Bias(es) in Mediation
{Read in 4 minutes} Anti-bias training has been around for a long time. Because of that, people sometimes respond to it a bit cynically, with a “been there-done that” shrug. Most discussions of bias tend to focus on racial and gender biases of various kinds. While such biases certainly exist, people have, fortunately, become more sensitized to them and will attempt to consciously mitigate them when possible. However, that leaves open a wide range of other biases that most of us carry but receive scant attention in anti-bias training programs. These potential biases include the following
For various reasons in our lives, we often form quick, favorable or unfavorable impressions of the people we encounter. And that includes those you encounter in mediation. As a mediator, it is important to have your anti-bias antennae up when interacting with parties, attorneys, insurance adjusters, and anyone else who may be participating in a given mediation. There is no perfect checklist. Rather, it is recognizing that you may have thoughts such as, “I don’t really like this person. This raises the question: What should one do then? Here are two possible answers:
- Do Nothing.
This may be perfectly appropriate. Recognizing your reaction to someone is often the most critical factor. You can then be aware of how it influences the way you speak to them, how you ask questions, or whether you interrupt. As a practical matter, I have found that during most mediations, I end up pretty much liking the people I’m dealing with. Some more than others, true. However, it turns out that if you give people the benefit of the doubt when it comes to initial reactions, you eventually find a way to connect with them, which is crucial for resolving any dispute. This requires some dispassionate standing back and letting others speak. That in turn will help you start distinguishing between wants and needs — a critical aspect of conducting any mediation.
2. Do Something
Depending on what about the person who triggered a negative reaction bothers you? You may need to address it. For example, you think someone is lying to you. You could accuse them of being a scurrilous, unrepentant liar who should be ashamed of themselves. Or, you can try to figure out how to unpack what is being said that seems untruthful. “So, you said X. Can you tell me more about that?” Or, “So, you said X. My guess is the other side doesn’t believe that. Why should they?”
No doubt there are other approaches. The important thing is to develop some consciousness about your feelings toward those you’re working with. Those feelings may be shared by others and provide insight into part of the dispute that needs to be unpacked.
Where have you encountered a bias of your own or observed it in others during a mediation? Did that create a roadblock (it may), or was it useful in helping to resolve the matter? Or something else?
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Gary Shaffer Shaffer MediationGary@ShafferMediation.com |
