discuss courses of action when faced with prejudice or discrimination in ten categories. These are:

1. Be pragmatic, ignore, stay on track towards resolution or the legal issues
2. 2. Take preventive measures
3. 3. Bring it to their attention /Educate them
4. 4. Balance the power / Empower / Maximize
5. 5. Take assertive action
6. 6. Be gentle/diplomatic
7. 7. Be humanistic/transformative/from the heart
8. 8. Have a sense of humor
9. 9. Be self-reflective/mindful
10. 10. Be flexible/eclectic

1. Be pragmatic /Ignore / Stay on track with resolution and the legal issues

Some respondents believed that prejudice and discrimination issues are irrelevant distractions from mediation’s goal of case resolution, and therefore should be ignored or put aside. One respondent even suggested that these issues may just be “a convenient rationale for those who are not 100% satisfied.” [1] He added, “Stick to the objective facts of the case, and applicable law. Point out that the issue they've raised may be irrelevant in court.” [2] Another pointed out that we should not let these issues affect our evaluation of the case. [3] In contrast, in their seminal book, Getting to Yes, professors Fisher & Ury advise negotiators not to ignore difficult people and their behavior but to separate or untangle them from the problem to be resolved. They argue that it is even possible to negotiate with a Hitler. In deciding whether to negotiate with the ultimate bigot, a Hitler, they suggest negotiators consider the alternatives, especially the Best Alternative to a Negotiated Agreement. “However unsavory the other side, unless you have a better BATNA, the question you face is not whether to negotiate, but how.” (Fisher & Ury 1991 at 163). Following this advice, a mediator may choose to continue the mediation after pragmatically weighing the alternatives.

2. Take preventive measures

Some respondents suggested for the mediator to act before the mediation session or at the time when the mediator is learning about the parties and facts surrounding the dispute. They suggested the mediator match the parties, as much as possible, in race, nationality or any other distinguishing, relevant factors. [4] Another recommendation was to use a co-mediator. [5] Others suggested that mediators seek to learn more, prior to the mediation, about cross-cultural and diversity issues [6] or about the sociological, historical, cultural and geographic facts surrounding the mediation. [7]

One author who suggests the issues be addressed from the beginning is Isabelle Gunning. Professor Gunning proposes that mediators raise the justice and fairness issues when giving the introductory speech in which the mediator typically discusses the rules, concepts and aspirations of mediation (Gunning 2004). Gunning also proposes that the parties “explore the possibility of imbalance and any negative implications through a ‘check-in’ with the parties on the agreed-upon process and outcome values.”

3: Bring it to their attention / Educate them

Some respondents recommended that if race, prejudice, or discrimination becomes an issue in a mediation or settlement negotiation, the mediator should meet the issues “head on” by bringing them to the table. [1] One stated that the mediator should be sensitive towards the issues from the beginning and, after addressing it with the parties, should decide whether the mediation should even start. [9] Another would go to caucus and address the issue in private with the discriminating party. [10] Under some circumstances, another would stop the mediation altogether, [11] while another would first raise her objections and attempt to make the discriminating party accountable before ending the mediation. [12]

Some respondents believed educating the parties was important. One stated it was important to learn about each other’s backgrounds and to discuss differences as well as commonalities. [13] Another mediator would try to educate the parties, not necessarily about the issues of discrimination and prejudice, but about other relevant issues such as the value of the case. [14]

Professor Gunning recommends activist mediators who discuss these issues at the beginning of mediation in the same manner they discuss common rules such as confidentiality, good faith and others. (Gunning 2004) Professors Fisher & Ury advise negotiators not to teach difficult people a lesson by emulating their unconstructive behavior, but instead act in a way “designed to model and encourage the behavior we would prefer and to avoid any reward for the behavior we dislike….” (Fisher & Ury 1991)

4. Balance the power / Empower / Maximize

Several respondents believed mediators or negotiators should try to balance the power or inequities between parties. [15]One even suggested it is the mediator’s responsibility to do so. [16] Another stated:

I think this needs to be treated as any other power imbalance during mediation. The mediator should do everything he/she can to put both parties on an equal footing. Sometimes this may need to be done in caucus, where the mediator's concerns can be dealt with more openly than in the group session. [17] 

In contrast to the belief that the mediator should help balance the power between parties, author Jim Melamed strongly disagrees (Melamed 1999). He argues that a mediator generally has four options available regarding the parties’ capacity and power: These are: “1) Operate under the assumption that we as mediators do not influence participant power or capacity and seek to avoid any such influence; 2) Empower so as to equalize or balance power between participants. 3) Seek to ‘comparably’ empower participants; or 4) Embrace empowerment and carry it to the fullest extent of ‘maximization.’” Regarding these options, he believes that: 1) “pretending we don't influence the system is unrealistic;” 2) “power balancing is a violation of our duty to be impartial;” and 3) “comparable treatment has us playing god.” Therefore, he advocates 4) taking “‘empowerment’ to the ‘nth’ degree through maximization.” Melamed argues that “perhaps the only way one can really empower participants consistent with the mediator's duty to be impartial is for the mediator to maximally assist each participant at all points in time.” He adds that: “Anything less than such complete devotion to each participant may mean that a mediator is playing favorites by withholding support.” (Melamed 1999). Note: For more on power and dispute resolution (Coleman 2006) and (Mayer 2000) are recommended reads.

5. Take assertive action

Two trial attorneys and negotiators recommended that the mediator or negotiator “step to the plate,” [18] and be aggressive and make a big issue out of the discrimination when calling it to their attention. [19] Another trial attorney, who is also a mediator, stated that he would stop the mediation and reschedule with a different mediator. [20] Another stated, all in capital letters, that he would just stop the mediation. [21]

Professor Gunning seems to agree with this assertive role and proposes “activist mediation” in which the mediators take responsibility throughout the mediation in highlighting justice issues, actively seeking to raise participants’ awareness and resolution. (Gunning 1995, 2004)

6. Be gentle/diplomatic/oblique

Some respondents recommended gentler, less-assertive approaches. One mediator called for caution and diplomacy in handling these sensitive issues. [22] Another mediator would first make sure that her perception was correct and to that purpose would gently ask questions of the person she believes is acting with prejudice. [23]This reminds us that mediators should not only do reality checks for the parties but for themselves as well.

Much of the advice in negotiation books, such as Getting to Yes (Fisher & Ury 1991), and Getting Past No (Ury 1991) and their progeny is diplomatic advice. In fact, Getting Past No begins with a quote by Italian diplomat, Daniele Vare: “Diplomacy is the art of letting someone have your way.” Most of the books from the Harvard Project on Negotiation are excellent sources for those mediators who would choose a diplomatic, oblique approach.

7. Be humanistic/transformative/from the heart

Other respondents recommended going beyond diplomacy and obliqueness. A respondent mediator would more gently emphasize human dignity and respect and “second chances” when calling justice issues to the parties’ attention. [24] This approach, without this respondent labeling it as such, would go in par with the humanistic model of mediation promoted by Professor Mark Umbreit (Umbreit 1995).

Among the intrinsic beliefs of humanistic mediation is the belief in the inherent dignity and self-determination of the parties. Humanistic mediation is often used in restorative justice and victim-offender mediations. Among its tenets are the connectedness of all things and our humanity; the importance of mediator presence and connectedness while facilitating conflict resolution; the healing power of mediation; the mediator’s availability to help parties share feelings; the belief that most people desire to live peacefully and to grow through life experiences; and the existence of people’s inner reservoirs of strength to overcome adversity, grow, and help others.

Similar to Umbreit, two conflict resolution authors address issues of diversity and injustice “from the heart.” Authors such as Kenneth Cloke (2001) and Michelle LeBaron (2002a, 2002b) recommend gentle probing and a search for stories and connectedness with others.

Another mediator and survey respondent would use “transformative mediation” opportunities for empowerment of the parties. [25] Transformative mediation is a movement within the mediation field that emphasizes a gentle, laissez-faire approach by a mediator who encourages and highlights moments of empowerment and recognition between the parties. (Bush & Folger & 1994, 2005) (Rendon & Dougherty 2000).

8. Have a sense of humor/See the glass half-full

When asked for recommendations on a course of action if facing racism/ prejudice/ discrimination in mediation, one trial attorney simply added: “Get injured in a place where there is less racism.” [26] This answer can be construed as pessimistic, cynical, or fatalistic, while at the same time it can be construed as tongue-in-cheek humor.

At the risk of being accused of taking the subject of discrimination and injustice too lightly, I would argue that having a sense of humor can often produce powerful results. People who laugh together can work together and respond to each other better. There are some studies that show that the negotiator’s mood can significantly affect the outcome of negotiations (Freshman 2002).

9. Be self-reflective/mindful

We revisit the last response to what to do when facing discrimination in mediation: “Get injured in a place where there is less racism.” We should hold the moment and reflect on our own interpretations of that comment. Do we see it as a serious statement or as humor? Would we make a similar response? What would be our response to the question of what to do if we encountered discrimination and prejudice? Our responses may provide a window into our selves that may be critical to our practice and our effectiveness as mediators, especially in situations where we believe we are facing prejudice. How do we see the world around us? Do we see the glass half-full or half-empty? Are we optimistic or pessimistic, positive or negative, cynical or hopeful? Do we see people as ultimately good or evil? What are our internal conversations and responses regarding ethical dilemmas and perceived discrimination or injustice. When someone complains of discrimination, do we fail to see it, do we become cognitively aware of it, or is the issue a hot button that affects us emotionally?

How the difference in response can impact our role as mediators came very clearly to me while observing a role play in Houston, Texas a few years ago. In a discussion after a role play, the female mediator expressed her feeling that her authority or legitimacy was being questioned because a difficult male attorney had insisted on continuing the mock mediation in a different direction than the direction she had planned. She felt she was being devalued, personally and/or because of her gender and, throughout the failed mediation, had insisted on doing it her way. After all, she was the mediator and keeper of the process. On the other hand, I remember seeing it differently. I probably would have felt just as frustrated but did not impugn sexism or bad faith on the gentleman’s part. Instead, I saw the assertiveness that often comes with advocates and the fact that he, like her, had a very clear, though different, sense of where the mediation should go.

From my safe seat as observer, I thought that faced with a similar situation I would have acknowledged the attorney’s needs, discussed the direction of the mediation, and/or perhaps negotiated over the process with the parties. The instructor, author Bernard Meyer, suggested Aikido, the gentle art of self-defense where, rather than block or confront, the mediator becomes one with the “opponent” and diverts the negative energy to a more constructive end. (See Saposnek 1980, 1998) Self-awareness and awareness of the dynamics involved in that interaction could have had a diametrically opposed result. Had this mediator taken a metaphorical step back, and looked at herself and the situation, she may have also acted differently. I believe that being aware of yourself, your worldview, your impulses and the dynamics involved in similar situations could make you a better mediator and negotiator. Having such self-awareness will guide our actions as practitioners, our choices whether to intervene or not, and our relationship with our clients and others.

By recommending that negotiators “go to the balcony,” author Roger Ury makes a similar step-back/take-a-break recommendation when dealing with difficult people or “hot-button situations.” (Ury 1991) Other authors have gone beyond taking that metaphorical step back. They suggest that we be contemplative, that we just “be in the moment” rather than “do” or “become,” and that doing so will help us act with awareness and purpose during such critical moments in mediation. It will also enable us to have a presence that will enrich our lives and our practice as mediators. (See Bowling 2003, LeBaron 2002a &2002b, Riskin 2004)

10. Be flexible/eclectic

During discussions regarding the themes for a State Bar of Texas ADR section conference, one mediator jokingly said, “Maybe we can have presentations comparing “muscle mediation” to “sissy mediation.” Many people laughed but the message was clear and well-known among mediators: Mediators have different models of intervention that range from the very forceful “muscle mediation” to the gentler, though politically incorrect label of “sissy mediation.” Some mediators may use either extreme, while others use a combination, and others may use a progression from less- to more-assertive interventions.

Of our survey respondents, some stated what they would do or recommend depended on different factors. One mediator would start with gentler to progressively more-assertive styles, depending on the effectiveness of earlier interventions. [27] Another said the appropriate intervention would depend on whether the discrimination was legal or illegal.[28]Another believed the success of the same intervention would vary depending on the parties involved. [29]

“Maximizing mediation,” as proposed by James Melamed, is another flexible approach to mediation in general. Melamed reminds us:

[P]articipants will have different personal needs and different ideas about the process and substantive interests that they would like satisfied. One participant may want to "maximize" by getting the matter over as quickly and cheaply as possible. The other may have interest in taking whatever time is necessary to talk about relational issues and to ensure that they do not make any foolish decisions. The goal for the mediator to seek is to maximally assist each participant to the greatest extent possible, knowing that the results achieved will almost by definition be imperfect. The results may be "compromised," but we still want them to be as good as they can be! (Melamed 1999)

One interestingly eclectic concept is “guerrilla mediation,” not just for issues dealing with discrimination or injustice, but also for disputes in general. Guerrilla mediation’s basic tenets are: “(1) respect for human nature as it is, not as we would like to believe it could be; (2) a realistic understanding and acceptance of conflict; and (3) the effective use of strategic planning.” If this approach is not eclectic per se, at least the philosophy behind it is. Author Robert Benjamin argues that the prevailing philosophies behind mediation and negotiation “do not systematically and holistically account for the whole repertoire of human behaviors that are commonly displayed in human interactions and especially in conflict.” He argues that guerrilla mediation does. Benjamin also believes that: “a good mediator reads the conflict between the parties and devises a strategy that effectively uses the parties’ force and energy to negotiate the conflict.” (Benjamin 1999)

According to Benjamin, the philosophy that prevails in the mediation field is humanistic or rationalistic. He explains that “Humanists believe people are basically good at heart, rationalists believe they essentially operate out of predictable patterns of self interest.” Both schools tend to pass moral judgment on deceptive or manipulative behavior. There is also the competitive/opportunistic approach to negotiation, which tends to be Machiavellian and “operates from the belief that humans are basically evil, self-interested, deceitful and manipulative, and bent on the accumulation of power and control.” (Benjamin 1999) Benjamin argues that both approaches are inaccurate and incomplete. He proposes that guerrilla mediation is based on a naturalistic view of human nature that takes into account, without judging, the whole range of human behaviors.

Conclusion

In the end, my search for answers on best practices regarding the presence of prejudice in mediation led to a comparative overview of the conflict resolution literature. This article is the product of the information gathered from these sources as well as from conflict resolution practitioners. The answers vary considerably and even contradict each other: ignore or act assertively; balance the power or maximize; educate or use humor; stay on track with legal issues or be transformative, be a “guerrilla” mediator or a humanistic mediator; and so on.

It is also important to note that, the type of intervention taken is also a matter of personality, personal philosophy and style. Some of these interventions or actions will feel more natural to each of us than others. Consequently, the “same” action in the hands of two different mediators may reach two diametrically opposed results. Even the same intervention by the same mediator when faced with different parties (a Gandhi, a Hitler or the gamut of human characters) may have different results.

The emphasis of the article was on the conflict resolution component of the problem of prejudice and discrimination. In a search for more answers, a mediator may want to read more of the literature on prejudice and discrimination issues. (See: Araujo 1996/97, Crenshaw 1995 and Hutchinson 2004).

Finally, I highly recommend Lang’s & Taylor’s The Making of a Mediator: Developing Artistry in Practice as well as all the books and articles in the bibliography below. Reading these books, trying and reflecting on their advice can help most mediators use the right intervention at the most critical moments in mediation whether involving prejudice or other issues. May they help you choose wisely during critical moments in your practice.

Originally Posted at www.mediate.com  (for end notes &/or bibliography go to: https://www.mediate.com//articles/rendon3.cfm

 A mediator since 1993, Judge Josefina Rendón has mediated over 1,300 disputes in a variety of areas including family, employment, personal injury and many other areas of law. For almost 4 years, she taught negotiation and mediated for the U.S. Air Force, Army, and Navy. She is also an Assoc. Municipal Court Judge in Houston and a former Civil District Judge.