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Article Excerpt
Commentators and practitioners have questioned the possibility of achieving social justice through alternative dispute resolution ("ADR"). If fairness, particularly to an underrepresented group, is elusive where the outcome is leveraged by legal rights and decision-making is open to scrutiny, the prospect of fairness without those features seems doubly dim. (1) While increasing sophistication of alternative dispute problem-solving has proven its importance to achieving social justice, (2) the concern in each ADR situation remains that the supposed neutral third party (3) may not be neutral, and that the power dynamics among parties operate to disadvantage the already-disempowered. (4)
The aim of this Article is to help guide mediators' efforts to achieve real fairness and balance in practice. The thinking offered here is rooted in extensive cognitive research in the public domain, and my more than thirty years of professional practice and training as a teacher, lawyer, discrimination law litigator, (5) and social scientist (6) devoted to answering why we discriminate unfairly and what we can do about it.
Most recently, I have considered these questions in training law students how to mediate employment cases. New York University School of Law has been fortunate to team with New York City's Office of Administrative Trials and Hearings ("OATH"), (7) which established the Center for Mediation Services (8) (the "Center") to mediate employment disputes arising in New York City agencies. City agencies have the option of referring employment disputes to the Center for voluntary mediation? These disputes include disciplinary matters, co-worker conflicts, and claims of discrimination or harassment that have not culminated in the loss of tangible employment benefits.(10) Students in NYU Law School's Mediation Clinic co-mediate with Center mediators. (11)
The strategies proposed in this Article are a work in progress. I first developed the guidelines discussed here to give law students, and other Center mediators, ideas for balanced mediation. Mediating in any urban setting, but most particularly New York City, requires that the mediator have methods to work productively within a wide variety of group differences. This is doubly important when the mediation involves charges of discrimination or harassment, because the mediator needs to understand dynamics of difference and must help the parties channel those dynamics constructively. (12)
Drawing from research in social psychology, linguistics, and cognition, I outline sources of bias and some strategies that a facilitator might use to manage his or her own bias and that of mediation participants. The discussion concentrates on dynamics related to categorization, attribution, use of metaphor, norming, and framing, which I refer to collectively as "cognitive efficiencies." As to each of these, the facilitator must first understand how such a process factors in to his or her own thought and communication and then how the same process influences the thought and behavior of mediation participants. Accordingly, Part I discusses strategies to manage cognitive efficiencies in one's own thought and communication, and proposes a few strategies for addressing similar sources of bias as they might be presented by mediation participants. Part II concerns handling of the emotional dynamics of discrimination.
This Article should be read as a proposal for further thought and inquiry. Any one of the five sources of bias, as well as others not discussed here, could be the basis of intensive research and training. This Article is meant to mark the beginning of such inquiry.
I. MANAGING COGNITIVE EFFICIENCIES
The approaches outlined in this Section could be characterized as helpful to managing our cognitive efficiencies. (13) This Section describes some key cognitive efficiencies, illustrates how they operate to produce bias in thought processes, and shows how, if not managed thoughtfully, they can result in unfair behavior. The goal is to help the mediator observe and manage his or her own cognition in order to produce a more balanced and fair facilitation. The advice offered would apply to any decision-maker, including judges or teachers, but this Section focuses only on the facilitative role of mediator to simplify the discussion.
As a culture, we value and reward positive knowledge and decisiveness. (14) Positive knowledge refers to the application of substantive content to a problem. Generally, our education is focused on acquiring positive knowledge and related skills. In doing this, we employ a complex set of cognitive efficiencies--mental processes of simplifying, organizing, and processing information.
But positive knowledge is only part of human intelligence. The other, often more difficult intelligence, at which we are seldom formally trained, depends upon skill in managing our cognition, emotion, and interpersonal relations. (15) These skills require us, among other things, to recognize that cognitive efficiencies are but one set of thinking tools that can, if deployed thoughtlessly, impede creativity, understanding, and communication. Essentially, the cognitive management discussed in this Article involves momentarily suspending action in response to input so that we can mitigate tendencies of bias that are built into cognitive efficiencies. Because cognitive researchers have identified patterns inherent to certain cognitive efficiencies we can, to some extent, anticipate and compensate for their normal operation.
The mediator's job is to observe communication processes and to assist the parties in identifying obstacles and making informed choices about how to respond. Facilitation is the helping role that most emphasizes skills of executive management, and most de-emphasizes applying positive knowledge to the problem presented. Executive management in this context refers to overseeing and directing the dynamics of a process, (16) which may be internal to the person or external to personal interaction. For example, identifying, planning, and reflecting upon the stages of a project would be executive management; implementing the steps of the project would not. It is easier to concentrate upon acquiring and applying the cognitive management learning when one is not also playing the roles of information source, expert, ultimate decision-maker, or actor in charge of implementation. Accordingly, the facilitative mediator's role is an excellent context for learning and practicing cognitive management.
This review will cover five general aspects of cognition. The first is categorization--essentially, naming our world. The second is attribution-explaining our world. The third is metaphor--orienting our world. The fourth is normative--prescribing behaviors. The fifth is framing.
Narrative, or story-telling, is also an essential cognitive process that separately organizes our thinking and functions in tandem with each of the other cognitive strategies. It deserves separate attention and, as a fundamental cognitive organizing source, has received an excellent initial examination in other works by mediation practitioners. (17) The stories that we tell ourselves and each other about "how the world is" or "what human nature is" fashion our own lives and the lives of others. (18) To the extent that a mediator's or a party's thinking is based upon one or more stories whereby inequality is justified or necessary, narrative will be a prime source of bias in the mediation process and would need to be addressed for fairness to be achieved. (19) Narrative is only covered in this Article, however, as it relates to the five other cognitive efficiencies. It is discussed on the premise that many dynamics of inequality and unfairness can be addressed by managing cognitive efficiencies without substantively addressing inequality narratives.
Each cognitive efficiency topic is the subject of vast bodies of research and writing. This Article offers a simple introduction coupled with some thoughts about practical application. Professional practice of mediation, as well as many other fields, could be improved by systematic application of deeper learning about each of these subjects. That said, I have found that even the simple introduction and considered application of the principles discussed here improves practice. (20)
The information resulting from discussion of the five cognition mechanisms has two related uses. The first use is to improve one's own skill at recognizing bias arising from one's own cognitive efficiencies. Developing this awareness will also promote the second use, that of helping others overcome the obstacles to communication that cognitive efficiency creates. Part I is divided into two subsections based upon the two uses. Section A outlines some key features and dynamics of the five cognitive processes; the purpose is to help the reader monitor and manage the biases inherent in their use. Each subpart of Section A includes a key practice recommendation and a discussion of the cognition features to watch for in implementing that recommendation. Section B illustrates facilitation tools that the mediator might use to assist others in getting beyond the obstacles that arise from cognitive efficiencies in operation. The purpose is to demonstrate the utility of this cognitive management approach. It is not to suggest that other factors-individual interpretation, cultural differences, and social values, for example--are not relevant or important to interpersonal problemsolving.
A. Mediator: Managing One's Own Cognition
This Section will discuss the cognitive efficiencies and strategies to manage them. None of the guidance offered here will be useful if the mediator is not committed to fairness and non-discrimination. Accordingly, the first and most fundamental practice recommendation concerns that goal.
Practice Recommendation 1: Affirm that your goal is to be fair and non-discriminatory; always look for and listen to feedback to improve your efforts to achieve that goal
To be effective in helping, it is important to have the correct intention. The intention at the center of this discussion is being fair--that is our goal. We can never presume that we have achieved fairness because doing so signals the end of our efforts. Striving for the goal will require that we try, reflect upon the effort, and revise the effort according to what we learn from trying. This is a continuous iterative process.
We may try many different approaches. Some will succeed, some may be ineffectual, and some may fail, perhaps utterly. Failure and ineffectuality are only significant if we stop striving for the goal. Openly acknowledging shortfalls and modifying our approach reaffirms our commitment to the goal, and illustrates to those we are trying to help the most important skill of problemsolving: attentive, iterative learning. If we do not impart that learning, our other efforts, however skillful, will have only a temporary benefit.
Intention is critical to managing our cognitive efficiencies because it focuses our effort. It is not possible to think without using categories, attributions, metaphors, prescriptions, or frames. The key to effective cognitive management lies in identifying which of the specific cognitive efficiency mechanisms we choose not to guide our thinking and under what circumstances. But first it is necessary to identify how each of these cognitive efficiencies functions so that we can identify management strategies.
1. Categorization: Naming the World
Practice Recommendation 2: Assume that distinction-making, also referred to as discriminating, is a regular feature of thinking. Identify distinction-making that is important to stop. (1) Watch your own thought, speech, and action to identify when and how these distinctions aise; (2) Check those thoughts before they become part of your words and deeds; (3) Assume that you are biased in favor of members of your own group and against persons in other groups.
As a background matter, we must recognize that making distinctions, and thus paying attention to apparent difference is fundamental, normal, and useful to our thought processes. It is so common and essential to our day-to-day functioning that we are usually not aware of doing it.
Having created or applied a category and then assigned individual items to the category, we attribute to members of the categories characteristics of the category--whether the individual exhibits those characteristics or not. Thinking in this way is unavoidable; it is a device our brains use to simplify and organize the information that we must process in perception, memory, and inference. (21)
Categorization involves some interesting features. The first is that we use prototypes,(22) what we might call colloquially "representative" or "ideal" types, to define our categories, which cue us to the representative defining properties of the category. For example, we all have an idea of the category "chair" and what it represents. We understand a chair to be something upon which to sit and probably share a sort of ideal chair, against which all other chairs are judged. It certainly would have legs, a seat, and a back able to support a sitting person. For example, a prototypical chair is probably the simple straight-backed, hardy, and functional wooden school, office, or kitchen chair. If we were asked to think of a chair, we likely would not think first of an antique Chippendale or a beanbag chair. Similarly, if we were told that someone used a chair, without any other information, (23) we would likely envision our prototypical chair and thus remember the scenario as involving that particular style of chair. The Chippendale and beanbag are subcategories of chair that depart in some way from the typical chair, although they do share the defining basic function.
Once a category comes into existence in a language culture, it is enriched with meanings, (24) which are rarely altered significantly. If the category is challenged by the existence of members that do not fit its typical properties--for example, the beanbag chair--we create subcategories to account for the deviation. (25)
Categories not only denote properties of a group member, but also group members' functions. Applying a category label makes a category's relevant properties and functions salient about the item (or person) referenced and excludes irrelevant properties and functions from our thinking. If we hear that someone used a chair, we are most likely to assume that the use was sitting. Without more information, we would likely not think of atypical chair uses like standing on the chair to change a light bulb, using a chair to block a door or to build a child's play fort, even though we are aware that these are also possible uses of a chair. We are unlikely to think of these uses unless we are in a situation where we need to perform such a task and do not have objects at hand more identified with those functions.
We categorize people for the same reasons that we categorize objects--cognitive efficiency. Some categorization of people is necessary to living our daily lives, particularly sorting into functional categories such as "boss," "the person who delivers fuel," or "my child." Other categorization occurs because of observable differences and related socially-constructed meanings, even if the categorization has no necessary functional utility in our daily lives, for example, the categories "African American," "Asian American," "Caucasian," "female," "Jewish," or "Christian." (26)
Unlike inanimate objects, which have a limited range of uses and meanings, people do a myriad of things, fulfill multiple functions, have thoughts, attitudes, emotions, motivations, and attachments. As a consequence, people are much less predefined or predictable than objects. On the one hand, this makes the efficiency of categorizing people much more important. On the other hand, the information that we lose as we categorize people is greater and more consequential, particularly when we influence the resources and opportunities of those we categorize.
When we categorize someone or something, we assign them or it the qualities and features typical of the category, and ignore the individual's other characteristics. We tend to see category members as more similar to those within their category, and more different from those outside their category, than they really are. This occurs on the superficial level where a teacher may confuse one blond male with another blond male, but not confuse a blond male with an African American male, and vice versa. It also operates on a much deeper level, whereby we ascribe to individuals the characteristics and abilities stereotypically associated with the group, and tacitly assume that the individual does not possess other relevant, and possibly stereotype inconsistent, characteristics. For example, a manager might presume that a new female employee is not good at math although her school transcript shows that she was a math major while presuming that the new male employee is better at math than his female counterpart even though that employee majored in history. Given the powerful effects of stereotypes like "men are good at math and women are not," the manager would likely be surprised, and a bit chagrined, if after assigning the male to the "math" job, he or she was confronted with the math/history major...
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