Alternative Dispute Resolution (ADR) is popular as a more accessible, less adversarial approach to conflict resolution. Mediation is celebrated for its flexibility, confidentiality, and neutrality. However, these very qualities can sometimes mask deep-rooted power imbalances, inadvertently perpetuating racial inequities within the mediation process itself. Despite the field’s emphasis on neutrality, a critical examination reveals that certain mediation practices—from reframing conflict to procedural fairness—may unintentionally reinforce structural racial biases. This article explores how well-established techniques might contribute to these inequities and offers ADR professionals insights on rethinking and refining their approaches. This article includes a series of examples demonstrating when the goal of “neutrality” upholds inequality.
Many mediation models operate under a universal framework, designed to apply across diverse contexts with the assumption that impartiality and neutrality will ensure fair outcomes. However, universal models that fail to address racialized and other power dynamics risk ignoring the structural barriers that marginalized communities face. Systems designed for “everyone” often center White, middle-class norms that overlook or minimize the unequal impact on marginalized parties. Without a nuanced understanding of how power and privilege shape mediation dynamics, these models may perpetuate inequities. For instance, assuming all parties enter mediation with equal agency disregards imbalances shaped by race, gender, class, and history, thereby normalizing inequality within the process itself.
Neutrality is often seen as the cornerstone of effective mediation, with mediators expected to facilitate dialogue impartially, refraining from influencing outcomes. However, neutrality—especially when interpreted as “colorblindness”—can obscure the racial biases embedded within many disputes. By assuming racial identities do not affect conflict dynamics, this approach often ignores structural inequalities that disadvantage minority parties, inadvertently supporting a status quo that upholds racial inequities. When mediators avoid acknowledging the broader racial context of a dispute, they risk validating inequities as mere “differing perspectives,” rather than addressing them as systemic issues requiring redress.
For instance, neutrality may lead mediators to avoid discussing race or privilege directly, for fear that such topics might introduce bias or escalate conflict. This silence allows racial and cultural dynamics to go unaddressed, leaving marginalized parties without a framework to discuss their experiences openly. Engaging with race directly in mediation does not undermine neutrality; rather, it acknowledges the realities that shape disputes and enables a more holistic approach to conflict resolution.
Reframing, a common mediation technique, aims to de-escalate conflict by translating adversarial language into more neutral terms. Although well-intentioned, reframing can inadvertently minimize racialized experiences by recasting expressions of harm as mere “misunderstandings” or “miscommunications.” This “anything-but-race” approach can obscure the systemic inequities central to certain disputes, reducing the gravity of these issues to prevent discomfort.
In disputes involving race, reframing can become a form of linguistic erasure. By softening the language used by marginalized parties to describe their grievances, mediators may inadvertently invalidate their experiences. Softening language in mediation does more than downplay the severity of racial grievances—it fundamentally alters the power dynamics of a dispute. By depoliticizing harm, creating false equivalencies, and erasing systemic contexts, it enables the harming party to avoid accountability while pressuring marginalized participants into accepting inadequate resolutions.
This expectation that all parties adopt “calm” and “rational” language may exclude those who feel that such discourse does not capture the depth of their harm. Instead, mediators should validate the language marginalized parties use to describe their experiences, ensuring that their grievances are fully understood without being sanitized into neutrality.
Cooling-off periods, a widely used method to diffuse heightened emotions, encourage parties to “reset” before continuing mediation. While this technique can be helpful, it can also delegitimize the anger and frustration associated with racial trauma. Anger is a powerful and legitimate response to oppression, often serving as a necessary outlet for recognition and social change. Cooling-off periods, however, imply that emotional responses are unproductive or “irrational,” a standard rooted in cultural norms that may not recognize the legitimacy of these expressions.
In mediation, these periods may pressure marginalized individuals to downplay their emotions, which may be essential for highlighting underlying issues. By interrupting a valid expression of anger, a mediator implies that a marginalized party’s emotional response is inappropriate and invalid. And by imposing cooling-off periods, mediators may reinforce the notion that emotional responses are problematic, supporting dominant cultural norms around “calm” and “rational” discourse. Rather than prescribing these periods, mediators could adopt trauma-informed approaches that validate the roots of emotional responses as integral to healing and resolution. Statements like, “I can see how deeply this impacts you – let’s unpack this together,” can validate emotions while keeping the discussion productive.
In many mediation contexts, procedural fairness—ensuring that each party has equal time and balanced participation—is considered paramount. However, this focus on procedural equality often conceals deeper inequities by treating parties as though they start on equal footing. Fairness in process may assume that parties wield equal power, disregarding systemic biases that place marginalized communities at a disadvantage. For instance, procedural fairness that ensures equal speaking time may overlook power imbalances that silence certain parties due to race and culture-based disparities.
Procedural equality can mask hidden dynamics that shape outcomes, particularly when mediators rely on non-interventionist “light-touch” approaches that assume parties can self-regulate fairly. This hands-off approach may inadvertently allow dominant parties to exert influence without mediator intervention to address inherent power imbalances. A shift from procedural fairness to substantive fairness—where the quality and impact of outcomes are prioritized—enables mediators to pursue equitable solutions that genuinely address power disparities, rather than relying solely on process. A complainant sitting opposite a lawyer could be provided with plain-language summaries of any relevant legal terms, extended time for preparation, or a requirement that the opposing party provide any reasoning without resort to jargon.
Interest-based mediation encourages parties to identify shared interests instead of asserting rigid rights, generally promoting a path to collaborative solutions. However, in disputes involving discrimination or structural inequity, rights-based approaches may be more suitable. Interest-based models can water down fundamental issues by treating them as negotiable. Framing needs like dignity, safety, or respect as flexible interests suggests they can be compromised, even when they represent essential entitlements that should not be open to negotiation.
To better serve marginalized parties, mediators could apply a rights-based model in these contexts, prioritizing justice and accountability over compromise. Adopting situational flexibility, where mediators shift between interest-based and rights-based approaches depending on the nature of the dispute, would support equitable outcomes that uphold fundamental rights for all involved.
Reality testing, which prompts parties to evaluate the feasibility of their demands, often steers them toward practical “realistic” solutions. However, when applied to racialized disputes, this practice can pressure marginalized parties into accepting “realistic” outcomes that align with the status quo, discouraging them from challenging systemic biases. By asking marginalized parties to make concessions in line with existing norms, reality testing may inadvertently prioritize practicality over justice, favoring solutions that reflect institutional norms (and existing inequality) rather than addressing inequities.
An approach to reality testing that includes a structural analysis of racial inequity would empower marginalized parties to pursue outcomes that challenge the status quo rather than reinforce it. By allowing space for substantive justice, this approach enables parties to achieve results that reflect both fairness and empowerment.
Mediation traditionally measures success by whether an agreement is reached. Yet in racialized disputes and others with power imbalances, defining success as agreement alone can pressure marginalized parties into accepting terms that serve dominant interests more than their own. This outcome-centered approach can mask inequities within the agreement itself, sidelining substantive justice. By focusing only on the existence of an agreement, rather than its quality or equity, mediation may reinforce imbalances instead of resolving them.
For example, instead of mediation concluding in an agreement to create a diversity task force with no commitments or substantive metrics to implement change, success in a case of discriminatory hiring practices might involve enforceable commitments to equitable hiring practices and reparative measures for any complainant alleging the harm.
To promote equitable resolutions, mediators should define success by the extent to which the outcome addresses the needs of marginalized parties. This shift in success metrics would encourage mediators to assess agreements based on substantive fairness, ensuring that outcomes do not merely satisfy procedural benchmarks but genuinely promote equity.
Echoing recent calls within the field, mediators must actively engage with the realities of structural inequities to ensure a transformation in how neutrality, procedural equality, and mediator roles are understood. For mediation to be truly effective and equitable, it must evolve to address systemic inequalities more directly. Embracing the insights described in literature on Critical Race Theory, intersectionality, and implicit bias allows mediators to foster environments that not only facilitate dialogue but actively empower marginalized parties to address the roots of their grievances. Integrating this knowledge into mediation does not require abandoning foundational mediation principles but refining them to better serve diverse parties. By addressing these blind spots, ADR professionals can transform mediation into a genuinely empowering process, creating a “justice- centered” practice that acknowledges and addresses the complex social realities faced by marginalized communities.
Achieving this shift is not a one-time adjustment; it’s an ongoing commitment to learning, reflection, and practice. There is no single “correct” path to achieving equity in mediation; each practitioner’s journey will be unique. What matters most is the commitment to doing the work—continuously seeking knowledge, listening deeply to marginalized voices, and approaching every conflict with humility and a dedication to equity.
A Latina marketing manager consistently finds her ideas dismissed in meetings, only for similar proposals from her white male colleagues to be praised and implemented. When she confronts her supervisor in mediation, describing the pattern as evidence of racial and gender bias, the mediator reframes the issue as a “communication gap” between team members. By softening the language, the mediator transforms a clear example of systemic bias into an ambiguous misunderstanding. This reframing shifts responsibility from the workplace’s culture of exclusion to the Latina manager’s perceived inability to “communicate effectively.” Her experience of intersectional harm is erased, leaving her feeling dismissed and unsupported. Meanwhile, the structural favoritism in idea recognition remains intact, perpetuating cycles of exclusion.
Language matters. Reducing systemic exclusion to “gaps in understanding” dismisses the complexity of intersectional harm and subtly positions the affected individual as part of the problem. Mediators must recognize that systemic bias cannot be “softened” into collaboration without silencing the voices calling it out.
A South Asian software engineer notes that he has been repeatedly excluded from leadership roles, even as less experienced White colleagues ascend to management positions. In mediation, the company frames the decisions as “adhering to professional standards,” implying his leadership style does not align with company culture. This reframing validates exclusionary norms while delegitimizing the engineer’s claim of racial bias. The mediator’s failure to challenge the company’s narrative reframes a structural issue of exclusion as a personal failing. The engineer is left questioning his qualifications, while the organization continues to uphold biased definitions of "professionalism." When mediators accept institutional language uncritically, they risk perpetuating the very biases mediation is meant to dismantle. Professional standards must be interrogated as potential sites of exclusion, not presumed to be neutral benchmarks.
A Black nonbinary executive raises concerns about consistent misgendering and exclusion from company social functions. During mediation, the behavior is reframed as a “miscommunication” between the executive and their colleagues, suggesting that clarifying pronoun preferences should resolve the issue. This reframing treats persistent misgendering as an individual issue, erasing its systemic roots in workplace transphobia and anti-Blackness. It implies that the burden of resolution lies with the executive, not their colleagues or the organization. This approach undermines their lived experience, reducing systemic harm to a solvable misunderstanding.
Softening language depoliticizes harm, prioritizing the comfort of the perpetrator over the accountability they owe. Mediators must reject neutrality when it obscures systemic exclusion. Naming harm accurately creates space for meaningful solutions.
An Asian immigrant alleges that a homeowner’s association selectively enforces rules to prevent him and his partner from hosting LGBTQ events. During mediation, the homeowners’ association representative – a lawyer – dominates the discussion with legal jargon, while the complainant spends his time working to articulate his case. By ensuring “equal time” without accounting for disparities in expertise and resources, the mediator fails to address inherent power imbalances. This procedural inequality undermines the complainant’s ability to fully participate.
