Last week, I took a short on-line course on recognizing and eliminating bias. The course was and required of arbitrators and mediators on the roster of the American Arbitration Association.

It turned out to be a good course. It was not directed at “actual” bias. The Codes of Ethics for arbitrators and mediators already require that if you are biased in favor of or against a party, you must decline appointment. It was directed, rather, at subliminal, or subconscious bias.

That’s a difficult subject to approach, because if the bias is subconscious, you don’t know it’s there. But we all know that each and every one of us is the product of our life experiences. These include education and training, of course. But they also include personal interactions both social and professional.

Not surprisingly, a fair amount of the subject matter concerned sending the wrong signals base on perceptions of race, ethnicity, age, gender, and even weight and height. There were four lecturers who told stories of experiences that had made them suspicious or uncomfortable with arbitrators, counsel, or judges.

Most of the behaviors the lecturers complained of were usages that should be easy to avoid. One woman complained of an arbitrator who assumed she was the court reporter and not a lawyer when entering the hearing room. Another, an African American woman who had served on three-person arbitration panels, complained of the panel chair treating her as the odd person out when serving with white or male arbitrators.

A Hispanic arbitrator disliked people making assumptions that failed to recognize the diversity of backgrounds among Hispanic Americans, and assuming that all were identical. An Asian-descended arbitrator had similar complaints.

I do not believe I’ve been guilty of any of those faux-pas. And listening, my first thought was that it ought to be a “no-brainer” to avoid behavior such as I was hearing about. But simply taking the course engendered a train of thought that was, I think, the true value of the course.

Sometimes it takes work, a conscious effort at empathy, not to make assumptions about parties, witnesses, and even counsel, based solely on my own experiences. Usages I may consider inconsequential may be perceived as something else by someone whose life experiences may be entirely different.

This level of awareness is important for everyone, but is especially important for arbitrators and mediators. After all, an arbitrator is a privately-contracted judge, charged with making a decision that will impact the parties’ finances and their lives. A mediator is a neutral facilitator that has been engaged to help the parties find satisfactory compromise.

As an arbitrator, I can’t promise any party an Award in their favor. But I ought to be able to give them a fair hearing. I ought to be able to listen respectively to their arguments and their evidence. I may not be able to make everyone happy, but I ought to be able to give them a decent experience. They ought to be able to leave satisfied with the process, if not the result.

The mediator’s role is somewhat different. There, it is important to get inside the heads of the parties, and to find out the personal as well as the financial considerations they are seeking to vindicate in their case. Money is important in every case, but in most cases, it’s not just about the money.

It’s really important to remember that women have different life experiences than men, African Americans have different life experiences than white Americans, those with disabilities have attitudes colored by how others have reacted to them, and so on.

And it’s deeper than that. Age can be a factor, too. While there is much room for individual differences in all brackets, we all know from experience that Baby Boomers don’t think like Generation X, and neither react the same way as Millennials. Those who are coming of age now are still another generation, and their experiences and attitudes will be different, too.

So, the course I took, although brief, is a good example of how education and training in bias elimination can be well done and worthwhile. I commend thoughtful training along those lines to everyone, whatever their careers.

All training, of course, is not created equal. There’s been a great deal of complaints about “critical race theory”, something with which the Biden Administration is captivated, but which has already received push back and soon will engender lawsuits.

I’m skeptical about that one. But that’s a topic for another day.



Photo by Tim Green aka atoach

Photo by Tim Green aka atoach