Thinking about fairness & achieving balance in mediation.

Author:Burns, Sarah E.

Commentators and practitioners have questioned the possibility of achieving social justice through alternative dispute resolution ("ADR"). If fairness, particularly to an underrepresented group, is elusive where the outcome is leveraged by legal rights and decision-making is open to scrutiny, the prospect of fairness without those features seems doubly dim. (1) While increasing sophistication of alternative dispute problem-solving has proven its importance to achieving social justice, (2) the concern in each ADR situation remains that the supposed neutral third party (3) may not be neutral, and that the power dynamics among parties operate to disadvantage the already-disempowered. (4)

The aim of this Article is to help guide mediators' efforts to achieve real fairness and balance in practice. The thinking offered here is rooted in extensive cognitive research in the public domain, and my more than thirty years of professional practice and training as a teacher, lawyer, discrimination law litigator, (5) and social scientist (6) devoted to answering why we discriminate unfairly and what we can do about it.

Most recently, I have considered these questions in training law students how to mediate employment cases. New York University School of Law has been fortunate to team with New York City's Office of Administrative Trials and Hearings ("OATH"), (7) which established the Center for Mediation Services (8) (the "Center") to mediate employment disputes arising in New York City agencies. City agencies have the option of referring employment disputes to the Center for voluntary mediation? These disputes include disciplinary matters, co-worker conflicts, and claims of discrimination or harassment that have not culminated in the loss of tangible employment benefits.(10) Students in NYU Law School's Mediation Clinic co-mediate with Center mediators. (11)

The strategies proposed in this Article are a work in progress. I first developed the guidelines discussed here to give law students, and other Center mediators, ideas for balanced mediation. Mediating in any urban setting, but most particularly New York City, requires that the mediator have methods to work productively within a wide variety of group differences. This is doubly important when the mediation involves charges of discrimination or harassment, because the mediator needs to understand dynamics of difference and must help the parties channel those dynamics constructively. (12)

Drawing from research in social psychology, linguistics, and cognition, I outline sources of bias and some strategies that a facilitator might use to manage his or her own bias and that of mediation participants. The discussion concentrates on dynamics related to categorization, attribution, use of metaphor, norming, and framing, which I refer to collectively as "cognitive efficiencies." As to each of these, the facilitator must first understand how such a process factors in to his or her own thought and communication and then how the same process influences the thought and behavior of mediation participants. Accordingly, Part I discusses strategies to manage cognitive efficiencies in one's own thought and communication, and proposes a few strategies for addressing similar sources of bias as they might be presented by mediation participants. Part II concerns handling of the emotional dynamics of discrimination.

This Article should be read as a proposal for further thought and inquiry. Any one of the five sources of bias, as well as others not discussed here, could be the basis of intensive research and training. This Article is meant to mark the beginning of such inquiry.


    The approaches outlined in this Section could be characterized as helpful to managing our cognitive efficiencies. (13) This Section describes some key cognitive efficiencies, illustrates how they operate to produce bias in thought processes, and shows how, if not managed thoughtfully, they can result in unfair behavior. The goal is to help the mediator observe and manage his or her own cognition in order to produce a more balanced and fair facilitation. The advice offered would apply to any decision-maker, including judges or teachers, but this Section focuses only on the facilitative role of mediator to simplify the discussion.

    As a culture, we value and reward positive knowledge and decisiveness. (14) Positive knowledge refers to the application of substantive content to a problem. Generally, our education is focused on acquiring positive knowledge and related skills. In doing this, we employ a complex set of cognitive efficiencies--mental processes of simplifying, organizing, and processing information.

    But positive knowledge is only part of human intelligence. The other, often more difficult intelligence, at which we are seldom formally trained, depends upon skill in managing our cognition, emotion, and interpersonal relations. (15) These skills require us, among other things, to recognize that cognitive efficiencies are but one set of thinking tools that can, if deployed thoughtlessly, impede creativity, understanding, and communication. Essentially, the cognitive management discussed in this Article involves momentarily suspending action in response to input so that we can mitigate tendencies of bias that are built into cognitive efficiencies. Because cognitive researchers have identified patterns inherent to certain cognitive efficiencies we can, to some extent, anticipate and compensate for their normal operation.

    The mediator's job is to observe communication processes and to assist the parties in identifying obstacles and making informed choices about how to respond. Facilitation is the helping role that most emphasizes skills of executive management, and most de-emphasizes applying positive knowledge to the problem presented. Executive management in this context refers to overseeing and directing the dynamics of a process, (16) which may be internal to the person or external to personal interaction. For example, identifying, planning, and reflecting upon the stages of a project would be executive management; implementing the steps of the project would not. It is easier to concentrate upon acquiring and applying the cognitive management learning when one is not also playing the roles of information source, expert, ultimate decision-maker, or actor in charge of implementation. Accordingly, the facilitative mediator's role is an excellent context for learning and practicing cognitive management.

    This review will cover five general aspects of cognition. The first is categorization--essentially, naming our world. The second is attribution-explaining our world. The third is metaphor--orienting our world. The fourth is normative--prescribing behaviors. The fifth is framing.

    Narrative, or story-telling, is also an essential cognitive process that separately organizes our thinking and functions in tandem with each of the other cognitive strategies. It deserves separate attention and, as a fundamental cognitive organizing source, has received an excellent initial examination in other works by mediation practitioners. (17) The stories that we tell ourselves and each other about "how the world is" or "what human nature is" fashion our own lives and the lives of others. (18) To the extent that a mediator's or a party's thinking is based upon one or more stories whereby inequality is justified or necessary, narrative will be a prime source of bias in the mediation process and would need to be addressed for fairness to be achieved. (19) Narrative is only covered in this Article, however, as it relates to the five other cognitive efficiencies. It is discussed on the premise that many dynamics of inequality and unfairness can be addressed by managing cognitive efficiencies without substantively addressing inequality narratives.

    Each cognitive efficiency topic is the subject of vast bodies of research and writing. This Article offers a simple introduction coupled with some thoughts about practical application. Professional practice of mediation, as well as many other fields, could be improved by systematic application of deeper learning about each of these subjects. That said, I have found that even the simple introduction and considered application of the principles discussed here improves practice. (20)

    The information resulting from discussion of the five cognition mechanisms has two related uses. The first use is to improve one's own skill at recognizing bias arising from one's own cognitive efficiencies. Developing this awareness will also promote the second use, that of helping others overcome the obstacles to communication that cognitive efficiency creates. Part I is divided into two subsections based upon the two uses. Section A outlines some key features and dynamics of the five cognitive processes; the purpose is to help the reader monitor and manage the biases inherent in their use. Each subpart of Section A includes a key practice recommendation and a discussion of the cognition features to watch for in implementing that recommendation. Section B illustrates facilitation tools that the mediator might use to assist others in getting beyond the obstacles that arise from cognitive efficiencies in operation. The purpose is to demonstrate the utility of this cognitive management approach. It is not to suggest that other factors-individual interpretation, cultural differences, and social values, for example--are not relevant or important to interpersonal problemsolving.

    1. Mediator: Managing One's Own Cognition

      This Section will discuss the cognitive efficiencies and strategies to manage them. None of the guidance offered here will be useful if the mediator is not committed to fairness and non-discrimination. Accordingly, the first and most fundamental practice recommendation concerns that goal.

      Practice Recommendation 1: Affirm that your goal is to be fair and...

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