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<xTITLE>Mediators’ And Attorneys’ Perception Of Prejudice In Mediation: A Survey</xTITLE>

Mediators’ And Attorneys’ Perception Of Prejudice In Mediation: A Survey

by Josefina Rendon
August 2006 Josefina Rendon

In my twenty-six years as a third-party neutral, thirteen as mediator, I believe I have seen many instances of prejudice and injustice. Countless times I have had a sense that a party’s language, education, economic status or skin color was an unspoken factor both in the dispute itself and in the process of negotiations and arguments at hand. I also believe I have seen the “race card” or “protected class card being used.” By this I mean situations, when a party believed she/he was unjustly treated not necessarily because of membership in a protected class, but making such an argument in order to reach a desired goal.

Recognizing that, not unlike beauty, discrimination and prejudice may be in the eyes of the beholder, I was curious to find out if others have had similar experiences and had reached similar conclusions. This curiosity and the fact that Thurgood Marshall School of Law in Houston, Texas was presenting a symposium on the subject of injustice prompted this study. As a result, I conducted a survey of experienced mediators and advocates. By writing such an article, I wanted to share my experiences and learn from the experiences of others.

A series of questions was developed to ask both mediators and advocates about their experience with discrimination in mediation. The questions were then sent via email to members of various mediator and attorney groups. The questions asked practitioners whether, either as mediators or as advocates, they had experienced discrimination in mediations. If so, they were asked to elaborate about such experiences, and to give an opinion as to what should be done in similar situations.

Survey Responses

With only 45 people answering, the responses were disappointingly low. Yet some responses were very telling and informative and will show some of the perceptions of practitioners in the field. Though small, the sample group was diverse. Regarding race or ethnicity, 20 were Anglo or European American; 16 Hispanic, 5 African-American, 2 Asian-American and 2 who mentioned both their European and Native-American heritage. Regarding professional background: 29 were primarily third-party neutral, 8 were advocates or negotiators and one stated he was both. The great majority of respondents, 38, resided in Texas while 7 others represented other states.[1] There were 22 male and 18 female respondents. The majority of respondents fell into the 40-59 age range (28) while there were eight under 40 and six were 60 or over.[2]

1. Do you believe that a person's race or nationality can affect the outcome of mediation or settlement negotiations?

To this first question, the vast majority of respondents (forty-two) answered either yes or a qualified yes. By “qualified” I mean a “yes, but….” answer. For example, some respondents stated that they believed that, rather than race or ethnicity per se, it was the dynamics of class or power differences that really affected the outcome of mediation.[3] Others believed that it was cultural differences that affected outcomes.[4]

Only one respondent answered “No” to the question. Yet, this respondent acknowledged a belief in the disparity of economic power along racial lines. [5] One respondent reflected on the fact that the presence of discrimination is often in the eyes of the beholder.[6] Finally, an attorney reflected on how race must play a factor when thinking ahead to trial.[7]

2. Have you had a mediation or settlement negotiation where you felt that a person's race or nationality affected the outcome?

There were 26 affirmative and 17 negative responses to this question. Those who elaborated on their affirmative answers gave very different and sometimes surprising explanations. One believed that a party in the mediation was using the “race card/protected class card.” The mediator in this case believed that there was no discrimination and that the complainant was using his ethnicity as a means to the ends he wanted.[8] Others continued asserting that culture, language or gender were perhaps just as or more important than race or ethnicity.[9]

One response also alerted the author, probably inadvertently, to the potential presence, yet practical invisibility, of language translation and interpretation problems.[10]

Of those who answered “No” to the question of whether they have had a mediation affected by race or nationality, three of these responses were qualified to the point that they appeared to say the opposite.[11] These included one mediator who was possibly the object of reverse discrimination though she did not label it as such.[12]

3. Did the Issue of Race or Nationality Help or Hurt the Outcome?

Of the 25 people who answered this question, 15 believed that the issue of race or nationality hurt the outcome of the mediation or settlement negotiation. A common theme was the feeling of certainty that a party received less money specifically because of race or ethnicity.[13] Others continued the theme of language, culture and gender as being important factors affecting such outcomes. [14] One respondent mentioned power issues or “dominance” as the significant factor.[15] Another surprisingly said that the differences in culture probably benefited the outcome.[16]

Other respondents stated that they were not able to determine whether race or nationality hurt or helped the outcome,[17] that it depended on location[18] or on the type of case.[19] One final respondent reported a positive outcome when recognition that a language barrier may have hindered a party in the past helped that party obtain more time to meet her obligations.[20]

4. Was Something Said Specifically About Race or Nationality?

Of 23 Respondents, 6 answered yes and 6 answered no to the question of whether they had heard something specifically said about race or nationality in a mediation or settlement negotiation. Unfortunately, few of them offered explanations for their answer. Of those who did, one revealed some cynicism as to the reasons why race or ethnicity were not specifically mentioned.[21] Another said that the process would be interrupted if racist comments were explicitly made.[22] Of those who answered yes, one stated that the issue was brought up by the aggrieved party.[23] Another reported hearing race/nationality explicitly brought up to explain the reasons behind certain types of behavior.[24]

Most respondents, ten in all, reported a qualified “No, but” answer. They instead reported implicit or oblique remarks about race and nationality.[25] Finally, one respondent stated that this was not an issue of discrimination but of language and culture.[26]

5. What Was the Race/Nationality of the Person You Felt Was Discriminating and the One Discriminated Against?

Respondents were specifically asked: If you encountered racism/discrimination/ prejudice, what was the race/nationality of the person you felt was discriminating and the one discriminated against? One person observed that racism, discrimination and prejudice were manifested in varied ways towards different groups.[27] Another respondent reported having “…seen it in all combinations, White against African-American or Hispanic. Hispanic against white or African-American, and African-American against white or Hispanic.”[28] This was a sentiment shared by others.[29]

As to respondents’ perception of specific groups doing the discrimination, 12 answered Anglos or whites; 2 answered African Americans and one answered Hispanic. Regarding the perception of who was discriminated against, the results were as follows: Whites-1, Blacks-3, Hispanics-7 and Asians-1. Again, some respondents believed that cultural differences, rather than race or nationality, was the determinant factor.[30]

Some conclusions from the Survey

Before sending them out, I had anticipated that the answers to surveys would show:

1. That the majority of respondents would report belief that discrimination is manifested in mediation to the extent that it affected outcome;

2. That the manifestation is not direct but subtle and implicit;

3. That more minority respondents would report awareness of discrimination than non-minorities.

Because of the extremely low response, the survey lacked statistical significance. However, the results seem to indicate that, in fact, the majority of respondents believed discrimination exists, that it is often manifested subtly, obliquely and implicitly and that it affects the outcome of some mediations.

On the third point, however, the results did not seem to support the expectation of a correlation between awareness of explicit or implicit outcome-affecting discrimination and the race or nationality of those reporting such awareness. For example, while some European Americans reported such experience either explicitly or implicitly,[31] an African-American mediator surprisingly stated that he had never experienced it in mediation, not “even one that would lead to strong suspicion.”[32]

Perhaps the lack of correlation has to do with the fact that most people who took the time and trouble to answer the survey are those who are already more sensitive to the issues of discrimination and social justice.

Conclusion

Both the literature and comments from some respondents made me realize that many of us are not as sensitive and educated about these issues as we believe we are. For example, the following comment by one of the respondents troubled me: “Why has this become an issue? Are you seeing this creeping into mediations more, or is this just becoming a convenient rationale for those who are not 100% satisfied?”[33] Yet, I also received responses that showed concern, sensitivity and curiosity over the results. These make me hopeful.

I hope that this article has provided enough food for thought and that it will encourage researchers to further study the problems of discrimination and injustice. I also hope that this article will encourage both third-party neutrals and advocates, to reflect on how these problems of injustice persist, and on how we may ourselves be contributing to the problem. Finally, I hope that it will encourage practitioners to act in constructive ways to eradicate prejudice and injustice in our field.

* Excerpted from: Under the Justice Radar?: Prejudice in Mediation and Settlement Negotiations


30 T. Marshall L. Rev. 347 (2005).

End Notes

[1] These were Colorado, Georgia, Montana, New Jersey, South Carolina and Virginia.

[2] Not all respondents answered all questions, therefore the answers will not always total 45. e.g. six respondents did not answer this question.

[3] R15- regarding power and dominance: “… it seems to depend on what the dominant group is. Since the dominant group is frequently male and/or white in the workplace, that is usually the party that "holds the cards." But you do find differences, probably most often in federal service, where blacks can dominate or hold the power in some offices. I had one mediation case where an Asian manager apparently favored Asian employees.”

[4] E.g. R7: “Yes, I feel that a person's race or nationality can affect the outcome of mediation or settlement, not necessarily because of discrimination by parties involved but due to differences in the culture from which both parties come.”

R14: “More specifically, culture ("race" is no longer being used in cross-cultural surveys). Yes, cultural factors can influence the dynamics and outcome of mediation, based on bias of the participants, patterns of self-expression, authority, etc. Also, if persons of a particular ethnicity tend to be the bosses, it creates a class issue.”

R8: “Yes, I have experienced some cultural diversity in my mediations. Not so much a racial bias, as a cultural bias. Cultural diversity i.e. Military lifestyle vs. Civilian lifestyle can be a big stumbling block in Mediation.”

[5] R44: “ No. I think economic bargaining power is generally the overriding factor. Economic bargaining power tends to be similar along certain racial lines, however.”

[6] R2: “However, this is only my hunch, because I cannot point to any clear instance in my own
practice. That is, I have never seen an open and obvious act of discrimination, or even one that would
lead to strong suspicion. One would have to get into the minds of people to see whether they are thinking about race when they make decisions. This means that whether one thinks that race is influencing results is in the eye of the beholder and not evidenced by identifiable acts of discrimination.”

[7] R16: “I think that race does play a factor in terms of social dynamics in some cases / for example, what kind of impression a client can make on a jury.”

[8] R13: “Absolutely, and several times…. There was a gentleman from India suing a very prestigious private school...according to him for racial discrimination. After the opening statements by both parties were rendered, I realized that there was NO foul play in the part of the school. The school however… wanted to settle for the 'ridiculous' amount the complainant was asking. The school did not want any bad 'blood' or advertisement from the suing party. They were afraid a discrimination suit, even if they won the case would be bad reputation for the school.”

[9] R23: “Yes, but it was more accurately identified as a cultural bias affected by gender roles.”

And R14: “Yes, I have had cases… in which ethnicity and gender played a significant role. In my example here, the complaining party was an over-40 petite female from Central America, with less than fluent English language skills. The responding party and the two representatives were African American. The responding manager was a very large…. The complaining party's advocate was quiet while the two managers behaved in an aggressive and demeaning manner towards the complainant. They responded to her story by rapid-fire loud rebuttals, punctuated by leaning or pounding on the table and arm waving; the complainant began to cry and wouldn't answer them. That drove them wild. She also told me the most important factor governing her style of responding was in line with her cultural values, which included submission to authority and that in her opinion the managers were gross. The managers said that she was a wimp and not promotion material because she was too passive and not articulate.”

[10] R13: “…in her [Latina complainant] opinion, the managers were gross.” Author’s note: Instead of meaning “gross,” could she have meant “groseros,” a word that means rude? For language translation issues in mediation see: Josefina Rendon and Edward Bujosa, Mediating With Interpreters, Alternative Resolutions (State Bar of Texas - ADR Section) (March 2002). Rewritten for: http://mediate.com/articles/rendon1.cfm.

[11] R36: “No, but I have been involved in mediation in which an opposing counsel has made reference to my client's nationality and immigration status (in a Family Law-Child Protective Services Issue), and how his status could affect the outcome of the mediation.”

R 32: “No, but I have had many, many, many that were about that type of behavior on one or more parties' part.”

[12] R20: “No, but I had a party (black race) who didn't want me to be the mediator because I was white.”

[13] R41: “Yes, it resulted in a settlement amount for much less that would he have been Anglo.”
I once had a case of false imprisonment, the defendant was big retail chain who was negligent in entering information on a stolen credit card. My client was wrongfully jailed and spent several days in jail because he could not make bail. At mediation, the mediator even told me that the fact that my client was a Vietnamese was a factor on the retailer not offering more money. Plus I think the fact that my client was represented by a Hispanic, made the case less valuable. I truly believe if my client would have been represented by an Anglo, that he would of received more money.”

R42: “The case settled. But, there is no doubt that my client’s ethnicity was a factor in the carrier’s evaluation and in what they would pay to resolve the case.”

R28: “YES - if complainant is a minority, more persuasion and negotiation is needed to reach settlement. Minorities have more hurdles to jump in achieving settlement. It is necessary for them to prove themselves worthy of receiving monetary sum.”

[14] R7: “The issue of national origin made the process of mediation more difficult due to the culture differences in which both sides had completely different attitudes toward open discussion and "face saving.’"

R14: “It appeared that culturally influenced differences were present in the parties' communication / behavior patterns and did much to govern the outcome, in a negative manner. The managers behaved as though they disrespected the complainant and were annoyed by her lack of reciprocal assertiveness and their difficulty in understanding her. The complainant did not come prepared to put options for herself up on the table and expected the mediator to be her protector (her advocate was neutralized and ill-prepared).”

[15] R14: The person in the non-dominant group is always the one at a disadvantage.

[16] R12: “To the best of my ability as 3rd party neutral, there was no negative impact or influence of race or nationality. In some instances, where culture motivated a party to work hard to find a solution and to end the conflict, such helped the process.”

[17] R13: “Help or hurt..? I am not sure, but it changes it.”

R22: “I can't say it helped or hurt the outcome. In the instances I recall, the parties were able to reach a resolution which was acceptable to all parties.”

R23: “I do not believe that I can make that assessment.”

[18] R31: Depends on where it is. In San Antonio, Hispanics get more money that Whites. In Fort Worth, minorities suspected of lying about their cases get less money than Whites who may be lying.”

[19] R34: “Some helped and some hurt. An example of race hurting outcomes would be homeowners’ insurance cases. I do a fair number of mold cases in which the plaintiff homeowner is suing their own insurance carrier for coverage. I believe that there are some insurance carriers who settle more favorably with white homeowners than with minority homeowners.”

[20] R36: “That case is still pending due to the fact that I was able to raise the issue of inadequate services being rendered to my client by TDFPS-CPS due to their inability to provide translated services and Spanish-speaking worker sometime throughout the history of the case. Therefore, my client was granted more time to work on his case plan and the Dept. was ordered to provide him with the necessary services.”

[21] R13: “No. Everybody is very careful not to mention the 'r' word. However, in most cases it is pretty obvious!”

R28: “NO - employers know not to make an issue of race during mediation. They want to convince everyone that they are fair and even-handed in application of their policies & practices. To avoid the appearance of guilt or discrimination, they do not directly address race/ethnic origin or anything that would suggest illegal factors were used.”

[22] R23: “No, and if it had been that blatantly identified, the process would have been interrupted.”

[23] R15: “Frequently the aggrieved does mention it.”

[24] R27: Yes. Typically in these cases at some point a party has declared what their race/nationality is in an attempt to provide explanation for their behavior (communication, thinking, etc.).

[25] R42: ‘”Not directly; it was darn sure evident in reading “between the lines” from the defendant’s arguments.”

R7: “Nothing was said explicitly, but implicitly comments by both parties indicated these differences were in play.”

R16: “Nothing was said directly against my client but condescending remarks by other side.”

R19: “….a) an offer was made in writing, thru the mediator, (attempted) directly to the client and not thru me, in Spanish and in Mexican pesos instead of US dollars. "...that’s a lot of money in Mexico..."

b) mention that the claimant/deceased is an illegal alien, thus settlement on the case should not be that much, regardless of the facts evidencing defendant’s negligence.”

[26] R39: “This is not an issue of discrimination, but rather a language/cultural barrier which may adversely effect the negotiations. It is analogous to the businessman who travels to Japan without any knowledge of Japanese language, tradition, or business culture. It is certainly a disadvantage.”

[27] R13: “ It depends, who is who and what is the case about. Prejudice is almost always present when you deal with parties from different socioeconomic strata. Racism might be present within parties at the same level; and discrimination is more common when you deal with employment issues.”

[28] R32 added: “And that does not even start with other cultures, where there are even more serious problems “, especially in the area of communication.”

[29] R27: “I’ve seen discrimination occur by people of a variety of racial/national backgrounds and usually against someone from a different racial/national group rather than from a co-culture within their own racial/national group. Black, Hispanic, Asian, White, Native American, various European groups.”

[30] R22: “ I don't recall any instances of overt racism/discrimination/prejudice. As a neutral, I have encountered situations where a party was reacting to what they perceived as a lack of respect from the other party. I was able to get the party back on focus by pointing out that what he/she perceived as disrespect might be explained by a difference in culture and not an intentional affront.”

R7: “In the one mentioned in # 2 both parties were strong enough that discrimination was not involved in the final decision. Rather, by questions and listening, I was able to help both strong parties to learn to handle the other's attempts based upon their cultural differences. I will add that I have been a third-party neutral in other cases where Negro participants used the race issue against Hispanic or Anglo to gain an advantage in the negotiation.”

[31] See: responses to question 2 (notes 8-12) & question 4(notes 21-24).

[32] R2: “.… I cannot point to any clear instance in my own practice. That is, I have never seen an open and obvious act of discrimination, or even one that would lead to strong suspicion.”

[33] R5.

Biography


A mediator since 1993, Judge Josefina Rendon has mediated over 1,300 disputes in a variety of areas including family, employment, personal injury and many other areas of law. For almost 4 years, she taught negotiation and mediated for the U.S. Air Force, Army, and Navy. She has been a Municipal Court Judge for 29 of the last 33 years. She is also a former Civil District Judge.

Rendón is a published author of over 100 articles and book reviews as well as a frequent speaker (locally and internationally) in the areas of dispute resolution, negotiation, cultural diversity and law. She was editor of The Texas Mediator and an editorial board member of both the Texas Bar Journal and The Houston Lawyer.

Judge Rendón is past president of the Association for Conflict Resolution–Houston (ACRH) and of the Texas Association of Mediators (TAM). She served on the board of the Dispute Resolution Center of Harris County for many years. She also served on the board of the Texas Center for The Judiciary as well as on the councils of the Alternative Dispute Resolution sections of both the State Bar of Texas and the Houston Bar Association.

In 2007 Rendón was recognized as one of Texas’ Who’s Whos in ADR by Alternative Resolutions, publication of the State Bar ADR section in 2007. In 2011 Rendon was awarded both the Justice Frank Evans Award at the State Bar of Texas convention and the Susanne Adams Award at the Texas Association of Mediators Conference. Each award is given annually to persons who “have performed exceptional and outstanding efforts in promoting or furthering the use of mediation” and who “set an example for the rest of the mediation community in Texas to follow.”



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