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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