This document discusses issues related to mediator listservs and ratings. It notes that listservs can unintentionally promote bias and undermine diversity and impartiality in mediation. Impartiality and avoiding conflicts of interest are ethical mandates for mediators. However, listservs allowing ratings and reviews of mediators can be subject to unconscious biases that disadvantage women and minority mediators. Research also shows parties are less satisfied with mediations when the mediator differs in gender or race from themselves. The document urges mediators to be aware of implicit biases and work to promote diversity in their networks and selections.

1. Mediators List Servs
and the Rating Game
Ellen Waldman
Susan Exon
Victoria Pynchon

2. Ethical Mandates| Impartiality
• Standard II. Mediator must conduct
mediation impartially - behav[ing] in
a fashion free from favoritism, bias or
prejudice
• Prejudice/partiality can stem from :
participant personal characteristics,
background, beliefs, conduct during
mediation

3. Ethics Mandate | Conflicts of Interests
• Standard III. avoid actual
conflict and appearance of
conflicts
– with mediation
participants
– with subject matter
• Conflicts must be
disclosed.
– Even with party consent,
mediators must forbear
when conflict appears to
threaten integrity of
mediation

4. Welcome to Consumer Attorneys of San Diego (CASD), see the menus
above to find valuable information and news, to use our many tools
and services, and to learn what CASD is doing to serve you.

5. The SDDL listserv is not to be
used to praise or criticize
members of the Judiciary as
we wish to avoid any
suggestion of bias. With
regard to inquiries on
interactions with Judicial
officers or attorneys, please
reply or interact directly with
the requesting individual as
opposed to reply-to-all
responses

6. CASD List Serve
A robust networking tool
that puts the research
power and experience of
more than 800 of Southern
California's best trial
lawyers at your
fingertips. Ask questions,
discuss case strategies and
gather information via
email. List postings are
archived and fully
searchable. This service is
available only to CASD
Attorney Members

7. Proud to Support
the San Diego
Defense Lawyers

8. The Accelerator Effect

10. Mediator Rating
is Not a Problem
Mediation is a flexible
process, as are
mediator styles, the
mediation’s procedural
progression, and party
self-determination.
Whether online or not,
rating mediators is part
of the voluntary,
consensual nature of
mediation.

11. Standard I: Self-
Determination
“A mediator shall conduct a
mediation based on the
principle of party self-
determination. Self-
determination is the act of
coming to a voluntary,
uncoerced decision in
which each party makes
free and informed choices
as to process and outcome.
Parties may exercise self-
determination at any stage
of a mediation, including
mediator selection . . . .”

12. Self-
Determination in
Selection
• Subject matter
expertise
• Geographic location
• Mediator
style/orientation
– This factor was a
strong desire of
attorneys
– Most preferred
directive/evaluative
mediators

13. A. “A mediator shall
decline a mediation if
the mediator cannot
conduct it in an
impartial manner.
Impartiality means
freedom from
favoritism, bias or
prejudice.”
B. “A mediator shall
conduct a mediation in
an impartial manner
and avoid conduct that
gives the appearance of
partiality.”

14. Flexibility
• No standard precludes
a mediator from
serving in a
directive/evaluative
capacity.
• Being
directive/evaluative
does not impinge on
mediator impartiality.

15. Impartiality
• Offer several alternatives;
• Maintain distance from
parties by predicting how a
judge or jury might decide;
• Provide assessment in joint
session;
• In caucus, provide only
invited assessment w/out
pushing any party to adopt;
• Discuss legal ramifications
w/ the parties in a neutral
manner to diffuse advocacy

16. Impartial Mediator While Evaluating
• Remain passive
as to substance
of mediation;
• Use a Socratic
method of
questioning;
• Evaluate merits
of a “no
agreement”
alternative;
• And more . . .

17. “A mediator shall
conduct a mediation . .
. in a manner that
promotes diligence,
timeliness, safety,
presence of the
appropriate
participants, party
participation,
procedural fairness,
party competency and
mutual respect among
all participants.”

18. • Consumer attorneys want
directive mediators.
• Mediators often ask
attorneys if they are
seeking specific assistance
such as providing a reality
check to a party or some
evaluative technique.
• No difference between
asking attorneys directly
or having them discuss
their preferences on a
listserv?

19. Purpose of the Civil
“Justice” System
• To addresses moral wrongs
and injuries that
– Are an affront to the victim’s
value or dignity
– Violate our norms of
interaction and social bonds
• The “justice system” is
– a forum where a victim is
given the opportunity to
negate the affront, vindicate
her own value and moral
worth, and restore herself to
the status of an equal.
– a legal regime that responds
to wrongdoing by vindicating
the right of the victim to hold
the wrongdoer accountable.

20. Subjective Reviews are
Fertile Ground for
Unconsciously Biased
Judgments
• In Rowe v. General Motors Co.,
the Fifth Circuit held that
• [P]romotion/transfer procedures
which depend almost entirely
upon the subjective evaluation
and favorable recommendation of
the immediate foreman are a
ready mechanism for
discrimination against Blacks
much of which can be covertly
concealed and, for that matter,
not really known to management.
We and others have expressed a
skepticism that Black persons
dependent directly on decisive
recommendations from Whites
can expect non-discriminatory
action.

21. Who Listservs Disserve
• Women and minority
mediators who are in short
supply outside the family law
and employment arena
• Women and minority parties
who are far better reflected
on the bench than they are in
mediation

22. Why Listservs Disserve
Women Mediators
Women are more harshly judged
than their white male peers
• When given identical descriptions
of professor behavior, students
gave professors they thought
were male much higher
evaluations across the board than
they did professors they thought
were female.
• When they told students they
were men, both the male and
female professors got a bump in
ratings.
• When they told the students they
were women, they took a hit in
ratings. Because everything else
was the same about them, this
difference has to be the result of
gender bias.
Judicial Performance Evaluations (JPEs),
ratings by attorneys have historically
exhibited bias against women and
minorities, due to patterns of lower
performance ratings by gender and
race.

23. • When given identical
work product, lawyers
routinely found more
mistakes in the work of
associates they believed
to be African American
than they found in
identical work
attributed to whites
• When given identical
resumes, employers
routinely rated whites
more competent than
blacks.
Why Listservs Disserve
Minority Mediators
JAMS Miami Mediators
Current JAMS Video
No Mediator of Color Represented

24. Participant Dissatisfaction
with Gender Differences in
Mediation
• When the mediator was a
different gender than one of
two parties
– the non‐matched party felt
that the mediation lacked
effective communication.
– the non-matched party felt
the mediator was being
judgmental and taking sides
• When the mediator was a
different gender than both
parties,
– the parties reported lower
levels of satisfaction with the
mediation process
– But they reported that
communication was effective
• Regardless of party gender,
male mediators were
– more often perceived as
taking sides than female
mediators
– More often considered males
to be less impartial.
http://ombudsfac.unm.edu/Article_Summaries/Fairness_U
nderstanding_and_Satisfaction.pdf

25. • When the mediator was a
different race than both
parties, the parties shared a
decreasing sense of optimism
over the course of the
mediation, lacking hope that
the dispute might be
productively resolved.
• When mediator shared race
with only one of the parties,
the other reporting feeling
judged by the mediator and felt
a lack of control in the
mediation process.
Participant Dissatisfaction with Racial
Differences in Mediation
http://ombudsfac.unm.edu/Article_Summaries/Fairness_Understanding_and_Satisf
action.pdf

26. Examples of the Way Listservs
Disserve Civil Justice
• Race is associated with
physician assessments of
patient intelligence, physical
feelings of affiliation toward
the patient and beliefs about
the patient’s likelihood of risk
behavior and adherence to
medical advice
• Blacks, Hispanics and women
are routinely undertreated for
pain based on physicians’
underestimation of their pain.

27. Lists Amplify
Subjective Bias
• Evaluations of group
members are strongly
affected by the extent to
which they support in-group
norms.
• Group evaluations impose
social pressures on others to
reinforce those norms.
• Threats to social identity
among members of in-groups
lead participants to attempt
to restore the in-group's
norms by, for instance,
derogating in-group members
who represent a threat to in-
group cohesiveness.
The Role of Categorization and In-Group Norms in Judgments of Groups and Their Members, 75 Journal of
Personality and Social Psychology 976 (1998)

29. • Take the implicit bias test
• Pay attention to your tendency, if any, to seek out white men
for leadership/power positions, assignments and the like
• Work against your biases by including women and people of
color in your networks and on your lists
• Persist in asking “are there women/people of color” who can
do this job, speak on this panel” (the answer is always “yes”; if
it’s “no,” the nay-sayer hasn’t sufficiently diversified his/her
network.
• Go beyond listservs.