THE ADVOCATE 695
VOL. 77 PART 5 SEPTEMBER 2019
THE “NEUTRAL PERSON”: A PARADOX–
ACCEPTING AND ADDRESSING
UNCONSCIOUS BIAS IN MEDIATION
By Kimberly Jakeman and Mollie Clark
Mediation is unquestionably one of the leading models of dispute
resolution and is used more often than ever before to
help parties conclude a wide range of disputes. Mediators
are assumed to be neutral, independent and impartial third
parties there to help facilitate a settlement between the parties to a dispute.
Mediators are to have no conflict of interest, no stake in the outcome and
no biases, and they are to avoid improperly influencing the parties. There
is, however, one major obstacle to reaching this ideal: mediators are human.
Humans intrinsically have unconscious biases. Counsel, clients and mediators
alike need to consider this established fact.
The good news is that unconscious biases can be changed.1 We can temper
our unconscious biases, but to do so requires awareness, mindfulness
WHAT IS UNCONSCIOUS BIAS?
To understand how to address unconscious bias we need to understand
what it means. Humans have well-developed brains and sophisticated psychology.
Our minds have developed in subtle, complicated and impressive
ways to help us survive and process information efficiently. One of those
developments has been referred to as “categorization”. Every second, we are
exposed to about 11 million pieces of information, but our brains can
process only around 40 at a time.2 So human brains, at a very early stage of
development, begin an unconscious sorting process,3 eventually allowing
us to filter all of the information available at any one moment, instantly categorize
what we can and leave our conscious cognition free to focus on what
actually requires it.
Categorization occurs across the board. No incoming piece of information
is spared from exposure to this process. We categorize movement.
Things that move by themselves are “alive”, and things that do not are
“objects”. We categorize furniture. Things that look like this are “chairs”,