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Diversity at the Mediation Table – How Do We Get There?

by Maria Apostolidou, Melanie Koch

June 2021

It is not always automatically bad if the parties at the mediation table are not diverse, because it might for example just be coincidence. It is problematic however, if diversity was hindered and people faced disproportionate or intentional obstacles to keep them away from the table.

Our main goal should therefore be to give every willing person the chance to earn their seat at the table. But where do we start for this? Do we start in elementary school, in university, in mediation training courses? The goal to get people to the table concerns a wide range of starting points. People could be held back from joining the mediation profession because of a lack of financial resources for training courses; it could be because in their surrounding area, there are no schools or mediation centers to learn about mediation; it might simply be that they have never heard about mediation and that this could be the ideal career for them.

Another reason for a lack of diversity at the mediation table could be that qualified people were not admitted to training programs. One of the questions we want to offer for discussion is, if there should be quota regarding factors as sex or ethnicity. A real-life example for a quota from outside of the mediation sphere is a bill that was recently passed by the German cabinet requiring at least one woman to sit on the boards of listed companies and companies with parity codetermination with more than three board members. This stirred up quite a lot of discussion about the sense or nonsense of enforced diversity.

What do you think? Should there be quotas for training courses, universities, or even mediation sessions?

 

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Because mediators frequently confront ethnic, and other types of variety in their work, no mediation training curriculum would be complete without a discussion of the challenges (and opportunities) that such variety brings. Cultural diversity is recognized as one of the "important concerns" in the training curriculum required for court-approved mediation programs under the Massachusetts Uniform Rules on Dispute Resolution. Making a safe setting for a tough dialogue is how mediation is sometimes characterized. Professionals in the mental health field are frequently involved in the same procedure.

One of the mediator's fundamental responsibilities is to remain neutral regardless of the parties' circumstances or differences, and to approach the process with an open mind and heart. Despite this, mediators frequently find themselves sympathizing with one party more than the other, even when acting in a neutral manner. Furthermore, mediators rapidly learn that the parties do not meet on a level playing field—one in which the disputants are fairly equal in power and information or can be rendered equal by a procedure that provides information and includes or acknowledges diversity in ways that foster good communication.

Too frequently, disparities produce advantages and disadvantages at the negotiating table, some of which represent a disparity in the parties' resources, and others which reflect internalized attitudes of superiority on the one hand, or fear and disempowerment on the other. Furthermore, people come to mediation with a wide range of life experiences, some of which are the consequence of abuse based on race, gender, or other traits. Alternatively, the parties may have good views about their differences—for example, a person's ethnic, regional, or racial background may be a source of pride and even honored by society as a whole.

Is it feasible, given the immense disparities that make us who we are as humans, to really manage disparities in such a way that the process is fair to all participants? Can we appropriately empower participants so that their prior experiences do not obstruct constructive mediation? There are no simple solutions to any of these concerns, no boilerplate checklists that can guide us through the maze that is diversity and inclusion. 

One of the constant complaints of mediation is that prejudice is less controllable in informal settings, and hence litigation is the ideal way of conflict settlement in circumstances when such bias is a role, as there are strong procedural standards, a public forum, and a judge to monitor the process. This is a common argument advanced by gender experts who argue that the practice of mediation, particularly enforced mediation, is ineffective, if not destructive, given the power inequalities that exist in our society between sexes.

The effects of the gender bias and power imbalance indicated above can be apparent in the domains of race, ethnicity, culture, sexual orientation, age, religion, handicap, and other aspects that influence the mediation process. Although empirical research on this impact is still in its early stages, preliminary findings imply that diversity concerns influence mediation outcomes. One of the most widely cited studies compared the outcomes of adjudicated cases versus mediated cases in Albuquerque, New Mexico's Bernalillo County Metropolitan Court.

The assessors sought to determine if women and minorities “would do worse... since mediation is a less formal, less prominent, and less regulated venue than adjudication” using about 600 examples. The study looked at both subjective and objective outcomes and discovered that in adjudicated cases and mediated cases, minority litigants earned less money than non-minority litigants, with the latter being “more pronounced.” While part of the discrepancy might be attributed to other "case variables," such as the claimant being a lawyer or being represented by a lawyer, the study found that mediated results for minorities were less favorable than for non-minorities.

The study's most intriguing finding is that if the mediators were members of the minority group, the measurable impacts of bias in objective outcomes (less money received or more money paid) were drastically altered—in other words, minority disputants got superior results in mediations with minority mediators.

One of the most substantial outcomes is the question: Mediation without diversity could be fair, but is it truly just? 


 


Maria Apostolidou will sit the Greek Bar exams and qualify as a lawyer in summer 2021. She has completed her Bachelor in the Aristotle University of Thessaloniki, Greece, a semester as Erasmus student in the Université Libre de Bruxelles in Belgium and her LLM in the University of Strathclyde in Glasgow, U.K. 

Her areas of interest include IP law, Business law, E-commerce. She has been a senior editor of the legal website Ousia Review since November 2020 and a trainee lawyer since 2018. 


Melanie Koch has finished her German legal education at the University of Bonn with a Master’s Degree (First State Examination in Law) in 2018. This June, she will also complete her Second State Examination in Law at her State’s Ministry of Justice in Düsseldorf. After already having worked and studied in Germany, China, Brazil, and Mexico, she will continue working as a Lawyer in Mexico, where she has already spent a part of her traineeship for the Second State Examination in Law.

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., CollabLaw.com or of reviewing editors.
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