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One Year Later: What George Floyd's Death Means to the Future of Mediation

More than a year has passed since George Floyd's death ignited intense feelings throughout the world. Despite COVID-19 lockdowns, the events surrounding his death led to protests, riots, calls for police reform and accountability, demonstrations, and a movement demanding an end to the long history of police violence against black people in the United States.

A year ago, Forbes magazine published an article by David Rock and Khalil Smith of the Neuroleadership Institute, discussing how Leadership on many levels has failed our society, and how leaders on any level, be it organizational leaders, team leaders, community leaders or even family leaders can make a difference.

Foremost, it is imperative to recognize that people are not all the same, and that they will not look at events and circumstances in the same way. These differences have the potential of creating disagreement and rifts. Sometimes the rifts occur along cultural, economic and racial lines, something which has detrimentally affected our society for too long. It is time for change, but what form can this change take and how can it be effective? Rock and Smith explain three steps, based on science, that must be put into effect, in order to effect positive and relevant change. As Lucia Kanter St. Amour–a mediator who is also a member of the Neuroleadership Institute and a specialist in negotiation and dispute resolution–aptly pointed out in a follow-up article on mediate.com, "Notably, all three of these steps call upon skills honed by mediators and facilitators, making our potential role in helping to lead change highly relevant." Here are the steps.

First, make sure that people feel heard, not just by creating a place and time for discussion, but by truly listening. We all bring unconscious biases with us, which interfere with understanding another person's view. Sometimes, we listen with the goal of formulating a reply. Other times, we relate so well that it brings up similar experiences in our lives, which takes focus away from listening to the other person's experience. As mediators, we can use our skill in mindfulness, focusing on the present moment and on the other person's words and feelings, listening with the intent to understand.

The second step is to unite widely. Listening is the crucial first step, but it has to be followed by leaders uniting people around shared goals. We tend to see the goals of others as competing with our goals. Lucia Kanter St. Amour makes a strong point, explaining that humans often interact in a simple, binary categorization which is called "in-group" and "out-group." This categorization comes from a paper, Organizational Identity, published in 1979 by H. Tajfel, J.C. Turner, W.G. Austin and S. Worchel, in which they proposed that there are mental processes involved in evaluating others as "us" or "them." This central in-group (us) and out-group (them) hypothesis of social identity theory posits that group members of an in-group will seek to find negative aspects of an out-group, thus enhancing their self-image. When someone is considered being from the "out-group," we tend to consider their input or ideas as unimportant, inferior, or wrong. When we consider someone as part of our "in-group," we think of them as being "like us" and aligned with our views and goals. She further explains that this can go so far as to include actions being processed differently between people, such as a black man reaching for a cell phone, an action which a white police officer may process as the man reaching for a weapon. But leaders must actively and proactively be inclusive of all people, not just those in their "in-group." When we consider people as all having the same goal and not as having competing goals, we can feel empathy for their issues, which is lacking when we think of them as "out-group" members. Once people feel they have a common purpose, their mind will process the data in a new way. We need to come together and remind ourselves that we are more alike than different. In this way, we end up with common objectives, something that we, as mediators, can help with when working with disputing parties.

The third step, according to Rock and Smith, is to act boldly. To do this, we must use our voice, as leaders, to make a difference and help people move from indignation and distrust to common goals and solutions. We should seriously commit to diversity as a strategic imperative, to examine our organizational systems, and to seek opportunities that will increase fairness while mitigating any biases that prioritize ease, immediacy and self-interest. We should do what we can to put ourselves in the shoes of the people affected by the events that bring them suffering and look for diverse perspectives about the actions we should take. This may be uncomfortable in the short term but is in the interest of long-term planning. As mediators, we are already listening to the parties in conflict to acknowledge their issues and feelings, with the aim of moving toward a settlement.

Yet, while these steps are important in helping to guide our thinking and processes as we work to effect positive change, as mediators, we should not lose sight of the historicity of our field. A good deal has already been learned and improved. In 2008, Phyllis Bernard, Professor of Law at the Oklahoma City University School of Law, published an article in the Fordham Urban Law Journal which delved into the history of and observations within published papers by critical race theorists dating as far back as 1985, such as Professor Richard Delgado, an American legal scholar who teaches civil rights and critical race theory at the University of Alabama School of Law, and who is a founder of the critical race theory school of legal scholarship. She reviewed some 300 mediation clinic analyses from a qualitative 4-year study, while asking important questions such as, "Are minorities unlikely to achieve fairness in an informal process moderated by a third-party neutral arbitrator (or mediator?)" And, "Should minorities instead look to the formal process of litigation, relying upon the judge to assure fairness?" While the original 1985 study by Professor Richard Delgado, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, did not specifically address mediation in its inquiry, Phyllis Bernard's study did.

As expressed by Bernard, "the "real world" concern surrounding the academic debate regarding minorities involved in a mediation process versus a formal litigation process becomes: What is the true cost when cases are diverted from public court rooms presided over by judges to mediations conducted behind closed doors with third-party neutrals?" In quantitative terms, we can measure the success of mediations referred by the courts in terms of cost savings and settled amounts. What is not as evident is the qualitative success or failure of court-referred mediations. Do the dynamics of racial prejudice outweigh the benefits of party self-determination?

In 1985, Professor Delgado cautioned against adopting mediation on a wide scale when that adoption privileges voluntary court-referred mediation that is purportedly voluntary, over justice. The risk of prejudice is highest when an in-group member confronts an out-group member, Bernard tells us, as well as when the confrontation is direct and not through intermediaries, when the setting is closed, when few rules constrain conduct, and when the dispute relates to a personal matter as opposed to an impersonal one. The risk, Bernard says, is "of a "high status" party introducing innate prejudices outside of the formal court setting which would constrain behavior, while a "low status" individual will be more likely not to press for his claim as energetically." However, as mediators, it is an integral part of our training, our role, and our obligation to each party, not to allow that to occur. Mediation has evolved considerably since 1985 and there are many case studies to prove its effectiveness and success within our legal system.

Disputes may be complex and not fully motivated by monetary settlements. The individual's needs may focus around a subjective sense of fairness, based on the dignity with which they believe they were heard and whether the proceedings resulted in a practical solution to their problem. These two perspectives do not need to be in contradiction with one another. The rule of law plays a role at the micro-level, providing leverage, which would be absent otherwise, to a less powerful party. Delgado and Bernard point out that the critical element for that party is knowledge. Each party needs to know what documentation they require to conform to the strictures of the law or to substantiate defenses and claims under the law, as well as what protections the law affords. The mediated settlement may not be expected to conform to the absolute constraints of the law, but the law still provides suitable guidance when parties' concepts of moral conduct are not aligned. The parties gain this essential knowledge through literacy provided by "belonging" to a higher socio-economic class, or through searching for counsel from attorney or non-attorney sources regarding law.

Financial access to legal representation makes a world of difference when one considers whether the processes emphasized by critical race theorists serve as protection for minorities - or as a weapon against them. As Owen Fiss, Sterling Professor emeritus at Yale Law School points out, "the person who is able to afford a lawyer can readily use the formalities of trial either to rebalance power or to shift power fully to their side. A party who cannot afford counsel may be bereft of justice, too." This does not marginalize the issue of race and prejudice. It simply takes fully into account the socio-economic reality of the United States.

Thus, we can see that more than race alone is involved in the ability–or lack thereof–of the legal system to provide fairness to parties in legal disputes. It is of interest that in her paper, Bernard presents her conclusion that her 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 cases, so long as the mediation is understood as an adjunct to the judge's role, not as a replacement."

Critical race theory challenges the American trial system as being biased against racial minorities. Delgado's article pointed out a crucial limitation that he and others have left out of the debate. When comparing the formal adjudication procedures with the dynamics of the mediation process, he considered "only the safeguards afforded parties when their dispute actually goes to trial." This assumes no safeguards exist for an overwhelming majority of cases which, "do not go to trial, but are settled outside of court."

With minorities, who may lack the knowledge, social status or economic means to gain an equal footing within the legal system–not to mention cultural differences or needs which might be misunderstood or not acknowledged during a court trial–it falls upon mediators, their training, knowledge and skill, to take up the challenge by creating a level playing field and provide an environment of fairness to parties who seek to settle cases through alternate dispute resolution. Both the judge and the mediator have a cooperative role to play with each other. During mediation, parties submit their arguments through the mediator who engages them in a formalized style of communication. This gives rise to the parties' subjective perceptions of the dispute, which may differ significantly from the legal captioning of the case. Mediators are trained to facilitate and explore the feelings underlying the documented facts. Mediation often focuses on culturally framed issues in relationships that may be out of place in a trial context, such as respect and morality. The mediator facilitates the development of a practical settlement based on the needs and capabilities expressed by the parties, which may or may contravene the strict expectations of the law.

Assertions of self-determination by the parties and their right to justice are central to the debate on fairness and formality. If justice were simply measured as the financial gain or loss in mediation, as opposed to the probable outcome in litigation, the answer would be obvious. However, if a system genuinely values a party's right to have their say while respecting, as Bernard describes, "the often non-linear, storytelling styles common to many ethnic cultures and among some women," then the system must acknowledge that justice is more than a monetary award. In harmony with the profound traditions of many ethnic peoples, justice is a process of human interaction. The key outcome may not be money. In the end, a party's need might be respect, respect from the adversary or mediator, or perhaps from others involved in the dispute, such as colleagues, friends, and family members. Thus, in certain cases, the most essential function of the mediation process may be to help the parties recover or maintain their dignity, as the real aim may be to help everyone involved save face. Indeed, Bernard tells us that, while the U.S. struggles to evolve into a truly color-blind society where both the mediator and the parties do not notice nor have an opinion about color, it is likely that all participants notice color. At a certain point during the mediation, one or more of the participants will choose to make color a secondary or non-consideration. Or perhaps the mediator is equally likely to steer the parties in a neutral direction through the application of mediation protocols.

The key to the success and impartiality of mediation is to define the role of mediation in terms that go beyond merely monetary results and settlement amounts. We all need to support the formal mechanism for interpersonal communication to resolve part or all of a case that has gone to court. A combination of complementary services, delivered by the judge and the mediator, can protect both the objective aim of the rule of law and the subjective needs of the parties. When trying to find a balance in court sponsored mediation services, it is important to begin by understanding justice not merely as a concept or something to aspire to, but in terms which bring clarity to a circumstance where true justice can be accomplished through the guidance of leaders who value all parties as a relationship and as a process of human interaction. That is the way we, as individuals and as a community, need to see and deal with each other. We need to create an inclusive "in-group" where no one gets left behind.

As Bernard points out, "the minority person is first and foremost a person, not a category." In mediation, they may play an active role in holding each other accountable. Under appropriate conditions, this problem-solving party may reach a conclusion and closure on terms that he deems satisfactory based on his own priorities. Perhaps that is not the resolution that others, such as lawyers, judges or legal scholars, would have chosen on their behalf, but it is a way of respecting the choices of the minority person, believing that they are neither handicapped nor an eternal victim. But it is a way of respecting the choices of the minority, believing that they are neither disabled nor an eternal victim. All those involved in the legal system need and deserve easy access to some form of help or advice before mediation, even those who cannot find affordable legal services. For minority parties to have a chance of obtaining justice, our society must equalize the rules of the game identified in Delgado and Bernard's studies as the most harmful: the lack of knowledge. For the mediator, an important first step comprises making the effort, as Rock and Smith suggest, to listen, to unite widely and to act boldly.



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