“Cognitive schemas—thought structures—influence what we notice and how the things we notice get interpreted.”2
The concept of implicit bias is not novel to lawyers, their clients, and alternative dispute resolution (ADR) practitioners. Implicit bias refers to the automatic, unconscious association of prejudice and stereotypes, and is often the result of repeated exposure to stereotypical images.3 Under the influence of implicit biases, people act based on stereotypes and can engage in discriminatory behaviors without consciously intending to do so, and this bias exists in the practice of ADR, including the use of ADR in healthcare disputes.4 While there are several laws and institutional codes of ethics regulating and guiding the conduct of ADR practitioners, negative stereotypes and implicit biases still exist in the practice and continue to affect arbitrators, mediators, and the parties.5
“Cognitive schemas—thought structures—influence what we notice and how the things we notice get interpreted.”2
As the United States becomes increasingly more diverse, the ADR profession faces challenges with diversity, inclusion, and the provision of services that are free from implicit biases. Without effective processes and procedures in place to combat implicit biases in ADR and an attempt to eliminate the health disparities that exist in the United States today, the practice of healthcare-related ADR is strained and not nearly as effective as it could be.
This article provides a brief overview of healthcare-related ADR and implicit biases that exist in ADR practice. It then discusses the overwhelming healthcare disparities that continue to exist in the United States, which can affect ADR practice. Finally, this article provides recommendations to enhance ADR practice and ensure that the ADR service is free from unwanted prejudices.
The Utilization of ADR in Healthcare Disputes
Among the most complex, healthcare disputes that are usually resolved by ADR include provider/payor disputes, disputes between healthcare providers, commercial disputes with vendors, joint venture disputes, employment contract disputes, disputes with patients, and disputes with governmental agencies.6 Medical disputes are particularly challenging for various reasons: (1) these disputes often involve convoluted medical facts and issues of causation; (2) they often involve several parties with different perspectives and conflicting interests; (3) there is a power imbalance between the healthcare provider and the patient; and (4) confidentiality and privacy issues may arise due to the sensitivity of health records.7 Despite all of these obstacles, ADR proves to be an efficient and valuable method to resolve difficult healthcare issues.
Some of the most commonly used ADR techniques in healthcare cases include binding arbitration, mediation, mediation/arbitration, early neutral evaluation, and mini-trials.8 A 2006 study showed that attorneys from both sides in medical malpractice cases reported spending more than 36 hours on average preparing for trials, compared to 3.5 hours preparing for mediation.9 Moreover, mediation appears to be more effective in medical malpractice cases as evidenced in its 75-90 percent success rates in avoiding litigation, cost savings of $50,000 per claim, and 90 percent satisfaction rates among both plaintiffs and defendants.10 Arbitration has a lower satisfaction rate than mediation, but is still more time- and cost-effective than litigation.11
Implicit Bias in ADR
Regardless of its known efficiency and effectiveness, ADR has sometimes been criticized for “disadvantaging minority groups” and “promoting law without justice.”12
Professor Richard Delgado and his co-authors raised the issue regarding racial and ethnic prejudice in ADR more than 30 years ago, and their findings are still important today.13 They found that people who hold prejudicial attitudes are more prone to act on those attitudes in informal dispute resolution rather than in formal settings.14
Everyone holds implicit biases to some extent. Professor Carol Izumi of UC Hastings College of Law, an internationally known dispute resolution scholar, focused on the mediator’s prejudice toward a party and explored how a mediator may become aware of his/her own implicit biases in mediation.15 Audrey Lee, a senior mediator at Boston Law Collaborative, LLC, explored how a mediator may account for and engage with implicit bias directed toward the mediator.16 There is relatively insufficient information, as settlements reached in ADR procedures are confidential and privileged. Even so, Professor Delgado stated in a later law review article that there was plenty of real-world support for his thesis that the danger of bias would be greater in ADR settings than in a trial.17
Professor Delgado and his co-authors examined three different theories of prejudice—psychodynamic, economic, and social-psychological—to explain prejudiced attitudes and behavior in ADR. According to the psychodynamic approach, people who have an “authoritarian personality” tend to be prejudiced because they are often “unable to differentiate flexibly or change their mental sets.”18 Many ethnic groups with the characteristics of “high visibility and little power to retaliate” may then easily become the objects of intense hostility, if they become an opponent of an authoritarian person, or in situations where they symbolize traits that the authoritarian individual dislikes.19
Under the economic approach, prejudiced people dislike minority groups who seem to be poor or from a lower social class, but what they fail to see is that poverty is often a result of structural racism.20 In fact, class prejudice has become a proxy for racial prejudice.21 It is therefore critical to understand the experiences of the oppressed groups in this country and the socioeconomic causes of prejudice in order to tackle unconscious prejudice.22
The social-psychological approach examines multiple factors that contribute to the development of prejudice.23 For example, children are heavily influenced by people around them and learn how to act toward different (social, national, religious, etc.) groups by observing the behavior and attitudes of people from their own groups.24 Moreover, factors like power disparities, socialization, and in-group/out-group cognitive categories all affect an individual’s attitude towards different cultural or ethnic groups.25
The authors noted the risks of informal dispute resolution to minority groups and suggested that ADR, at times, is only effective where parties of comparable status and power confront each other.26
ADR practitioners are obligated to act with neutrality. There are model codes to assist ADR practitioners who may be influenced by stereotypes. For example, the Code of Ethics for Arbitrators serves to provide guidance concerning impartiality, based on the assumption that arbitrators are actually aware of their favoritism or biases. Similarly, the Model Standards of Conduct for Mediators does not require a mediator to avoid favoritism or bias; it simply provides that a mediator should act in an impartial manner “[free] from favoritism, bias or prejudice.”27 These rules, however, do not help much in reducing the risk of implicit bias. Implicit bias is understandably hard to detect and eliminate. It operates below one’s awareness and results in unnoticeable behaviors.28 Regardless of some ADR practitioners’ best intentions, implicit biases can also be “automatically” activated and may produce discriminatory responses toward the participants.29
Further, Professor Izumi found that mediators are likely to favor their own “in-group” and be biased toward “out-group” members, especially those with less social value.30 This bias may be expressed through verbal and nonverbal behaviors, including “spontaneous behaviors such as eye contact, seating distance, blinking, and smiling.”31 She noted that white male mediators, in particular, may unconsciously associate parties of color with negative personality traits related to work ethic, honesty, criminal propensity, and competence.32 She also pointed out that mediators may see more evidence consistent with their existing beliefs than counter-stereotypical ones because people tend to seek and interpret evidence that conforms with their existing beliefs.33 Arbitrators are facing the same challenges in their practice.34 There is no better way to eliminate implicit bias in ADR practice than to have a thorough understanding of it.
Health and Healthcare Disparities in the United States
As discussed above, everyone holds unconscious bias, including healthcare providers.35 Prejudiced attitudes and behaviors from a party to another party can also affect the dynamics of a settlement discussion. Thus, it will be useful for ADR practitioners to have a basic understanding of the existing disparities in healthcare.
Despite the fact that our population’s overall health has improved over the past few decades, health disparities persist in the United States. “Health disparities” means differences in health status; for example, one group may experience a higher burden of illness, injury, disability, or mortality than another.36 “Healthcare disparity” refers to differences in health insurance coverage, access to and use of care, as well as the quality of care across racial, ethnic, and socioeconomic groups.37
Many socioeconomic factors contribute to health and healthcare disparities, including income and education levels. Racial and ethnic minorities also suffer disproportionally from chronic illnesses, such as asthma, cancer, heart disease, diabetes, obesity, and depression.38 They additionally encounter challenges in accessing healthcare services and tend to receive lower quality of care.39 Racial and sexual minorities often experience higher stress levels due to discrimination based on negative stereotypes.40 Among recent immigrants, language barriers and the lack of health insurance or the usual sources of healthcare have also been found to contribute to rising health disparities in the United States.41
Importantly, health disparities between patients of color and white patients continue to widen during the 2019 coronavirus pandemic. Among various racial and ethnic minority groups, Black and Latino Americans are at increased risk of contracting COVID-19.42 Further, they are disproportionately affected by the pandemic in other ways. For instance, approximately 27 million adults will become unemployed and lose their employer-sponsored insurance (ESI) during the pandemic.43 Unemployment during the pandemic has differentially affected low-income and minority populations in the United States. This will likely affect a significant number of children under 19 years old, since more than half of U.S. children are covered by ESI; 49 percent of those children have preexisting conditions and require special healthcare.44 The loss of ESI during the pandemic will likely intensify already existing health disparities for children. What’s more, according to U.S. Census data, only about 46.4 percent of Black households and 50.9 percent of Hispanic households live in homes they own, as compared to 75.8 percent of non-Hispanic white homeownership.45 Due to the pandemic and resulting mass unemployment, landlord-tenant disputes are expected to rise significantly. Studies have shown that Black and Latino homeowners and renters were more likely to miss their payments during the pandemic.46 In Los Angeles, one of the most densely populated yet most affected counties in the United States, the number of landlord-tenant disputes tripled in April 2020.47
Racial anxiety caused by implicit bias may also result in a less productive exchange of information. Imagine what the communication process would be like between a majority group member who is afraid of being perceived as racist and a minority group member who is afraid of being the target of hostility. Further, healthcare disputes often involve the exchange of sensitive health information. In such a tense situation, people tend to avoid interaction and act somewhat less friendly.48 It will, therefore, be difficult for an arbitrator or a mediator to develop trust with the parties if they are reluctant to engage in effective communication.
To improve diversity and inclusion, and increase awareness of gender, race, and ethnic inequalities, ADR practitioners should keep in mind the following recommendations to attempt to eliminate unwanted biases.
Continue Diversifying the ADR Practice
In recent years, the ABA Women in Dispute Resolution Committee has strived to diversify the ADR practice, but there is still a lack of diversity in the ADR profession. A survey of 743 arbitrators and mediators indicated that women represented only 18 percent of arbitrators.49 Female ADR practitioners also handle mostly family, labor, and small claims, while male practitioners handle disputes mostly in areas such as construction, intellectual property, and complex commercial matters.50
FINRA, the largest securities dispute resolution forum in the United States, has also led a coordinated and comprehensive effort to increase the number of arbitrators of color and sexual minorities. It defines diversity as “understanding, accepting, respecting, and valuing differences among people regardless of their age, gender, race, ethnicity, culture, religion or spiritual practices, disabilities, sexual orientation, gender identity, family status or veteran status” and seeks to achieve for all employees to have the opportunity to develop and achieve their full potential.51 Yet according to FINRA's 2019 survey, 29 percent of its overall roster are female, while approximately 69 percent are male.52 There is a significant lack of racial minority participation in ADR as well. FINRA's 2019 survey showed that the percentage of minority neutrals (African American: nine percent; Hispanic or Latino: five percent; Asian: two percent) was significantly below the rate for Caucasians (81 percent).53 Only three percent identified themselves as LGBTQ.54
JAMS and the American Arbitration Association (AAA) are also aiming to enhance diversity in the ADR profession. JAMS, the world’s largest private ADR provider, attempts to promote diversity in ADR and shows on its website that 45 percent of its roster are diverse employees, and 72 percent are female employees.55 The AAA is widely credited for prioritizing diversity and its percentage of minority neutrals has increased from 23 percent of its overall roster to 26 percent in the past decade.56 Even though there were no statistics on minority neutrals specializing in healthcare disputes, there is no evidence indicating that ADR in healthcare is significantly more diverse than in the general ADR profession. These statistics suggest that there is still a long way to go to improve diversity in ADR.
It is critical to continue to promote gender and ethnic diversity in ADR practice. ADR practitioners of color not only are underrepresented but also experience difficulty in receiving appointments.57 Female arbitrator appointments have more than tripled in the past decade, but female arbitrators constituted only about 16 percent of total appointments in 2017.58 Audrey Lee suggested that instead of trying to “match identities,” ADR practitioners could adopt a different approach to the issue by focusing on the "cultural expertise" needed for a particular mediation and the mediation parties.59
Actively Detect Implicit Biases in Oneself
Since implicit bias is “automatically” activated, people who are aware of their own biases are more likely to change them. The American Bar Association (ABA) is dedicated to promoting diversity, and its Diversity & Inclusion 360 Commission (Commission)60 has developed a toolkit that helps reduce implicit bias among key players in the judicial system: judges, prosecutors, and public defenders.61 ADR practitioners can also benefit from the training resources and lessons developed by the Commission. The ABA Section of Litigation’s Implicit Bias Task Force also encourages ABA members to take the Implicit Association Test (IAT) and asks test-takers to report, optionally, their attitudes toward or beliefs about these topics.62 IAT, now widely used in social psychology research, measures the strength of associations between attitudes and beliefs that people may be unwilling or unable to report.63 After taking the IAT, ADR practitioners are likely to gain both external (appearing non-prejudiced to others) and internal (appearing non-prejudiced to oneself) motivations to reduce their biases.64
Professor Izumi urged that mediators should actively suppress associations with stereotypes and engage in a three-part bias reducing prejudice.65 The three-part practice consists of “intention, attention, and effort.”66 The first part, “intention,” requires awareness and motivation.67 ADR practitioners can avoid showing prejudice and bias if they “know themselves” better. Black activist and antiracist scholar Ibram X. Kendi pointed out the key to being an antiracist is the willingness to admit that one is wrong.68 He suggested that people have to accept their own vulnerability, be aware of their ideas that may be racist, use those feelings—how horrible they feel about what’s going on—and put them into action.69 Professor Leigh Goodmark of the University of Maryland School of Law, a scholar of gender-based violence, highlights the potential for gender biases that are mostly due to the problem of gender-based power imbalances in mediation and urged judges and mediators to be sensitive to women’s concerns.70 The second part, “attention,” includes salience and cognitive resources.71 ADR practitioners should actively monitor their stereotype-associated responses by confronting their implicit biases rather than ignoring them.72 Finally, the last part, “effort,” involves exposure and enhanced practices.73 ADR practitioners can further improve their practices by engaging in more regular interpersonal interactions with people from different social groups.74
Make Diversity and Inclusion An Organizational Priority
There is no easy solution to address the lack of diversity in ADR practice. Organizations like AAA and JAMS should set more specific goals to improve diversity within their organizations and encourage their members to participate in intergroup communications. Although many organizations have implemented implicit bias training programs, they should prepare for defensive responses from majority group members.75
Over the past few years, many organizations have also started implementing implicit bias training for employees, but the type of training does not adequately reflect the complexities in real life.76 Even though they aim to educate professionals and provide important information about implicit bias, the programs only work when one is aware of his/her own biases and can control the influence of biases. At the same time, antiracism training may backfire through exposing individuals to stereotypical images and activating stereotypes. If conducted the “wrong way,” it may even induce discomfort and frustration.77
In addition, organizations should incorporate cultural competency into training by improving arbitrators' and mediators’ cultural awareness, knowledge, and skills.78 Cultural competency refers to the ability to interact effectively with people of different cultures and socioeconomic backgrounds.79 Cultural competency training is designed to inform healthcare professionals of some culture-specific values and beliefs and ensure appropriate, culturally sensitive healthcare.80 According to Cigna, a global health service company, cultural competency can increase engagement by meeting the social, cultural, and linguistic needs of parties, and as a result, reduce health disparities and eliminate unconscious bias.81 Cultural competency training will help arbitrators and mediators better understand the parties and enable them to adapt their communication style to facilitate more effective communication. While it is critical to add more women and minority ADR practitioners, it should be noted that one should not assume the cultural competence of an arbitrator/mediator simply based on one’s race, ethnicity, or gender.82
ADR allows parties to resolve a dispute in a cost-effective and less adversarial manner. Because of its flexibility, it will continue to play an important role, perhaps no longer an alternative one, amid and post the COVID-19 pandemic. ADR practice faces challenges with diversity, bias, and inclusion. However, some strategies can be used to diversify and improve the current practice to ensure that all members of society are treated equitably. ADR organizations should continue promoting gender and racial diversity in the profession, provide more comprehensive implicit bias training programs, and make diversity and inclusion an organizational priority. They should also incorporate cultural competency into arbitration and mediation training. Lawyers, ADR practitioners, and the parties will benefit from bias-free communication and outcomes.
- With special thanks to Hayley White, Associate, Norton Rose Fulbright LLP, Washington, DC.
- Alexander, M., The New Jim Crow: Mass Incarceration in the Age of Colorblindness 134 (New Press, 1st ed. 2020).
- Godsil, R., Why Race Matters in Physics Class, 64 UCLA L. Rev. 40, 51–52 (2016); Godsil, R. & Powell, J., Implicit Bias Insights as Preconditions to Structural Change, Poverty & Race (Sept./Oct. 2011).
- Pritlove, C., et al., The good, the bad, and the ugly of implicit bias, 393 The Lancet 502 (2019).
- Marlin, L.M., Overcoming Bias in Mediation: Understanding and Identifying the Unconscious Biases of Mediation Participants, JAMS (August 2017), https://www.jamsadr.com/files/uploads/documents/articles/marlin-advocate-overcoming-bias-in-mediation-2017-august.pdf.
- Apple, G.J., et al., ADR in Healthcare: Perspectives, Process and Promotion, Am. Health Law. Ass’n, AHLA-PAPERS P06289940.
- Amirthalingam, K., Medical dispute resolution, patient safety and the doctor-patient relationship, 58 Sing. Med J. 681, 681–84 (2017).
- Benesch, K., Why ADR and Not Litigation for Healthcare Disputes?, 66 Dis. Res. J. 52 (August-October 2011).
- Szmania, S.J., et al., Alternative Dispute Resolution in Medical Malpractice: A Survey of Emerging Trends and Practices, 26 Conflict Resol. Q. 71, 74 (2008).
- Sohn, D.H. & Bal, B.S., Medical Malpractice Reform: The Role of Alternative Dispute Resolution, 470 Clinical Orthopaedics and Related Res. 1370 (2012).
- Delgado, R., et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev. 1359, 1391 (1985).
- Id. at 1379.
- Izumi, C., Implicit Bias and Prejudice in Mediation, 70 SMU L. Rev. 681 (2017).
- Lee, A.J., Implicit Bias in Mediation: Strategies for Mediators to Engage Constructively with "Incoming" Implicit Bias, 25 Harv. Negot. L. Rev. 167 (2020).
- Delgado, R., The Unbearable Lightness of Alternative Dispute Resolution: Critical Thoughts on Fairness and Formality, 70 S.M.U. L. Rev. 611, 618-23 (2017).
- Id. at 1376-77.
- See id.
- Id. at 1378-79; Worland, J., America's Long Overdue Awakening to Systemic Racism, Time (June 11, 2020, 6:41 AM), https://time.com/5851855/systemic-racism-america/.
- See supra n. 12.at 1379.
- Id. at 1381-82.
- See id.
- Id. at 1386.
- Policy & Standards, ABA, https://www.americanbar.org/groups/dispute_resolution/policy_standards/.
- See supra n. 4.
- See supra n. 14, at 686.
- Id. at 687.
- Id. at 689.
- Johnsen, J.S., Why Your Arbitrator Is Biased, ABA (Mar. 18, 2015), https://www.americanbar.org/groups/litigation/committees/alternative-dispute-resolution/practice/2015/why-your-arbitrator-is-biased/.
- Hall, W.J., et al., Implicit Racial/Ethnic Bias Among Health Care Professionals and Its Influence on Health Care Outcomes: A Systematic Review, 105 Am. J. Public Health e60 (2015); Blair, I.V., et al., Unconscious (Implicit) Bias and Health Disparities: Where Do We Go from Here?, 15 Perm. J. 71 (2011).
- Artiga, S., Orgera, K., & Pham, O., Disparities in Health and Health Care: Five Key Questions and Answers, Kaiser Fam. Found (Mar. 4, 2020), https://www.kff.org/racial-equity-and-health-policy/issue-brief/disparities-in-health-and-health-care-five-key-questions-and-answers/#:~:text=A%20%E2%80%9Chealth%20disparity%E2%80%9D%20refers%20to,care%2C%20and%20quality%20of%20care.
- Id.; Riley, W.J., Health Disparities: Gaps in Access, Quality and Affordability of Medical Care, 123 Transactions Am. Clinical & Climatological Ass’n 167 (2012).
- Oates, G.R., et al., Sociodemographic Patterns of Chronic Disease: How the Mid-South Region Compares to the Rest of the Country, 52 Am. J. Preventive Med. 31 (2017); REACH: CDC’s Racial and Ethnic Approaches to Community Health Program, CDC, https://www.cdc.gov/chronicdisease/resources/publications/factsheets/reach.htm (last updated Oct. 6, 2020) (stating racial and ethnic groups are most affected by chronic diseases).
- Price, J.H., et al., Racial/Ethnic Disparities in Chronic Diseases of Youths and Access to Health Care in the United States, 2013 BioMed Res. Int’l 787616 (Sept. 23, 2013), https://doi.org/10.1155/2013/787616; See Riley, supra n. 37.
- Riley, supra n. 37; Understanding Racial and Ethnic Differences in Health in Late Life: A Research Agenda, in Nat’l Res. Council (US) Panel on Race, Ethnicity, and Health in Later Life (Bulatao, R.A., Anderson, N.B., eds.), National Academies Press, (2004); Institute of Medicine (US), The Healthcare Environment and Its Relation to Disparities, in Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (Smedley, B.D., et al., eds.), Nat’l Acad. Press (2003).
- Ryu, S.Y., et al., What Factors Explain Disparities in Mammography Rates Among Asian-American Immigrant Women? A Population-Based Study in California, 23 Women's Health Issues 403 (2013); Health Coverage of Immigrants, Kaiser Family Found. (Mar. 18, 2020), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/ (finding that in 2018, more than 75% of the 27.9 million nonelderly uninsured were U.S.-born and naturalized citizens and the remaining 24% were noncitizens).
- COVID-19 Racial and Ethnic Health Disparities, Ctr. for Disease Control and Prevention (last updated Dec. 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/racial-ethnic-disparities/index.html.
- Lee, L.K., et al., Children’s Coverage Vulnerabilities with Loss of a Parent’s Employer-Sponsored Insurance, Pediatrics (January 2021), https://pediatrics.aappublications.org/content/early/2021/01/13/peds.2020-032730.
- The Homeownership Rate, U.S. Census Bureau (last updated Oct. 27, 2020), https://www.census.gov/housing/hvs/files/currenthvspress.pdf.
- Bahney, A., It's getting even harder for black and Latino tenants to pay the rent, CNN (June 5, 2020, 6:46 PM), https://www.cnn.com/2020/06/05/success/black-and-latino-housing-gaps-coronavirus/index.html.
- Landlord-Tenant Disputes In LA Triple Amid Coronavirus Pandemic, CBS (Apr. 21, 2020, 11:50 AM), https://losangeles.cbslocal.com/2020/04/21/landlord-tenant-disputes-in-la-triple-amid-coronavirus-pandemic/.
- Hayes, H., Where Are the Women Arbitrators? The Battle to Diversify ADR, American Bar Association (Mar. 1, 2018), https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/winter/where-are-women-arbitrators-battle-diversify-adr/.
- Diversity Statement, FINRA, https://www.finra.org/careers/diversity-inclusion/diversity-statement.
- Our Commitment to Achieving Arbitrator and Mediator Diversity at FINRA, FINRA, https://www.finra.org/arbitration-mediation/our-commitment-achieving-arbitrator-and-mediator-diversity-finra.
- Diversity and Inclusion, JAMS Mediation, Arb. & ADR Serv., https://www.jamsadr.com/diversity/.
- Our Shared Commitment to Diversity and Inclusion, Am. Arb. Ass’n, https://www.adr.org/DiversityInitiatives.
- See supra n. 18, at 692.
- Patel, A., (Wilmer Cutler Pickering Hale and Dorr LLP), Implicit Bias in Arbitrator Appointments: A Report from the 15th Annual ITA-ASIL Conference on Diversity and Inclusion in International Arbitration, Kluwer Arbitration Blog (May 7, 2018), http://arbitrationblog.kluwerarbitration.com/2018/05/07/implicit-bias-in-arbitrator-appointments-a-report-from-the-15th-annual-ita-asil-conference-on-diversity-and-inclusion-in-international-arbitration/ (discussing the implications of implicit bias on the arbitrator appointment process); Pernt, V., (Schoenherr), Women in Arbitration Are on the Rise, Kluwer Arbitration Blog (June 4, 2017), http://arbitrationblog.kluwerarbitration.com/2017/06/04/women-arbitration-rise/;
- See supra n. 15.
- The Diversity & Inclusion 360 Commission was formed by former ABA President Paulette Brown (2015-2016). It is dedicated to formulating methods, policies, standards, and practices to best advance diversity and inclusion in the legal profession, the judicial system, and the American Bar Association. More information about the Commission can be found at: Diversity & Inclusion 360 Commission, ABA, https://www.americanbar.org/groups/diversity/resources/360-commission/.
- Implicit Bias Videos and Toolkit, ABA, https://www.americanbar.org/groups/diversity/resources/implicit-bias/.
- Implicit Bias Test, ABA, https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-test/#:~:text=Unconscious%20Bias%20Test%3A%20Test%20yourself,a%20proxy%20for%20implicit%20bias.
- About the IAT, Project Implicit, https://implicit.harvard.edu/implicit/iatdetails.html (last visited Dec. 30, 2020).
- See supra n. 18, at 690.
- Id. This advice can also apply to arbitrators.
- Kendi, I.X., How to Be an Antiracist (Random House Publ’g Grp. 1st ed. 2019); Kendi, I.X., The difference between being "not racist" and antiracist, TED (May 2020), https://www.ted.com/talks/ibram_x_kendi_the_difference_between_being_not_racist_and_antiracist?language=en.
- Goodmark, L., Alternative Dispute Resolution and the Potential for Gender Bias, 39 Judges J. 21 (2000).
- Id. at 691.
- Onyeardor, I.N., et al., Moving Beyond Implicit Bias Training: Policy Insights for Increasing Organizational Diversity (December 2020), http://sakierahudson.com/files/Onyeador2020PIBBS.pdf.
- Green, T.L. & Hagiwara, N., The Problem with Implicit Bias Training, Scientific American (Aug. 28, 2020), https://www.scientificamerican.com/article/the-problem-with-implicit-bias-training/.
- Id.; Dover, T.L., Major, B., & Kaiser, C.R., Diversity Policies Rarely Make Companies Fairer, and They Feel Threatening to White Men, Harv. Bus. Rev. (Jan. 4, 2016), https://hbr.org/2016/01/diversity-policies-dont-help-women-or-minorities-and-they-make-white-men-feel-threatened.
- Alizadeh S. & Chavan, M., Cultural competence dimensions and outcomes: a systematic review of the literature, 24 Health & Soc. Care Cmty. e117 (2015).
- FIDA Provider Training: Cultural Competence, Ctr. Health Care, https://centershealthcare.com/share/pdfs/CPHL_Uploads/fidaculturalcompetencytraining.pdf.
- Cultural Competency in Health Care: Delivery Quality Care to An Increasingly Diverse Population, Cigna, https://www.cigna.com/assets/docs/about-cigna/thn-white-papers/cultural-competency-in-health-care-final.pdf (2016).
- Butler, F., When Should Race, Gender Or Culture Be A Factor When Considering The Mediator?, Mediate (August 2000), https://www.mediate.com/articles/butler.cfm.