Mon 27 Aug 2012

Ethical Blind Spots in Mediation and the Benefits of Mentorship

Posted by Heverton.Oliveira

As I prepare course materials for a new class in Ethics and Professionalism and also update readings for my tenth (!) time teaching the UBC Mediation Clinic, it is perhaps inevitable that my thoughts will cross over.  

So it is that I am musing today on the application of the Ethics chapter in the new ABA book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making, to the role of the mediator.  I find the discussion of ethical blind spots and ethical fading, in particular, may have even more application for mediators than for the lawyers it is aimed at, and I would like to propose (yes, from a place of transparent self-interest) that one possible means of addressing such blind spots is through teaching and mentoring others.

In the new book, Jennifer K. Robbennolt and Jean R. Sternlight write that ethical blind spots get in the way of our perceptions of ethical tensions.

"If we are objective, fair, and unbiased, then we need not be concerned that we might take unfair advantage of another or unfairly privilege one person or position over another.  If we are competent, then we need not question our ability to act or decide appropriately.” 

These lines bring to my mind countless discussions over the years in which, in one context or another, inexperienced mediators raise questions about how to ensure one is not acting from bias or directing a mediated outcome according to one’s own sense of fairness, possibly to the detriment of one party.  Common advice from more experienced practitioners is that “experience helps us to be confident that we are staying impartial”. That said, I ponder: while experience may give us more confidence that we are impartial, that’s precisely when ethical blind spots are most likely to arise. It seems to me that experience is more likely to lead to subjective (over)confidence in one’s own impartiality, and a tendency to be less self-reflective, than to greater impartiality.

Similarly, many dispute resolution practitioners will be familiar with the idea that “scripts” that govern a particular situation may reduce the likelihood that one applies critical thinking to the situation.  Scripts are schema for events – they operate as stereotypes that allow us to fill in informational gaps through inferences.  Robbennolt and Sternlight offer one example of such a script in the legal world: the traditional “negotiation dance” in which a concession by one party is expected to be followed by a concession from the other party.  Likewise, it seems to me that skillful mediators develop their own scripts for their role in the “dance”.  I would suggest from both personal experience and observation that it is likely that this scripting occurs to an even greater degree where a mediator mediates regularly within a specific context that has its own pressures (from repeat parties, from administrative regulations, etc.) for conformity to some standard of mediation within the practice area (e.g. Motor Vehicle Personal Injury mediation, Small Claims mediation, Child Protection mediation, etc.).

The most competent and experienced mediators are good at what they do precisely because they have learned to make a specific process choice in a given situation without casting around for ideas about what to do.  The better they become at making these choices, the more intuitive, and less reflective, the choices become in the moment. (This is not to say that experienced mediators don’t have a whole series of alternative choices to turn to, should the first choice not prove as effective as they’d like, but some choices “just work” and will be used more often than others. While most experienced mediators can also very competently explain after the fact the many reasons why they made a specific choice, the truth is that in the moment they are less and less engaged in analyzing the implications of any process choice and more and more reliant upon scripts that have been successful in other situations.  No doubt this is a facet of developing expertise, and it certainly replicates the development of expertise in all other aspects of our lives.  Nonetheless, at the same time it carries with it the certainty of some unconscious bias.

So the more experienced we become as mediators, the more scripts we have, and the more potential for ethical blind spots.  Hopefully, we have also developed more tools for self-awareness and reflection.  As someone who does not find it easy to maintain a regular journaling practice, I have found that my own scripts and blind spots are most readily surfaced for me by student mediators.  With this in mind, I would suggest that the practice of mentoring can be one of the best tools for self-reflection by the mentor.

Since 1997, I have mentored hundreds of students in Small Claims court-based mediations, primarily in Ontario and BC.  These mediations have constraints on time, tend to have some frequently occurring case types, and seem to involve litigants with some common motivations.  This is precisely the sort of repetitive mediation process that leads one to fall into scripts.  While I have been diligent in refuting any and all slighting suggestions that “it’s just Small Claims” and therefore somehow not meaningful, complex or of real importance and does merit the same exercise of best skills as any other context, there is no doubt that I also fall into patterns for approaching specific challenges in a mediation without the same level of conscious thought; this is simply a result of using an approach over and over.

Working with student mediators is enlightening in identifying some of these patterns and questioning the potential consequences.  Fresh eyes can often see those aspects of one’s practice that don’t quite jibe with the ideal description of mediation contained in the training materials.  A student will ask me about why I did something without any intention on their part of challenging my choice – they are just trying to make sense of the disconnect they feel between theory and practice.  And while it is remarkably easy to fall into a script in response (“I could see that the parties had X common interest”, “Did you hear the way the claimant talked about Y?”), I find that forcing myself to pause and think about the question leads me to identify my own previously unrecognized scripts.

So what?  If you have a great script and it works, what possible harm could it do?  It is all well and good to say that when we are conscious of our own scripts, we need be less worried about blind spots; however, it’s incredibly difficult to remain conscious of our own scripts. For example, I know that I (like many of my colleagues) will frequently explore the possibility of particular parties to a mediation having interests comparable to those I have seen in other like mediations.  The more often that people in a specific case type or from a specific business background agree that “it’s all about reputation”, “respect matters”, or “it’s one time too many that people have treated them this way”, the more likely I am to look for those motivations in the next mediation.  Eventually, when a student asks why I focused on business interests rather than exploring the clearly heated emotional environment, I hear myself saying something like “You’ll find that a lot of times in construction/commercial/etc. cases…”.  Well, yes, but did I ignore the emotions simply because of the context?  Would I have done something different if I were in a child protection mediation?  What assumptions am I making about these parties that, in the Small Claims context in particular, I really know very little about?  Are my assumptions justified?  And is my focus on business interests guiding the parties to a solution that meets specific interests but may ignore others because I’ve marginalized those interests – without any conscious intention to do so?

There is no question that we all bring biases of one kind or another into every mediation, and we reinforce those biases through our own perceived successes.  In fact, my very positive experiences in co-mediating and mentoring have probably supported an inherent bias for oral analysis of a mediation.  That said, others may well be seeking more interactive ways to engage in self-reflection, and I hope that some will consider inviting a student to sit in with them, or will take on a greater mentoring role than they have – for their own learning!

Guest blogger Sharon Sutherland is Assistant Professor at the University of British Columbia Faculty of Law at Allard Hall teaching Ethics and Professionalism, the clinical Mediation Program and the Judicial Externship. She welcomes suggestions for future blog posts on innovative educational approaches from all areas of conflict management.