Dispute resolvers who are dedicated to remaining impartial may nonetheless become inadvertent perpetrators of discrimination. Our unconscious biases can lead us to act based on norms or hunches that are inappropriate. In this column, we talk about unintentional discrimination in dispute resolution and describe four procedurally fair ways to prevent harmful mistakes.
Discrimination happens when a person is treated differently because they are part of a legally protected class (e.g., race or disability). This differential treatment happens frequently, but it can be hard to prove because it often manifests in subtle, implicit ways. For instance, studies have shown that e-mails from people of certain races are less likely to get a friendly or thorough response or to receive any answer at all.
Though these e-mail biases are rarely explicit, one type of prejudice has manifested blatantly in the field of dispute resolution: mental illness discrimination. Although discrimination toward other socially marginalized groups is seen as clearly unacceptable, research shows that many people still believe it is appropriate and socially acceptable to discriminate based on the suspicion that someone has a mental health problem or based on their disclosed mental health condition. In fact, reputable institutions have published guidance inadvertently teaching dispute resolution professionals to engage in disparate treatment that violates the principles of the Americans with Disabilities Act (ADA) and other anti-discrimination laws.
The discussion below considers four types of inadvertent discrimination and some simple ways to prevent them. Specifically, when working with parties of any identity, we must be careful not to ask inappropriate questions, screen out cases, provide disparate treatment, or perpetrate everyday microaggressions. We will focus on disability and mental illness examples because they have been featured in published guidance, so they are easily available—but the lessons are broadly generalizable. They apply to all protected identity characteristics, including race, gender, and sexual orientation, to name a few.
Asking questions related to the nature or severity of a person’s disability, even if those inquiries do not rise to the level of an actual medical examination, still violates that person’s privacy rights. Yet some dispute resolution guidance instructs practitioners to determine whether a party’s disability is causing any perceived capacity limitations. While these practitioners mean well in their efforts to assist parties who may be experiencing addressable communication challenges, such inquiries are invasive and outside the scope of a neutral’s role.
The simple solution is to be careful not to probe about a party’s potential disability. Instead, dispute resolution professionals should follow Equal Employment Opportunity Commission, Department of Justice, and National Council on Disability recommendations that neutrals offer accommodations to all parties without engaging in any inappropriate disability inquiries and that they also provide requested process changes without seeking unnecessary information.
If, as a matter of general practice, a dispute resolver grants all accessibility requests, they never need to ask a party about their disability limitations. A party would only have to disclose their disability when a neutral rejects their request and the party decides to invoke the ADA to override that rejection. In those cases, the neutral may ask limited questions if they seek to dispute the disability need. More generally, a dispute resolver may also ask questions about a party’s needs when there is confusion about how to accommodate a party’s request, provided they do not become overly broad in their inquiries. This sensitivity to inappropriate questions has broader relevance across many areas of law and many diverse groups. For instance, laws protect people from inappropriate queries when applying for jobs or seeking housing.
As a general rule, dispute resolution practitioners should never ask for unnecessary information about a party’s background. Some parties may celebrate their culture and broadcast their identity information, but dispute resolution professionals have a responsibility to design processes that do not require or seek it. For instance, when implementing trauma-informed practices, we appreciate that anyone may have endured trauma, so we design supportive services for everyone without trying to guess which parties have experienced trauma. Likewise, a universal design philosophy for accessibility aims to provide flexible process options that appeal to parties of varying ability levels without ever trying to learn which parties have limitations.
The ADA prohibits denying an individual services because of a disabling health condition. It also prohibits using a person’s health condition as a basis for providing them a different type of program or service that they did not request. Yet a 2010 review of collaborative law books found that seven out of eight books recommended screening parties based on whether they had mental health problems. The review concluded that “whether a party has a mental illness” was a recommended factor for screening case appropriateness. Inappropriate eligibility criteria like this gets codified because of stigmatizing misconceptions that assume people with mental health conditions are dangerous, helpless, or socially undesirable.
The simple solution to this problem is to stop relying on any identity-based stereotypes when designing case assessment processes or any other aspect of our procedures. Instead of placing parties into special categories based on their psychiatric diagnoses or other personal characteristics, dispute resolution professionals should focus on observed behaviors, recognizing that any party can present these challenging behaviors at any time.
The Association for Conflict Resolution (ACR) has recently worked to make this shift in their public guidance material. They removed inappropriate recommendations to screen people with certain mental health conditions based on the assumption that these individuals were more likely to become violent or lack capacity. Instead, they are moving toward behavior-based criteria. For instance, the ACR Elder Section agreed to replace language that linked depression to diminished capacity. The proposed new criteria directs practitioners to look for a party’s difficulty with comprehension, reasoning, appreciating consequences, or expressing a choice—behavioral indicators that could result from a variety of circumstances (including, for instance, intimate partner violence), as opposed to reacting to assumptions based on psychiatric diagnoses.
Mental illness stereotypes are not the only prejudices embedded in our practices. All dispute resolvers should carefully examine their procedures and remove any element that directly or indirectly screens people based on features of their protected identities.
Once parties access dispute resolution services, neutrals must be attentive to treating them consistently, regardless of their identity or background.
If a dispute resolver provides a party with different, unrequested process changes because they regard that specific party as possibly having a mental health impairment, they violate the ADA’s prohibitions against disparate treatment. Yet some dispute resolution literature suggests that parties living with personality disorders (for example, narcissistic personality disorder or borderline personality disorder) or related “high conflict” personality disorder traits ought to receive different, unrequested treatment. This guidance teaches practitioners to look for signs of disabling mental health impairments and privately guess which parties might have them—with instructions that the dispute resolver then communicate less about the party’s feelings, devote less time to discussing insight, and talk less about the past than they would with disputes involving “reasonable” disputants. These practitioners are also taught to never tell the parties that they believe they may be impaired “high conflict people.”
Putting aside the ethics of secretly assessing whether a party has a mental impairment, there is a broader question of how neutrals should react to any kind of identity information. Some aspects of a party’s personal identity may be readily apparent. Parties may also choose to share part of their personal history with their dispute resolvers, such that the practitioner might know something about the party’s mental ability level, their cultural background, their sexual orientation, or any other characteristic. How we incorporate that identity information matters. Our gut feelings might lead us to make decisions that are implicitly linked to stereotypes and biases, such as presuming that a person exhibiting personality disorder traits cannot handle insight, feelings, or the past.
The simple solution is to remove our prejudices from the equation and focus on presenting process options to the parties, in furtherance of their own self-determination. A dispute resolution professional may feel confident that they know the “right” thing to do when they see signs of a certain mental health condition or when they see someone from a familiar cultural background. But that feeling of clarity is misleading; a neutral should actually let the party decide what they believe is best for themselves. When a neutral reshapes the process based on their own ideas of what is right for a specific kind of person, that neutral has compromised their duty of impartiality because they are singling out that type of person for different treatment.
Parties may ask for changes based on their personal preference. But it is wrong for us to act on our own guesses based on who we think those parties are. All parties deserve equal access to all opportunities regardless of their race, religion, sexual orientation, gender, or disability (including disabling mental health conditions)—or any other identity characteristic.
Once dispute resolvers learn about the potential for discrimination, they can easily start noticing and preventing inappropriate questions, case screenings, and instances of disparate treatment. It is much harder to overcome the subtle ways a neutral may compromise their impartiality through day-to-day microaggressions.
Microaggressions are comments or gestures that may be well-meaning but nonetheless communicate implicit negative messages about a socially marginalized group. In the case of a person living with a mental health condition, common microaggression themes include inappropriate presumptions that they are dangerous, inferior, helpless, infantilized, deserving of social exclusion, or overly dramatic about their problems (amongst many others).
People often do not know they are making microaggressions. For example, I live with bipolar disorder, and when I first told a colleague about my condition, he said, “Wow, you’re doing so well.” Meant as a supportive compliment, his comment implied that a person with bipolar disorder would not be expected to be doing well. Thus, it was an inadvertent microaggression because it perpetuated negative stereotypes about people with bipolar disorder. Though microaggressions are not always in and of themselves acts of discrimination, a dispute resolution professional who unintentionally sends these kinds of messages inadvertently demonstrates bias—which could ultimately taint the process or hurt their trust with the parties.
Microaggressions can be difficult to avoid. A best practice is to be careful making any comments related to a person’s identity. When in doubt, translate the comment into a protected identity you feel more sensitive to in your own mind, so you can recognize the comment as problematic. For instance, if someone had told my colleague their race and the colleague had responded, “Wow, you’re doing so well,” the remark may have been more easily recognizable as demeaning. Some microaggressions may be prevented by performing these mental translations, and more may be prevented by getting in the habit of avoiding identity-focused comments. But there is no failsafe that will counteract all of our implicit biases. Therefore, we must always do our best to remain open to feedback instead of becoming defensive.
Being impartial is especially tricky when so much discrimination happens without our realizing it. We therefore must take care, every day, to avoid slipping into unnecessary inquiries, inappropriate screening, disparate treatment, or hurtful identity comments. If we care enough to notice these problems, we can prevent them from happening when we practice. As dispute resolution professionals, we must also keep an open mind and stay receptive to learning from the inevitable mistakes along the way.
