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Opinion - Mediator bias

David Richbell FCIArb

David Richbell FCIArb

In the final part of a three-part series, David Richbell looks at the issue of conscious and unconscious bias when acting as a mediator.

Most of us would conclude that we are open-minded, non-judgemental, unbiased and agreeable  people.

In particular, mediators would say that alongside these attributes, independence, even-handedness and neutrality are vital in building a relationship of trust with the parties and their advisors.

But the reality is that we all have biases, conscious and unconscious, and they undoubtedly affect the way we relate to people and how we conduct a mediation.

This came to the front of my mind in a recent mediation. It was a contested probate case and siblings were fighting each other for a bigger share of the estate.

Although I believe such cases are ideal for mediation – we often read stories of the estate being spent on legal costs, with very little left to share in the end – they are the worst for bringing out peoples greed and sense of injustice.

But my unconscious reaction, as an only child, was wanting to say to them that they didn’t know how lucky they were to have brothers and sisters. Although I didn’t say anything to the warring siblings, the circumstances made me aware of the fact that there are biases hidden within me that certain situations will trigger.

So I investigated further, as awareness is the certain key to neutralising any hidden bias that we may have.

We are human beings, and that means we have history. History brings baggage and this baggage informs our attitude to life and to other people.

Some of it we may recognise, but much of it we certainly won’t. The challenge for mediators is to be constantly “present” during the mediation and to be consciously aware of our own behaviour and the effect of our own personality and mind-set, particularly on other people.

I realise now that in several mediations I have asked my assistant to kick me if any sign of frustration becomes noticeable. I like to think that this can happen when a party, or a party’s advisor misuses the mediation process.

However, now that this is a conscious and recognised bias, it is one which I can pacify, bearing in mind that it is essential for a mediator to have good rapport with everyone, even the most difficult person.

So, this brings us to the following question: How can we neutralise our negative biases?

The first step must be awareness. If you don’t know about it, how can you deal with it? And once you know about it, you need to have the willingness, and sometimes the courage, to work to adjust the identified bias.

Becoming aware of a bias can only come from feedback, and that feedback needs to be honest (and kind). It needs to come from colleagues (those that see you at work), from family (spouse, siblings, adult children) and clients (those who use your services). This in itself is a challenge.

The first challenge is to admit to others a potential flaw in your otherwise flawless character. The second is for the feedback to be honest, insightful, helpful and kind.

The trouble is that mediators work in a lonely world – very few mediations in the commercial sector are done with co-mediators and those of us that do have assistants/pupils/observers are unlikely to get meaningful and honest feedback.

These colleagues are usually too ‘respectful’ and may want another booking, so the feedback they give will rarely be insightful of any bias shown by the mediator.

Co-mediation is a better way of obtaining helpful, and experienced, feedback but, though common in community mediation, it rarely happens in commercial cases. So the best way of getting feedback from a colleague is to have a regular peer review – honest feedback from an experienced mediator whose role is to observe, not take part in the mediation.

Unfortunately, few of us risk peer reviews – they make you vulnerable to an equal.

The next challenge is to accept the feedback and be prepared to do something with it. It is a challenge because it can often confront who we are; it can question those beliefs and prejudices which have sustained us, and presumably made us successful through life.

It takes time, hard work, conscious and disciplined effort to change habits of a lifetime, but the result will be that parties do not suffer from the unintended consequences of mediator bias.

The responsibility to eliminate bias rests with the mediator. Our professional reputations may depend on it.

David Richbell FCIArb is a Civil and Commercial Mediator with over twenty years of experience. Originally from a construction background, he has mediated cases over numerous sectors both in the UK and in several countries overseas. His latest book How to Master Commercial Mediation for mediators at any stage of their career was published in 2015.