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VOL. 77 PART 5 SEPTEMBER 2019
b. After forming an initial hypothesis from reading the mediation
briefs, force yourself to come up with at least one alternative
theory of the case. Take a stab at pre-determining
topics and issues that should be covered during the mediation
before the parties’ characteristics have been revealed.
c. Once all parties are in the same room, there is no more potential
to employ a “blind” process, but at least you are now aware
of and sensitive to the issues that may have inherently eluded
you. Your biases will be much more apparent and presumably
easier to identify at this point.
d. Deliver a structured introduction to the parties and set a climate
for the mediation, incorporating a discussion of unconscious
bias as you see fit.
e. Expose yourself to different, counter-stereotypical people and
situations, whether that be face to face or through imagery.
Inter-group contact and exposure to counter-stereotypical
examples have been shown to diminish unconscious bias.13
Even so much as brief visualization exercises to this effect
have been shown to change scores on the IAT.14 This can be
especially effective if done just prior to a mediation.
The bottom line is we are all unconsciously biased and we need to accept
that as a starting point. We have developed that way out of necessity.
When clients first come into a lawyer’s office for assistance or into a mediator’s
boardroom to begin settlement discussions, they carry with them a
complicated past laden with various expressions and impacts of unconscious
bias. A client with a workplace claim may have been experiencing
the impact of unconscious bias since the second they applied for employment.
This is to be expected, but it can also be diminished through the
practical steps we have outlined. Just as with every other way of thinking,
if we can become aware of the unconscious biases we hold and accept that
we hold them, we instantly become empowered to do better and quite possibly
1. See Carol Izumi, “Implicit Bias and Prejudice in
Mediation” (2017) 70:3 SMU L Rev 681.
2. See Timothy D Wilson, Strangers to Ourselves: Discovering
the Adaptive Unconscious (Cambridge,
Mass: Belknap Press, 2002) at 24.
3. See David H Rakison & Yevdokiya Yermolayeva,
“Infant Categorization” (2010) 1:6 Wiley Interdisciplinary
Reviews: Cognitive Science 894.
4. See Antony Page, “Batson’s Blind-Spot: Unconscious
Stereotyping and the Peremptory Challenge” (2005)
85:1 BU L Rev 155 at 185–90.
5. See ibid at 186.