How the mediator ratings game reifies and perpetuates sexism, racism and injustice in the legal arena.

1. Listservs of Injustice
The Reification and Perpetuation of
“Othering” Bias in Mediation

2. Purpose of the Civil
“Justice” System
• To addresses moral wrongs and
injuries that
– Are an affront to the victim’s value
or dignity
– Violate our norms of interaction and
social bonds
– Live at the nexus where one person
abuses her liberty at at the expense
of another’s security and well being,
• The “system” is
– a forum where a victim is given the
opportunity to negate the affront,
vindicate her own value and moral
worth, and restore herself to the
status of an equal.
– a legal regime that responds to
wrongdoing by vindicating the right
of the victim to hold the wrongdoer
accountable.

3. Subjective Reviews are
Fertile Ground for
Unconsciously Biased
Judgments
• In Rowe v. General Motors Co.,
the Fifth Circuit held that
• [P]romotion/transfer procedures
which depend almost entirely
upon the subjective evaluation
and favorable recommendation of
the immediate foreman are a
ready mechanism for
discrimination against Blacks
much of which can be covertly
concealed and, for that matter,
not really known to management.
We and others have expressed a
skepticism that Black persons
dependent directly on decisive
recommendations from Whites
can expect non-discriminatory
action.

4. Who Listservs Disserve
• Women and minority
mediators who are in short
supply outside the family law
and employment arena
• Women and minority parties
who are far better reflected
on the bench than they are in
mediation

5. Why Listservs Disserve
Women Mediators
Women are more harshly judged
than their white male peers
• When given identical descriptions
of professor behavior, students
gave professors they thought
were male much higher
evaluations across the board than
they did professors they thought
were female.
• When they told students they
were men, both the male and
female professors got a bump in
ratings.
• When they told the students they
were women, they took a hit in
ratings. Because everything else
was the same about them, this
difference has to be the result of
gender bias.
Judicial Performance Evaluations (JPEs),
ratings by attorneys have historically
exhibited bias against women and
minorities, due to patterns of lower
performance ratings by gender and
race.

6. • When given identical
work product, lawyers
routinely found more
mistakes in the work of
associates they believed
to be African American
than they found in
identical work
attributed to whites
• When given identical
resumes, employers
routinely rated whites
more competent than
blacks.
Why Listservs Disserve
Minority Mediators
JAMS Miami Mediators
Current JAMS Video
No Mediator of Color Represented

7. Participant Dissatisfaction
with Gender Differences in
Mediation
• When the mediator was a
different gender than one of
two parties
– the non‐matched party felt
that the mediation lacked
effective communication.
– the non-matched party felt
the mediator was being
judgmental and taking sides
• When the mediator was a
different gender than both
parties,
– the parties reported lower
levels of satisfaction with the
mediation process
– But they reported that
communication was effective
• Regardless of party gender,
male mediators were
– more often perceived as
taking sides than female
mediators
– More often considered males
to be less impartial.
http://ombudsfac.unm.edu/Article_Summaries/Fairness_U
nderstanding_and_Satisfaction.pdf

8. • When the mediator was a
different race than both
parties, the parties shared a
decreasing sense of optimism
over the course of the
mediation, lacking hope that
the dispute might be
productively resolved.
• When mediator shared race
with only one of the parties,
the other reporting feeling
judged by the mediator and felt
a lack of control in the
mediation process.
Participant Dissatisfaction with Racial
Differences in Mediation
http://ombudsfac.unm.edu/Article_Summaries/Fairness_Understanding_and_Satisf
action.pdf

9. Examples of the Way Listservs
Disserve Civil Justice
• Race is associated with
physician assessments of
patient intelligence, physical
feelings of affiliation toward
the patient and beliefs about
the patient’s likelihood of risk
behavior and adherence to
medical advice
• Blacks, Hispanics and women
are routinely undertreated for
pain based on physicians’
underestimation of their pain.

10. • Take the implicit bias test
• Pay attention to your tendency, if any, to seek out white men
for leadership/power positions, assignments and the like
• Work against your biases by including women and people of
color in your networks and on your lists
• Persist in asking “are there women/people of color” who can
do this job, speak on this panel” (the answer is always “yes”; if
it’s “no,” the nay-sayer hasn’t sufficiently diversified his/her
network.
• Go beyond listservs.