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Self-Determination IQ and Emotional Intelligence: Concepts For Self-determination IQ and Emotional Intelligence: Concepts for Identifying, Understanding and Developing Strategies to Deal with Cultural Competency, Diversity, Inclusion and Implicit Bias in Mediation The importance of addressing cultural competency, diversity and bias is to stress the need to become self-aware, create self-recognition, and proactively implement debiasing strategies and actions. As more individuals accept these premises, culture, society and group or organizational dynamics will also develop a stronger cultural competency, diversity and debiasing practices. Identifying, understanding and proactively acting upon issues of cultural diversity, inclusion and biases are fundamental to serving as a neutral mediator, charged with facilitating negotiations for parties in conflict in hopes of reaching a negotiated outcome – mediation. Mastering cultural competency and debiasing skills, at any level, like playing the piano, is not accomplished in one lesson. It is a conscious practice on a regular or daily basis, in an on-going manner. A cornerstone of mediation (facilitated negotiation) is “self-determination.” In fact, it is the first standard stated in the ABA Model Standards for Mediators (2005): STANDARD I. SELF-DETERMINATION A. A mediator shall conduct a mediation based on the principle of party self- determination. Self- determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes. 1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards. 2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices. B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others. Effective self-determination can only occur where the mediator has created an environment for active participation of the parties and stakeholders. A mediator needs to conquer roadblocks created by cultural and implicit biases to broaden the scope for meaningful communication, exchange of ideas, viewpoints and options to allow for negotiated outcomes derived from self- determination. The second standard in the Model Rules is “impartiality”: STANDARD II. IMPARTIALITY 1. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice. 2. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. Being an “impartial neutral” 1 is one of the most important expectations for an ADR practitioner, as a practical matter, by definition, and pursuant to every applicable ethical standard in a legal process. Impartiality and neutrality are not possible without exercising at least a reasonable level of cultural competency and debiasing skills. Many neutrals employ high levels of “evaluation” – including the oxymoron, “evaluative mediation.” However, evaluation inherently envelops aspects of external and implicit bias. Neutrals engaged as a judge, arbitrator, fact finder, or early neutral evaluator, need to implement an extra-level of introspection when identifying cultural diversity and implicit bias, because these neutrals are also decision-makers. In an ‘evaluative’ role, the concept of being ‘neutral’ is much more about the absence of a “conflict of interest,” as opposed to being, ‘impartial,’ or ‘free of bias.’ In fact, evaluative neutrals are often chosen based upon the person’s biases, such as specific experience or presumed knowledge. “Emotional intelligence” refers to the ability to identify and manage one’s own emotions, as well as the emotions of others. “Emotional intelligence is generally said to include at least three skills: emotional awareness, or the ability to identify and name one’s own emotions; the ability to harness those emotions and apply them to tasks like thinking and problem solving; and the ability to manage emotions, which includes both regulating one’s own emotions when necessary and helping others to do the same. There is no validated psychometric test or scale for emotional intelligence as there is for [general intelligence – IQ].” “. An emotionally intelligent individual is both highly conscious of his or her own emotional states, even negativity—frustration, sadness, or something more subtle—and able to identify and manage them. These people are also especially tuned in to the emotions others experience.” (Psychologytoday.com/emotionalintelligence, 2019). As a mediator, the necessary introspection of emotional intelligence goes hand-in-hand with the skills to develop cultural competence and to debias. 1 The ABA Model Rules uses the term, “impartial” and not, “neutral,” although “neutral” is commonly used to assume the terms are synonymous. Words do matter, and to that extent, as adjectives, “impartial” means, acting or intervening without bias and with fairness; and, “neutral” means, not taking sides (not engaging on either side of disputants). “Neutral” is also a noun, and as a noun, often is seen as subsuming the noun, “impartiality”. Thus, in a technical sense, a mediator is acting in an ‘impartial’, intervening role, and not in a ‘neutral’ role, (just sitting on the sidelines). Cultural competence and implicit bias are aligned with the term “impartial. As a practical, common-use matter, when referencing an actual ‘person’, the terms, “neutral” or “impartial neutral” are used and “impartiality” is a somewhat awkward noun for usage. (See also, Neutrality in Mediation: An Ambiguous Ethical Value, Paul Bailey, Journal of Mediation and Applied Conflict Analysis, 2014, Vol. 1, No. 1; Wikidiff.com/impartial/neutral). Once a person acknowledges the issues surrounding cultural diversity and bias, the next step is to acquire knowledge to better deal with these issues. One starting point is to explore the basis of the science surrounding these issues. The identification, methods of study, development of theories, and proposed solutions for cultural diversity, cultural bias and implicit bias are derived from “social sciences,” primarily, anthropology and sociology, and have been copiously studied, used, critiqued and built upon for more than a century. In other words, the concepts are not new; rather, it is the conscious application to legal processes that is the epiphany. In part, the escalating interest in “implicit bias” is the post-modern advances in neuro-science, and computers applications, combined with existing anthropological and sociology concepts. These emerging, combined studies are developing methods to better identify and quantify cultural and implicit biases. Those seeking to more fully understand concepts of cultural and implicit bias are encouraged to also study the social science development of these issues. An introduction to the social science is provided in the second-part of this paper. Spoiler alert: Franz Boas (1858-1942), is considered the father of modern anthropology. Boas’ studies and methods of cultural research led to the debunking of immigration, racial and cultural myths and biases surrounding the early 20th Century. Boas personally, and his body of research, also played a significant role in working with the founders of the NAACP. Chicken or the egg? – the next section will deal with the specific, post-modern concepts of cultural competence and implicit bias. Cultural Competence Concepts of cultural competence, diversity, inclusion and implicit bias are fundamentally intermingled and play upon each other to develop a comprehensive understanding. Even broken down as component topics, each topic will inevitably play upon another topic. Another recommended, extensive article, is, Implicit Bias and the Illusion of Mediator Neutrality, by Prof. Carol Izumi, which foundationally deals with cultural bias. Understanding Cultural Competency (humanservicesedu.org (2018)) “The term cultural competence is used to describe a set of skills, values and principles that acknowledge, respect and work towards optimal interactions between the individual and the various cultural and ethnic groups that an individual might come in contact with. At the heart of Cultural competency is effective communication that has as its basis a desire for mutual respect and empathy. Cultural competency is sometimes linked to the term diversity in that in encourages acknowledgement and acceptance of differences in appearance, behavior and culture as a whole. By having an in-depth understanding of how to effectively and respectfully interact with people from a wide range of cultures, the individual maximizes the chance of optimal interactions in a professional setting. This is very important for fields where an individual worker is likely to come into contact and interact with people from other cultures and backgrounds. The key components for a high
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