Lewinski: Filling in the blanks: A key to a successful mediation


By Michael J. Lewinski

Consider the following scenario: A police officer is stopped at the side of the road. A vehicle passes at a high rate of speed. The officer begins a pursuit. The driver of the vehicle sees the officer in pursuit and picks up speed. The vehicle runs one stop sign, then another. The officer continues pursuit with siren blaring. The driver of the vehicle speeds up, loses control and crashes into a tree.

Visualize the situation and the pursuit. Now answer the following questions:

Where did this take place? On a country road? In a city? Was the police officer a man or woman? How old is the police officer? What is the ethnicity of the police officer? What type of vehicle was speeding? A car? A pickup truck? A motorcycle? Was the driver of the vehicle male or female? Was the driver of the vehicle young or old?

None of these details were provided in the original scenario, yet each of us, in visualizing the situation, fills in the details.

Now, what if I told you the “rest of the story”? An 80-year-old white woman with dementia walked out of her home and got into the van of a plumbing company that was doing work at her home. The driver had left the keys in the van. She drove away. She was driving 45 mph in a 30-mph residential zone when she passed a male police officer on a motorcycle who was wearing a black jacket and a helmet. She was confused. She was concerned for her safety. She had no idea the person following her on a motorcycle and wearing a helmet was a police officer. She panicked and she sped up to get away from what she perceived to be a dangerous situation.

Although everyone was able to fill in the details of the original scenario, it is doubtful that anyone visualized a confused 80-year-old woman speeding down the road. In filling in the details of the scenario, we used our implicit biases.

Biases are exaggerated beliefs, images or distorted truths about a person or a group. They are generalizations that allow for little or no individual differences or social variation. We make conscious judgments about individuals or situations. We recognize we are making those judgments and we can work to avoid falling into that trap. But what if we are unaware of the judgments we are subconsciously making?

Implicit biases are attitudes toward people or stereotypes we apply without consciously doing so. Some scientists suggest that most of our actions occur without conscious thoughts. We react spontaneously in a complex world. This suggests that our implicit biases can play a significant part in our decision-making process.

Implicit biases are developed based on our personal histories and life experiences. They are influenced by, among other things, our geographical location, our parents, our education, our economic status, the schools we attend, the media we watch, what we read and our own personal life experiences.

The first step in dealing with implicit biases is to recognize that we all have them. Harvard University has developed an assessment to measure potential implicit biases in a number of different areas. You can take the assessment at https://implicit.harvard.edu.

In “Mythbusters Implicit Bias Edition: Clearing up the Confusion Surrounding Implicit Bias,” the Kirwan Institute at the Ohio State University (www.kirwaninstitute.osu.edu) suggests that implicit biases are activated involuntarily and beyond our awareness or intentional control. Nevertheless, implicit associations can more accurately predict behavior than explicit beliefs and thoughts.

An awareness of the concept of implicit bias and some self-reflection can help us to account for implicit biases in our judgments and decision-making. This is particularly important for mediators.

Basic mediator training warns against the inclination to prejudge a dispute and teaches mediators to avoid predetermining and then seeking to impose what the mediator believes would be a good resolution. Instead, the mediator should allow the parties to fashion their own resolution, unencumbered by the mediator’s personal judgment of what a good resolution would look like. To accomplish this, a mediator should strive for impartiality and avoid being influenced by his or her own biases and prejudices, whether conscious or implicit.

Implicit biases also should be avoided in attempting to read the position of the parties. Are you filling in the blanks with information from the parties or by making assumptions?

Finally, the likelihood of a successfully mediated result can be enhanced if a mediator is able to recognize the implicit biases that are influencing the perception of the parties and the perceptions of their attorneys. Addressing these biases can bridge the gap between the parties.

Part of this is perception and perspective. Traditionally, mediators invite the parties to view the facts not only from their own perspective but from the perspective of the other party. While expecting empathy in an adversarial situation may be too much to ask, if a mediator can get both parties to view the dispute through the lens that the other party is viewing the dispute, an opening for dispute resolution may be found. In order to get one party to see through the lens of the other party, a mediator may need to work through implicit biases.

Asking questions to help uncover implicit biases is essential. A question to one party about the party’s belief of the objectives and motivation of the other party may lead to the conclusion that the actions, objectives and/or motivations of the other party have been misconceived. It is often said that perception is reality. If the perception is wrong, then the parties may be open to seeing reality through a different perspective.

I had a mediation in which a 30-something man with a young family was in a dispute with an elderly widow over a property line. I represented the 30-something who had, in fact, built a shed that was partially on the property of his elderly neighbor. From my client’s perspective, it was an honest mistake and his neighbor was being impossibly difficult. A long-standing fence was thought to be the property line when, in fact, the property line was outside the fence. From the neighbor’s perspective, she was dealing with a young man with an entitlement attitude who was intentionally and disrespectfully trying to take advantage of her. She was not going to be taken advantage of! There would be no compromise — this young person needed to be taught a lesson! When both parties were able to get past their initial implicit biases about the motivations of the other, we were able to reach an amicable resolution.

We live in a global economy and an increasingly diverse country. This makes it even more critical that we recognize implicit biases and that we attempt to mitigate them. Mitigation or debiasing techniques can include continuing to learn about those who are not like ourselves, perspective-taking and exposure to counter-stereotypical situations and examples.

If asked again about the individual speeding down the road being pursued by a police officer, you might fill in the blanks differently, or you might realize that you should not try to fill in the blanks without the facts.•

Michael J. Lewinski is a partner at Lewis Wagner and an instructor with the Lacy School of Business at Butler University. Opinions expressed are those of the author.

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