Bias in Mediation

We are all biased. I am the oldest daughter of a two-parent household from a small town in Florida. Every one of those factors can lead to a different bias that can impact my cases and any settlement. It is imperative that I check my bias at the door prior to mediating a case on behalf of lawyers or my own clients. 

Bias can impact mediation in many ways. Whether a jury or judge may be biased or prejudiced against your client can affect the value of the case and the risk you assess moving forward with your client. It’s a conversation that you have to have with your client when setting expectations prior to mediation and during mediation, when evaluating offers from the other side. 

The mediator can also be biased. He or she can be pro-settlement, pro-litigation, or pro-plaintiff. A mediator can also have personal biases against certain types of people, like second spouses or step children (I see it often in estate/trust disputes). Of course, mediators can also be prejudiced towards different races, sexes, religions, etc. Lawyers in mediation have their own biases as well. 

So, how do you prevent the biases from impacting mediation? Reflect. Every mediator, lawyer, and client needs to honestly assess their biases and be aware of the impact they may have on them and how they think. Are you advising your client to settle the dispute because you don’t want to go to trial? Or are you advising your client to go to trial because there is something about the other lawyer or client that you are biased against? As the mediator, are you encouraging someone to take an offer because you like his or her lawyer less than the other side? 

I encourage you to write your biases down and put that piece of paper somewhere outside the meeting room or office where mediation occurs. Clear your preconceived notions and go into mediation with a completely open mind. Your job as the lawyer is to advise your clients on the potential terms of a settlement and the pros and cons of moving forward with litigation. Your job as the mediator is to help the parties get more information and hopefully, move closer to a resolution. Bias prevents counsel and mediators from effectively doing their jobs. 

If you have an emotional dispute and need an impartial, neutral mediator, contact me. I believe in dispute resolution but more importantly, I believe in an unbiased approach in working with clients and counsel.