Overcoming Bias in Mediation

Published August 1, 2017

The quotes above are all based on the premise that, at one level or another, we are all biased or prejudiced. A very experienced mediator, for whom I have a great deal of respect, read an earlier draft of this article and criticized it for emphasizing the concept of overcoming bias in mediation as opposed to recognizing the existence of bias and controlling it within the mediation process. To a large extent, that criticism is valid. Few if any people exit a mediation by leaving their prejudices behind. That is true for the parties and for the mediator. Few, if any, “neutrals” are truly neutral. An experienced and ultimately effective mediator will develop opinions and construct evaluations as a mediation progresses, and that in itself becomes a type of bias in favor of a particular argument, or even in favor of one participant or the other. And, it is often, if not close to always, necessary for a mediator to form these opinions to assist the parties in reaching a resolution of their dispute. However, the bias I am discussing here is of a different type.

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