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Mediators' List Servs and the Rating Game

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The pernicious effect of rankings on the administration of justice

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Mediators' List Servs and the Rating Game

  1. 1. Mediators List Servs and the Rating Game Ellen Waldman Susan Exon Victoria Pynchon
  2. 2. Ethical Mandates| Impartiality • Standard II. Mediator must conduct mediation impartially - behav[ing] in a fashion free from favoritism, bias or prejudice • Prejudice/partiality can stem from : participant personal characteristics, background, beliefs, conduct during mediation
  3. 3. Ethics Mandate | Conflicts of Interests • Standard III. avoid actual conflict and appearance of conflicts – with mediation participants – with subject matter • Conflicts must be disclosed. – Even with party consent, mediators must forbear when conflict appears to threaten integrity of mediation
  4. 4. Welcome to Consumer Attorneys of San Diego (CASD), see the menus above to find valuable information and news, to use our many tools and services, and to learn what CASD is doing to serve you.
  5. 5. The SDDL listserv is not to be used to praise or criticize members of the Judiciary as we wish to avoid any suggestion of bias. With regard to inquiries on interactions with Judicial officers or attorneys, please reply or interact directly with the requesting individual as opposed to reply-to-all responses
  6. 6. CASD List Serve A robust networking tool that puts the research power and experience of more than 800 of Southern California's best trial lawyers at your fingertips. Ask questions, discuss case strategies and gather information via email. List postings are archived and fully searchable. This service is available only to CASD Attorney Members
  7. 7. Proud to Support the San Diego Defense Lawyers
  8. 8. The Accelerator Effect
  9. 9. Mediator Rating is Not a Problem Mediation is a flexible process, as are mediator styles, the mediation’s procedural progression, and party self-determination. Whether online or not, rating mediators is part of the voluntary, consensual nature of mediation.
  10. 10. Standard I: Self- Determination “A mediator shall conduct a mediation based on the principle of party self- determination. Self- determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self- determination at any stage of a mediation, including mediator selection . . . .”
  11. 11. Self- Determination in Selection • Subject matter expertise • Geographic location • Mediator style/orientation – This factor was a strong desire of attorneys – Most preferred directive/evaluative mediators
  12. 12. A. “A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.” B. “A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”
  13. 13. Flexibility • No standard precludes a mediator from serving in a directive/evaluative capacity. • Being directive/evaluative does not impinge on mediator impartiality.
  14. 14. Impartiality • Offer several alternatives; • Maintain distance from parties by predicting how a judge or jury might decide; • Provide assessment in joint session; • In caucus, provide only invited assessment w/out pushing any party to adopt; • Discuss legal ramifications w/ the parties in a neutral manner to diffuse advocacy
  15. 15. Impartial Mediator While Evaluating • Remain passive as to substance of mediation; • Use a Socratic method of questioning; • Evaluate merits of a “no agreement” alternative; • And more . . .
  16. 16. “A mediator shall conduct a mediation . . . in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.”
  17. 17. • Consumer attorneys want directive mediators. • Mediators often ask attorneys if they are seeking specific assistance such as providing a reality check to a party or some evaluative technique. • No difference between asking attorneys directly or having them discuss their preferences on a listserv?
  18. 18. 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 • The “justice 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.
  19. 19. 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.
  20. 20. 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
  21. 21. 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.
  22. 22. • 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
  23. 23. 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
  24. 24. • 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
  25. 25. 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.
  26. 26. Lists Amplify Subjective Bias • Evaluations of group members are strongly affected by the extent to which they support in-group norms. • Group evaluations impose social pressures on others to reinforce those norms. • Threats to social identity among members of in-groups lead participants to attempt to restore the in-group's norms by, for instance, derogating in-group members who represent a threat to in- group cohesiveness. The Role of Categorization and In-Group Norms in Judgments of Groups and Their Members, 75 Journal of Personality and Social Psychology 976 (1998)
  27. 27. • 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.

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