Minorities, mediation and method: the view from one court-connected mediation program.

• Author: Bernard, Phyllis E.

INTRODUCTION

This Article offers a granular, first-person view of cross-cultural dynamics in small claims court mediations in a metropolitan area with a population of one million people. It presents a four-year qualitative study of mediation processes in 125 cases involving minorities, drawn from studies involving about 300 cases. The study suggests three findings related to the long-running debate over the role of race in mediation: (1) minority status in terms of ethnicity, race, or national origin may not matter as much as gender; (2) neither gender nor ethnicity, race or national origin may matter as much as socio-economic class; and (3) a well-constructed, constantly monitored methodology for mediator training and supervision may assure fairness in many small claims cases, so long as the mediation is understood as an adjunct to the judge's role, not as a replacement. This review synthesizes multiple perspectives of case management, academic research and pedagogy as derived from my own experience, but speaks only on my behalf, not the mediation program examined.

For this Article, I reviewed some 300 mediation clinic small claims court analyses presenting law student mediator observations on the theme first published by Professor Richard Delgado and other critical race theorists. Should minorities be discouraged from participating in mediation because they are unlikely to achieve fairness in an informal process moderated by a third-party neutral arbitrator? Should minorities instead look to the formal process of litigation, relying upon the judge to assure fairness? (1)

These questions become more than merely academic once those concerned about judicial administration consider access and fairness as a function of the design and funding of case management systems. The "real world" iteration of that academic debate becomes: At what cost are cases diverted from public court rooms presided over by judges to mediations conducted behind closed doors with third-party neutrals? Traditionally, the success of such court-referred mediations is measured in quantitative terms of overhead costs saved and dollar amounts settled.

More difficult to assess is the qualitative success of court-referred mediations, capturing the subjective sense of justice in these out-of-court processes. For thoughtful program designers and users, the issue--particularly concerning persons who appear pro se--becomes whether the dynamics of race prejudice outweigh the touted benefits of flexibility and party self-determination?

The confidential nature of mediations generally thwarts attempts to understand the subjective experience of this particular legal process. The usual design of litigant mediation does not allow for the transparency needed to gather research ordinarily available to persons scrutinizing the dynamics of court room processes. Mediation's inherent opacity leaves scholars and policy-makers with little contemporaneous information about mediation's ostensible forte: guiding communication between parties in a manner designed to reduce personal conflicts in a litigated matter, thus opening the parties to craft a resolution offering a better (or more enforceable) alternative than the parties believe they would obtain through the judge's decision.

Various scholarly approaches have been taken to deal with these problems inherent in trying to analyze mediation. Some have developed hypothetical stories to illustrate particular thematic issues. (2) Another option has been to identify a handful of actual cases, remove identifying names, and use them to illustrate specific theoretical points. (3) At the other end of the spectrum we find a scant number of statistical studies, which--by their very nature--offer little insight concerning the ebb and flow of verbal and non-verbal cultural cues, situational context, and contemporaneous awareness of a theoretical framework. (4) The law student reports summarized in this Article describe a view from the middle ground, drawn from more than 125 cases involving minority parties or mediators. The mediators changed from year to year, as did the parties, but the cross-cultural foci in the mediator reports remained the same. This Article uses these clinical analyses of session dynamics to inform theoretical analysis, rather than the reverse. This review focuses on qualitative empirical experience rather than quantitative empirical measures, and makes no claim to statistical validity.

Part I of this Article provides background information regarding a classic line of debate concerning race and mediation process design. The Article then identifies how the Oklahoma Supreme Court's mediation program has confronted the major objections raised by critical race theorists through court rules that make concern for actual and perceived fairness a cornerstone of the mediator's ethical obligation. To assure that this principle becomes more than mere hortatory language, the court-connected program has institutionalized behaviors designed to curtail prejudice through practical instruction from the following: a standardized court mediator training manual; a court-sponsored process for mediator supervision; continuing mediator education to reinforce program best methods; party feedback on satisfaction with services rendered; and an administrative mechanism offering parties a venue to enforce claims of bias in the mediation process.

Part II begins with an overview of the project design and the mediation clinic where the multi-year analysis was implemented. The student reports analyzed elicited observations testing cross-cultural theories about mediation. Part II summarizes the responses grouped around themes that emerged from the research material. This offers a deeper, richer view than most studies to date, but cannot provide parallel details directly from the parties. Recognizing this limitation, Part II identifies trends in these mediator observations, allowing the "voice" of the participants to speak whenever possible, without jeopardizing anonymity.

Part III concludes with an examination of the preliminary lessons learned in this four-year experiment. These findings indicate new layers of complexity in the evolving structures for court-connected mediation. The alternative dispute resolution ("ADR") field has awakened to the fact that the standard model of mediation assumes a balance of power between the parties, and that this is a false assumption in most small claims court cases, particularly in urban areas. If a court-connected mediation program seeks to be a vehicle for justice, it must consider power imbalance not only in terms of racial or ethnic demographics, but particularly in terms of socio-economic class. Further, court administrations must identify cross-cultural issues broadly and make non-bias a meaningful priority in the selection, training, and supervision of mediators. Lastly, while mediators can be trained to identify and accommodate cross-cultural differences in perception and presentation, the capacity to redress serious imbalances of power due to culture or class requires the active involvement of an attorney or judge.

1. THE CRITICAL RACE THEORY ("CRT") CRITIQUE AND RESPONSE BY THE OKLAHOMA SUPREME COURT'S EARLY SETTLEMENT MEDIATION PROGRAM

   1. The CRT Critique

      1. The Classic Race-Oriented Critique of Mediation

         In 1985 Professor Delgado cautioned against wide scale adoption of mediation pursuant to a doctrine that privileges peace--court-referred mediation that is ostensibly voluntary--over justice. (5) This view remains consistent with that of many other scholars during the period examined in this Article, who do not claim a race-oriented critique. If a so-called "multi-door court house" values fairness, court dockets cannot consider mediators to be fungible with judges. Each brings different skills to different cases, and dockets should be managed with recognition of those differences. (6)

         Delgado took this a step further, arguing that if ADR is to grow "consistent with goals of basic fairness," the growth must be shaped according to measures that look primarily to the potential for racial prejudice. (7) Race was deemed sufficiently pervasive and invidious as to overshadow most other considerations, (8) To raise awareness about the need to address racism in proposed multidoor court house projects, Delgado urged that areas of law and types of ADR be grouped to identify where "the dangers of prejudice are greatest." (9) Those cases should be directed solely "to formal adjudication" on the assumption that only a judge working with attorney advocates speaking on behalf of minority parties can protect against racism.

         Delgado acknowledged the possible existence of cases where the risk of racial prejudice might not be "so great as to require an absolute ban." Still, he argued that "checks and formalities must be built into ADR to ameliorate those risks as much as possible." (10) Then and now, this classic race-oriented critique posits that formal adjudication offers mechanisms of civil discovery, long-arm jurisdiction, and discovery administered through trained judicial temperament that "may equalize power and opportunity among litigants."(11) Yet, simultaneously, CRT challenges the American trial system as being fundamentally biased against racial minorities. (12)

         Delgado's article noted a vital limitation that he and subsequent others have relegated to the sidelines of the debate. In his comparison of formal adjudication procedures with mediation process dynamics, he considered "only the safeguards afforded parties when their dispute actually goes to trial." (13) This assumes no safeguards exist for the overwhelming majority of cases that, as Delgado acknowledges, "do not go to trial, but are settled" and indeed Delgado condemns settlement negotiations as "relatively unguided and incapable of promoting public goals of the law." (14)

      2. The Jurisprudential Debate: Micro & Subjective vs...