How can mediation be saved? This is the question that Nancy Welsh attempts to answer in her recent article, “Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation,” (SMU Law Review, Vol 70, 2017).Welsh laments the lack of self-determination in mediation and looks at social science research to question whether mediation really provides procedural justice in a world of inequality, bias and prejudice. Gilat J. Bachar and Deborah R. Hensler take a slightly different tack in their article, “Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know” (SMU Law Review, Vol 70, 2017). They look at empirical research on ADR to see if there is evidence that ADR does indeed facilitate bias and prejudice.
In her article, Welsh argues that the promise of mediation to ensure self-determination isn’t being upheld. Instead, she claims that self-determination has been sidelined by judges and lawyers, and calls for reform have fallen on deaf ears. So Welsh turns to procedural justice, which includes having voice, being heard, being treated in an even-handed manner and being treated with dignity, as another way of providing self-determination. If the elements of procedural justice are present, the parties are more likely to have self-determination because they can have an open discussion that leads to an outcome that truly represents the interests of all involved.
The provision of procedural justice, however, is not straightforward. Recent social science research has found that the provision of procedural justice can be impeded by inequality, bias and prejudice. First, one’s experience of procedural justice and how much it influences one’s view of the substantive outcome is affected by one’s status. Procedural justice is more important to those of lower status, who use it to determine if the outcome was fair. Second, one’s ability and desire to have voice is dependent upon one’s status. Third, those with lower status may not be heard by those with higher status. Indeed, research has found that those with higher status are less likely to hear those of lower status due to their prejudices and biases.
Welsh proposes a number of ways to address inequality, bias and prejudice, in the hope that mediation can live up to its promise of providing procedural justice, substantive justice and self-determination. These include: increasing the diversity of the mediator pool and training mediators to recognize and address implicit bias; utilizing pre-mediation caucusing to build trust; encouraging active listening in mediation; promoting the use of online tools for communication (as research has shown that people with lower status are more likely to exercise voice using online media); and empowering mediators to avoid unconscionably lopsided outcomes.
Where Welsh looks to social science research to inform how prejudice and bias may play out in the provision of procedural justice in mediation, Bachar and Hensler examine empirical research to find evidence of prejudice and bias in mediation and arbitration outcomes. They looked at 38 studies conducted over three decades that looked at a variety of case types. They found that the studies arrived at “mixed and contradictory” results and lacked methodological rigor. Therefore, they could draw no robust conclusions from them. However, they believed that the results of these studies indicate that both women and minority men fare worse in mediation than white men. There is no research on racial or ethnic bias in arbitration, but recent research points to women – both parties and lawyers – faring worse than men in the process.
Both articles point to a need for a greater focus on whether inequality, bias and prejudice impact the provision of justice through ADR, and how they may be addressed. This intersection of ADR and prejudice is examined in the two 2017 ADR Symposium issues of SMU Law Review, which are definitely worth the time to read.