DISPUTE RESOLUTION: Court-Connected Mediation and Minorities

Vol. 30 No. 6

By

Sharon Press (spress01@hamline.edu) is professor of law and director of the Dispute Resolution Institute at Hamline University School of Law, St. Paul, Minnesota.

In 1988, Florida and Texas became the first states to adopt legislation authorizing trial judges to order any civil case to mediation. Over the past 25 years, court-connected mediation has grown exponentially. The focus of this article is an exploration of whether progress has been made regarding minorities’ experience, as both mediators and parties, in court-connected mediation.

Minority mediators. The modern court-connected mediation movement can trace its roots to community mediation. Community mediation began with a strong commitment to employing racially diverse personnel and volunteer mediators. Over the years, court-connected mediation matured and evolved from primarily criminal justice system alternative or diversion programs to an avenue for addressing civil matters. Programs also saw the amounts in disputes considered appropriate for mediation increase dramatically, from those in “minor” disputes to no upward dollar limit. These changes were accompanied by an increased professionalization of the field and an expectation among many, if not most, that mediators would be compensated.

As the court-connected programs expanded in their breadth and depth, the commitment to mediator diversity waned. The qualifications for mediators were often tied to professional licensure or prior judicial experience. Given that the legal profession is not yet ethnically and racially representative of the population, it is no surprise that these qualifications had the unintended consequences of wiping out much of the mediator diversity in the field.

Minorities as parties to mediation. A study done in the early 1990s by Michelle Hermann and Gary LaFree in New Mexico uncovered the following: (1) minority claimants consistently received less money, and minority respondents consistently paid more than non-minorities, and the result was more pronounced for mediated cases than adjudicated cases; (2) in adjudication, monetary outcomes were primarily related to case characteristics; (3) in mediation, ethnicity remained a significant predictor of monetary outcome but the effect was eliminated when both of the co-mediators were minorities; but (4) overall, parties who were sued and went to mediation were more satisfied with the outcome in mediation than in adjudication.

The concerns that informal dispute resolution processes are inappropriately intrusive as compared to litigation were best articulated by Richard Abel and Richard Hofrichter in the early 1980s. Their concerns were twofold: disputes that were traditionally resolved (or not) within the community were brought within the realm of “state control” via their inclusion in community mediation centers, and the issues discussed in these disputes were expanded as participants were invited to air their feelings and reveal details about their personal lives.

In the context of court-connected mediation, the concern that a dispute previously not under “state control” would now be brought under such control does not apply because by definition, the dispute has already been brought to the court’s attention. Further, it is not clear whether the concerns about an expanded view of the issues applies to court-connected mediation, given that depending on the orientation of the mediator, the process may in fact be limited to the four corners of the legal dispute.

But even if one accepts that in some court-connected mediations the mediator will encourage an expansion beyond the legal issues to give voice to emotion and personal impact, one has to question whether this really is problematic. Many people believe that such an expansion is a good thing and that mediation is not fulfilling its true potential if parties are limited to discussing legal issues. In the context of minority populations, this may be even more important given the potential collective orientation.

An additional critique focuses on the concept of neutrality. There are two facets to this critique. The first is that neutrality is not attainable. According to this view, the assumption that mediator neutrality can be achieved misses the reality that mediators bring to the table their own “social class, ethnic heritage, and professional and political ideologies” (in the words of Hofrichter). The second facet is that even if a mediator could behave in a neutral manner, neutrality in mediation is problematic for minorities because mediator neutrality perpetuates “patterns of disparate treatment, experience, and outcomes” and acts as a “conduit for legitimizing power structures” that favor the dominant population.

A response to the first prong of this critique is to affirm that we have too few qualified mediators who represent the diversity of our communities. A diverse pool of mediators will prevent minorities from being at a disadvantage at a mediation by ensuring there are options for mediator selection that better represent the social identities, experience, and worldviews of all the parties involved.

In response to the second prong of the neutrality critique, additional research is needed to determine both the validity of this assertion and how we think about what it means to be neutral.

The Model Standards of Conduct for Mediators adopted by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution in 2005 specifically address neutrality issues in Standard II B 1 Impartiality, Standard IV A Competence, and Standard IX Advancement of Mediation Practice, respectively.

Recommendations. As advocates for mediation, we have a responsibility to see that both the traditional adjudicatory process and the mediation process are as strong and respectful as they can be. We should work for adequate funding for both processes and for adequate funding to conduct research and evaluations. In particular we should determine whether the results of the New Mexico study are replicable involving other minority populations today. The study also used small claims cases as the data source. Would the results be the same in family cases or large civil cases? Professional associations should be doing more to encourage research in this area.

The New Mexico study suggests that the ethnic identity of the mediator matters. This, in combination with the shift away from minority mediators in court-connected programs, highlights an area where changes are necessary. As long as attorneys continue to choose the mediator for their cases, they will continue to select from the more limited pool of experienced, non-diverse mediators. To effectuate a real change would require more dramatic rule revisions that have the potential of interfering with the important concept of self-determination. Professional associations and private providers of dispute resolution services should devote resources to operationalizing the Model Standards of Conduct for Mediators, and there must be a plan to develop meaningful opportunities for mediators who come from diverse backgrounds.

Much can be accomplished through both formal and informal training opportunities. At a minimum, this training should include learning objectives that relate to cultural competence and encourage consideration of the issues raised in this article.

Program administrators and mediators need to be mindful of what information is shared about the mediation process and procedures and how that information is shared. In what languages is information about the process and procedure available to participants—and at what comprehension level? How is the information distributed?

There is still much to be done. Understanding the issues is the first step, but it cannot be the last.

ABA Section of Dispute Resolution

This article is an abridged and edited version of one that originally appeared on page 36 of Dispute Resolution, Summer 2013 (20:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/dispute.

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BOOKS AND OTHER RECENT PUBLICATIONS: Stories Mediators Tell; Early Neutral Evaluation; Lawyering with Planned Early Negotiations; Judges Under Fire; Organizational Ombudsman; Mediating Legal Disputes; Challenging Conflict: Mediation Through Understanding; Making Money Talk; The Negotiator’s Fieldbook.

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