Sunday 21 June 2020

MEDIATOR AND THE NEED OF NEW PARADIGM IN MEDIATION ETHICS By Vrinda Agrawal


Mediation is a dispute resolution process where the parties reconcile by seeking assistance from a trained third party known as mediator who assists them in reaching a common ground and settle.
It takes place in an informal environment but yet, is a formal setting. Cases which are suitable for mediation are disputes in commercial transactions, personal injury, workers labor or community relations, divorce, domestic relations, employment or any other matters which do not involve complex procedural or evidentiary issues which could be dealt only in traditional courts.
Mediator plays a vital role in the process of mediation. As it is the mediator who examines the issue of dispute between the parties, facilitates dialogue and the process of mediation and provides assistance in reconciling both the parties by helping them reach to a common ground.
It is very important for the mediator to have a various set of specialize skills along with the advance knowledge of laws and regulation,work experience in the focus area and mediation training.
These professionals work outside the court system and not in a traditional setting so the award and the process to reach to that award should be different as well. To gain a mediator certificate, a person is required to have a degree in the area along with a training of 30-40 hours.
A mediator is required to have a certain set of skills which include alertness, patience and tact, credibility, adaptability and perseverance. Along with soft skills, a mediator is also required to not act bias and work ethically. An issue which is not been addressed in the theory is the biases of a mediator.
A mediator exercises a great deal of influence as to what will be the mediation award so it  is very important for him to not be bias and carry out the whole process ethically. The essence of mediation depends on the neutrality of the mediator.
 A total neutrality means that there was absolutely no biases or prejudice in the part of the mediator, procedural and outcome neutrality.
Mediation has grown to be a preferred way of dispute resolution over traditional courts and we are moving forward towards making it smoother and accessible. The widespread and the success rate make it more popular than ever.
But the not so discussed issues of mediation ethics throw us leaps back. It is the duty of the mediator to avoid any type of biases or the appearance of one. Mediator needs to have a high level of awareness about the impact his words or actions leave on both the parties and that those words and actions are neutral.

Implicit bias and Prejudice in Mediation

Implicit biasesrelates to social cognition where our brain on the basis of characteristics, categorizes people into various groups and uses schemas to sort people into group. This mental process is unconscious and the person if often unaware about it. We do this categorization on the basis of various types of stereotypes which prevail in our society and thus, have a strong hold over our mind set.
This stereotype influences the actions and decisions of the mediator unconsciously. Mediators are highly likely to be leaned towards the group they relate themselves to and be a little bias to the party of different group.
Treating a party more favorably results in a biased result even if both the parties win, there is a high change of the other party or the less favored one gaining disproportionately. Prejudice for a particular group or being implicit bias leads to forming a belief system of their own. The discussions and evidences shown are then, the mediator over-relays on the evidences which contribute to the confirmation of the pre-established belief system.
Any information contradicting to it is been ignored or is been over-shadowed. It is very important for the mediator to always aware and alert about this and not let this affect the proceedings.


Cognitive biases and itsreduction strategies
A cognitive bias is a systematic error in thinking which occurs when people are processing and interpreting information in the world around them. It affects the decisions and judgments that they make. Cognitive biases often corrupt the decision-making of the mediator and stop them from giving a fair and just decision.

The biases may be exaggerated in mediation because the heightened emotions common in conflict often cause people to react impulsively rather than slow down to analytically think and communicate. The anchoring bias occurs when people make assessments and drive decisions based upon earlier numbers that have been used, despite their accuracy. 
Some of the most common in mediation include confirmation bias, reactive devaluation, fundamental attribution error, selective perception and memory, risk aversion, loss aversion, anchoring bias, sunk cost bias and optimistic overconfidence.
The mediator has to be very careful about his actions and reaction and also has to critically analyze every aspect of the case to avoid being bias. The mediator should also use objective raw data to eliminate having any biases. 
Legal bias is not a new concept. It has prevailed through ages but it doesn’t mean that it is not alarming. It is very important for this process to be free from biases and be ethical in every way possible. 

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