- Apprentice Lawyer
- Legal Jobs
One beautiful summer morning in San Francisco, I hopped in the car with my co-mediator to drive to our scheduled day-long mediation. I had read and re-read the briefs the previous night and there was a nagging sound in my head which I couldn’t shush, but I was uncomfortable to bring it up lest I be branded biased.
You see, I had lived in America long enough by now, but I was still a brown Indian girl. The briefs submitted by one of the parties for that day’s mediation didn’t quite agree with my thought process. My prejudice led me to not trust the man because of his nationality and origin! But, I didn’t want to bring it up, much less discuss it with my white, Jewish co-mediator. So, I did what seemed smart at the time, I tried my best to shove my doubt in a deep dark corner of my heart as if it didn’t exist.
On that gorgeous drive, somewhere in the middle of discussing the weather and rating our weekend meals, my co-mediator blurted out,
“I don’t trust the brief today. I don’t trust anyone from that country.”
At the moment, it felt like something had hit me hard. My thoughts raced from being weirdly satisfied with the knowledge that I wasn’t alone in my reaction, to wondering if we should be recusing ourselves due to prejudice/bias. Her statement shook us both into the realisation that here we were, one lawyer and one ex-judge, both turned into mediators, avowed neutrals and yet carrying an implicit bias against a whole country! And we didn’t even know we were carrying it all this while until that statement came out abruptly.
But I am glad to inform that we had a very fruitful discussion and strategised on how we will help check each other’s reactions during the mediation and work effectively to overcome our bias. The matter settled well and interests of both parties were fully taken into account. And I am even more glad to have been able to recognise and address my implicit bias in a timely and correct manner.
Over the years, I have spent substantial time trying to understand how implicit biases work in the human mind and how, as a mediator, I can navigate them effectively to help my clients reach a successful resolution. It was with the help of the Implicit Association Test (IAT) series that I was introduced to at Harvard Negotiation Institute, that I truly understood the areas in which I am harbouring implicit biases.
To understand implicit bias, one has to appreciate that being a normal human entails having stereotypes pop up in our heads regularly. This doesn’t make you a racist, sexist, or whatever-ist. It just means your brain is working properly, noticing patterns, and making generalisations. We can see this at play in our day-to-day lives. We as humans are disposed to categorising and making patterns.
We experimented this in one of our mediator trainings in New Delhi recently. We distributed different colour and shape stickers to our participants with the instruction of forming groups and without giving any direction as to the basis of forming these groups. The room plunged into utter chaos with 60 participants frantically and frustratingly trying to find their match in colour and shape. It didn’t occur to them that groups based on diverse colour and shapes can be formed too. Wouldn’t it have been easier to just group with the few people sitting around? This was a stark show of people trying to find patterns and generalise. Much like, me and my co-mediator had generalised and decided that a “whole country” was not trustworthy!
The same thought processes that make people smart can also make them biased. These implicit biases affect our understanding, actions, and decisions in an unconscious manner leading us to think favourably and unfavourably of certain persons or situations. And, since they are activated involuntarily, without an individual’s awareness or intention, they set us up to overgeneralise, sometimes leading to discrimination even when the person feels they are being fair. This is also known as “implicit social cognition”.
These implicit biases reside deep in our subconscious minds and this makes them different from our conscious/known biases. The latter are under an individual’s easy control and can be concealed for the purposes of social and/or political correctness. Study shows that implicit biases based on race, gender, colour, religion, etc., start creeping in as early as when a child is merely 3 years old because they are based on patterns and observations.
So how does one recognise and control implicit biases? And, what can you do when you are a mediator and have to handle not only your own implicit biases, but also those of the parties in front of you? Over the years, I have found that becoming aware of one's own implicit biases is tough, but not impossible. Acknowledging and controlling them with deliberate thought and a strategised plan is by far the most successful way for achieving neutrality. When we are motivated to be fair and unprejudiced because of either our own strong internalised belief that it is morally correct to treat others fairly or because of strong social norms and legal restrictions against expressed prejudice and discrimination, we can produce controlled mental processes to override our implicitly biased responses.
In order to understand the areas which we might be harbouring implicit biases in, we have two options: (1) there are several tests available online, such as the IAT, and (2) those “shove in the deep dark corner of the heart” moments, like the one I had on that fateful day in San Francisco. My advice to my fellow mediators would be go for the online tests immediately and save yourself some valuable time and possible embarrassment.
However, be aware that when you test, it will be easy to reject the results as "not me". But that's the easy path, and I didn’t say it was going to be easy. To ask where these biases come from, what they mean, and what we can do about them is the harder task and that’s the one which will bring you closer to your true neutrality. Once you are aware of the broad areas and categories in which you show prejudice, you are better equipped to deal with them. Our awareness of our implicit biases gives us the option to be able to monitor, even if we are unable to completely remove them. This monitoring helps us to pay attention to our spoken language, body language, facial expressions and mannerisms.
As a mediator, I consciously follow the following strategies that help activate controlled processing and enable me to override my implicit/automatic reactions:
Slow down my thoughts and reaction: During my interactions/mediations, I deliberately work on slowing down my thoughts and reactions to be more mindful and considered in my responses.
Active contemplation of other’s psychological experiences: Simply put, this is the process in which I try to think and imagine the feelings and viewpoints of others. Studies show that this increases empathy and reduces unconscious prejudice, discriminatory behaviour and stereotypes. For a mediator, it helps blur categories and enhances the perception of each party by the mediator as part of himself/herself thus enabling a more successful facilitative process.
Expanding my contact to include a diverse set of people: This helps me get sensitised to diverse cultures, religions and thoughts and of course, makes for fun conversations and evenings! This in turn encourages me to view issues from the eyes of the diverse clients that I come across. Logically, in my view, a conscious decision to be egalitarian leads one to widen one's perspective, thoughts, circle of friends and knowledge of other groups. Such efforts may, over time, reduce the strength of implicit biases.
Challenging thoughts and assumptions: I actively and constantly challenge my thoughts and beliefs by questioning my own assumptions and responses, and analysing them against other possible responses. This also helps widen and deepen my understanding by raising a ‘why’ or ‘why not’ on my assumptions and thoughts.
To sum it up, as a mediator, the first and foremost step to achieving neutrality is to recognise how far we truly are from it and only then will we comprehend the path and process required to cover the miles.
The author is the Founder and Managing Partner of The ADR Group (TAG).