‘Unconscious Bias in Mediation’

Unconscious/Implicit bias [‘UB’] refers to a set of attitudes and beliefs that Participants, and the Mediator may be unaware of. It has two components:
1.  Attitudes; and
2.  Stereotypes.
Attitudes can be positive, negative, or neutral. Stereotypes are categories that constrain and shape what a person believes about, and expects from, other people. One of the challenges in managing stereotypes is that they are a form of automatic thinking: they spring to mind even if they represent a view that our conscious minds find abhorrent.
In mediating a cultural property dispute UB is linked to fairness. ‘In the pursuit of fairness, the interest-based framework instructs negotiators to answer the question of distribution by relying on objective criteria. According to the interest-based framework, objective criteria-often found in traditions, customs, scientific findings, and market valuations – are deemed legitimate so long as they are created by a third party and are accepted by a sizeable number of people. These criteria are touted as authoritative benchmarks of what is fair. The central promise of interest-based negotiation is that a fair process based on these fair criteria will guarantee a fair distribution which in turn leads to a fair outcome. The problem with this promise is that: in part, it hinges its guarantee of fairness on the presumed fairness of the criteria themselves. It presupposes that so long as criteria are externally crafted and generally accepted, they are objective and therefore fair. However, many types of criteria relied upon by the interest-based framework to ensure objectivity and fairness are themselves animated by norms that are prejudiced and, in fact, unfair. With the twofold recognition that norms can become embedded in ostensibly objective criteria and that said norms can be unjust and unfair, the promise of fairness seemingly collapses. In the wake of this collapse, negotiators must be prepared to (1) assess which unfair norms, explicit or tacit, are shaping the dynamics of the negotiation and (2) consider how the pursuit of fairness dictates that the norms themselves be renegotiated. It is these (often implicit) norm negotiations that are the most difficult, the most unsettling, the most frightening and the most important. These negotiations can have long-term systemic implications for who gets what and why. This can feel, and often is, existential. … A postcolonial negotiation about land distribution between an indigenous group and a former coloniser is as much about land ownership as it is about the white supremacist norms used to justify the initial land theft. … In short, if interest-based negotiation is to realise its promise of fairness, sources of legitimacy must be reimagined.’ [Eckblad, Ariel ‘In Pursuit of Fairness: Renegotiating Embedded Norms and Reimagining Interest-Based Negotiation’, Harvard Negotiation Law Review, Vol 26:1 Fall 2020, 1-29].