In January 2019, pop culture icon Jay-Z brought attention to a critical issue that has existed for decades but has rarely been addressed—that is, the lack of diverse arbitrators and the effect this has on fundamental fairness. While Jay-Z was not the first to speak up about this issue, his powerful voice was perhaps heard louder than those before him. This issue extends to mediators as well, given that both professions interact with parties to resolve disputes, and many professionals serve as both arbitrators and mediators.
This Article is focused on mediation, and while it touches briefly on the lack of diversity among available mediators, it primarily focuses on the perception of fairness and the lack of trust that can result therefrom. The concern is that a mediator may not be adequately aware of cultural, personal, and social differences between mediating parties and between the parties and their mediator. Potential differences between the parties and between their mediator could consist of, but are not limited to, gender, race, religion, creed, sexual orientation, financial means, physical disabilities, and visible or non-visible disabilities. This Article poses the question—how does a mediator’s conscious or unconscious bias with respect to cultural, personal, or social differences affect a mediation? Do parties still perceive mediators who differ from them in one of these areas as favoring someone who is more like the mediator in these ways? Simply put, without having some way to see oneself in their mediator or of knowing that their mediator has tried to become culturally aware and sensitive to other’s lived experiences, is there a lack of trust?
At the time of writing this Article, we find ourselves slowly crawling out of a global shutdown due to the Coronavirus pandemic that has taken approximately half a million American lives. We are immersed in what will be memorialized as a major civil rights movement after the very public death of George Floyd, as well as many others, at the hands of the police. Our environment is subjected to natural disasters on a more frequent basis. The very system that legal professionals have dedicated their lives to is being called into question every day by political leaders. Together with a plethora of other humanitarian and cultural conflicts, this time has been referred to as apocalyptic, and sadly, that adjective is quite fitting. Name-calling, rage, and echo chambers driven by the lack of neutral rhetoric are rampant. The American people appear to be involved in a culture war that breeds mistrust of those who hold different beliefs about fundamental principles related to race, gender, or sexuality—some altogether denying that marginalized people in our country are at any disadvantage. This is the United States of America.
The legal profession is uniquely positioned to tackle issues of equity both on the grandest of stages as well as in the smallest of interpersonal circles. Those individuals whom society trusts to resolve disputes are faced with an urgent opportunity to build confidence in the fairness of legal proceedings like mediation. This Article argues that more education surrounding differences in culture, individuality, and social background is necessary if parties are to resolve disputes with confidence, and that these differences must be understood and accounted for in mediation.
At its core, mediation, which is a subset of the Alternative Dispute Resolution (“ADR”) family, is a facilitated resolution structure dating back thousands of years. The idea that two parties may seek outside counsel to work towards resolution is embedded in cultures across the world. It is without question that the American justice system influenced modern mediation practices in the United States, while remaining a distinct process. In fact, mediation can be a welcomed reprieve from the costly “winner take all” litigation strategies implemented through much of the United States’ legal system.
Even though it has evolved for thousands of years, modern-day mediation is not a foolproof process or without room for growth. Part II of this Article focuses on the origin and process of mediation. Part III explores the importance of cultural competency and social sophistication in theory and practice. It considers the benefits that education can provide in helping mediators understand both the importance of perceiving and actually gaining awareness around differences in culture, individuality, and social background. Furthermore, through this education and awareness, mediators can establish the foundational trust essential to improving the prospect of dispute resolution. Part IV focuses on implementing this awareness so that mediation can better serve all parties.