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 degree of Cultural Competency are: Awareness. Being aware of your own individual biases and reactions to people who are of a culture or background significantly different from your own. By being aware of your own internal biases you can begin to work towards other aspects of Cultural Competency. Attitude. The significance of attitude in cultural competence is to delineate the difference between just being aware of cultural differences and actively analyzing your own internal belief systems and developing awareness. Knowledge. Research into human behavior has shown that our values and beliefs about equality may not line up with our actual behaviors and further we often are ignorant as to the degree of difference between our beliefs and our actions. It has been shown that people who may test well in regards to having low prejudices may in fact act with great prejudice when actually interacting with other cultures. Understanding this disconnect is why knowledge is considered a key aspect of developing one’s own cultural competence. Skills. This component is about actually taking practices of cultural competency and repeating them until they become integrate into one’s daily behaviors. The most important aspect of the skills component is having an excellent grasp on effective and respectful communication whether within an organization or between individuals. An often over looked aspect of communication is body language and the sometimes, extreme variation in the meaning of gestures between one culture and another. Once you begin to integrate all four components into your day to day behaviors your degree of cultural competence will increase dramatically. By being aware of your internal learned biases, having an attitude that reflects a desire to deeply understand your own behavior, showing a high degree of knowledge of the subject and implementing the skills of cultural competency, you will soon move from the realm of theory and learning to that of active practice.” The Mediator's Toolkit: Cultural Competence - Transcending Culture Differences in Mediation, Dave Aschaiek, November 2011 (mediate.com)

“The concept of ‘culture’ has various meanings and definitions. One such definition is as follows: culture refers to “customary beliefs, social norms, and material traits of a racial, religious, or social group; also: the characteristic features of everyday existence (as diversions or a way of life) shared by people in a place or time” (Merriam-Webster). So, though culture is frequently interpreted in terms of characteristics related to national or regional origins of an individual or group, this perspective is limited.

Academics from areas of study including psychology, sociology, anthropology, business studies, and communications, consider how culture influences individuals’ thoughts, actions and interactions. A respected professor emeritus at Maastricht University, Geert Hofstede, has published widely cited research in which he identifies ways of describing national cultures. As well, Hofstede considers the implications of national cultural characteristics on business-related practices and relationships. In particular, in his many studies, Hofstede submits cultures of countries and regions are describable along the following five dimensions: power distance, individualism, masculinity, uncertainty avoidance and long-term orientation. The central conclusion of Hofstede’s research is that the way in which a country is characterized in terms of the five dimensions explains, if not predicts, business behaviours and practices of people in and from those countries or regions.

It is worth questioning the notion that the cultural characteristics of a country or a region will explain how all people in that country or region will think, act, or interact. At the same time, there does seem to be some validity to the notion that inattention to the cultural differences can offend if not compromise the success of relationships and interactions. For instance, in business school students are reminded that cultural differences can, perhaps in some cases more than others, influence business practices and affect success of cross-cultural business interactions. Classic examples include Japanese businessmen interpreting pointing using the index finger as an insult or a Chinese businesswoman giving a gift in order to establish a business relationship. A key takeaway from these generic examples of cultural differences and Hofstede’s research is that successful interactions with people of different cultures than our own demands consideration of cultural differences and respect for these differences, at least in order to find a common ground upon which to build relationships and interactions.

A key implication of the definition of culture provided above and the discussion of Hofstede is that culture functions as a foundation for clustering people together based on common cultural characteristics and distinguishing them from others based on dissimilarities in their cultural characteristics. However, as per the definition of culture featured above, while a person’s country or region of origin can influence that individual’s culture, it is not the only influence on his or her cultural identity. Rather, cultural identity is shaped by a multitude of factors, including religious beliefs, ethnicity, schooling, social affiliations, social class, interests, gender identity, neighborhood, profession, organization, department and workgroup in which one works, etc. The possible influences on an individual’s culture, as such, are endless.

As a result, people from the same national cultural background may share certain cultural characteristics, but may have radically different cultural identities; this is because of the combination of cultural characteristics making up each person’s respective cultural identity. Further, because an individual’s cultural identity will influence his or her thoughts, actions and interactions, differences in cultural identities across parties in a communication or interaction can affect the effectiveness of their communications and interactions; this can happen in spite of having shared cultural characteristics, such as those related to religion or national background. For example, cultural differences can influence both assumptions and expectations of communicating parties to the extent that it leads to misunderstandings, to miscommunications and to conflict. As Geert Hofstede states: “Culture is more often a source of conflict than of synergy. Cultural differences are a nuisance at best and often a disaster.”

Not only do cultural differences reasonably contribute to, even cause, conflicts, but they can also affect the ability or willingness of interacting parties to resolve differences. More specifically, the influence of culture on an individual’s perspective (i.e. assumptions, expectations, beliefs), can be so strong it blinds an individual to the existence of alternative points of view. In effect, cultural differences can contribute to the unwillingness of parties in an interaction to admit there might be another way of perceiving a situation or set of circumstances. In some cases, cultural differences can contribute to the inability for parties in an interaction to see another perspective on a conflict or dispute. So, not only do cultural differences across disputing parties influence how each party thinks, acts and interacts, but it also affects the potential for discord and the possibility and success of dispute resolution efforts.

A question that might arise is: what does this have to do with mediation? As has been suggested, a key source of conflict is different perspectives. As also suggested, different perspectives often arise out of cultural differences. Thus, a mediator’s ability to navigate the cultural differences across disputing parties is paramount for success of dispute resolution. That is, a mediator facilitates discussions across parties in spite of cultural differences that contribute to barriers to understanding and communication that led to the dispute in the first place. And, this ability to navigate cultural differences is necessary if a mediator is to assist in discovery of a resolution that appeals to all disputing parties. In effect, ‘cultural competence’ is an essential skill in a mediator’s toolkit.

Cultural competence is a term that refers to the capacity for an individual or group of individuals to navigate cultural variations with sensitivity and poise. Cultural competence is a central skill a mediator must master. Cultural competence refers to a mediator’s ability to: (a) understand how culture and/or cultural differences permeate a dispute; (b) find ways to overcome cultural differences insofar as to find points of agreement to build on in dispute resolution efforts. As such, the mediator is charged with the critical task of facilitating the dispute resolution process in a way that respects cultural differences, but that focuses on resolving a dispute to satisfaction of all parties.

To conclude, whether culture is derived from country of origin or a multitude of other sources, it has an influence on thoughts and actions of people. Given these influences, culture can be seen to have a prominent role in and influence on people’s interactions, including their disputes. If the crux of the mediator’s role is to assist disputing parties to find points of agreement from which to build dispute resolutions, and to do so in spite of cultural differences, cultural competence is one of the essential capabilities in a mediator’s toolkit. Cultural competence is not about a mediator suppressing, explaining, or paying lip service to cultural differences that exist between parties in a dispute. Cultural competence is about acknowledging implications of cultural differences for a dispute and its outcomes, and then transcending them in a respectful and productive manner to arrive at an optimal resolution for all disputing parties.” Cultural Diversity: Implicit and Explicit Bias at Mediation By Andrew Tolchin, J.D. (Mediator, Houston, TX) (2018) “Diversity and multiculturalism are inextricably intertwined into mediation. While disputes have legal facets, they are rooted in problems stemming from individuals themselves, in addition to the facts. Parties express positions, and an effective mediator needs to look for and recognize underlying interests, values, wants, and needs. In essence, understanding what makes the parties tick can help the mediator resolve the dispute. Whatever the problem, much of the root is found in the people themselves. Resolution often is advanced through an understanding of cultural differences. This can be reflected in communication. Awareness of cultural differences opens doors and paves avenues toward resolution. While cultural differences vary far and wide so do the categories– everything from religion, to nationality, to regionality, to education, age, and many other variable subsets such as gender, sexual preference, and disability. The mediator who relates with parties with respect to these differences can help bring people together and the parties to place trust in the mediator. Values arise out of our experiences and our culture. How parties value time, truth, money, resolution, and other factors arise out of our culture, training, educations, circumstances, and background. Addressing parties in a familiar context of these circumstances, training, culture, and background can help yield effective communication. Cultural competence is an effective tool for communication in any mediator’s skill and knowledge set. While there is no one set definition of “cultural competence,” it is sometimes defined as “a set of values, behaviors, attitudes, and practices within a system, organization, program or among individuals, which enables them to work effectively, cross-culturally.” (See Cross, T., Bazron, B., Dennis, K., & Isaacs, M., (1989). Towards A Culturally Competent System of Care, Volume I. Washington, DC: Georgetown University Child Development Center, CASSP Technical Assistance Center). Some may use the term “diversity competency” to mean this same or similar concept. As a mediator resolving disputes and relating to individuals, it is important to take stock in cultural biases and figure out how to overcome those. Understanding the biases from a technical standpoint is a first step. We need to be cognizant of our explicit biases and our implicit biases. Explicit biases, sometimes considered stereotypes, are formed within the conscious mind; these are beliefs and thoughts over which the individual has control. (See Gaertner, Brown, Sam, Rupert (April 15, 2008). Blackwell Handbook of Social Psychology: Intergroup Processes). Often an explicit bias is with respect to a conscious perception about a group of people with a similar attribute. An example might be that all boys like to watch and play football. On the other hand, “implicit bias” is an unconscious association based on past experiences. (See Greenwald, A. G.; Banaji, M. R. (1995). “Implicit social cognition: Attitudes, self-esteem, and stereotypes”. Psychological Review. 102 (1): 4–27). An example of implicit bias might be a group of persons of an older generation being asked to each picture a doctor, and the perception by the vast majority turns out to be of a male doctor. The same could be true of a similar exercise where the person is asked to think of a criminal and someone of a particular ethnicity disproportionately comes to the sample focus group member’s minds. When the implicit bias is of an ethnicity being associated with criminal activity in the mind of jurors, that is a situation where the implicit bias can impact how society judges and affects individuals such as those accused of criminal activity. While bias could arise out of a single event, it also can be based on multiple event exposures. One can hold an implicit bias while outright believing also the bias is not part of his or her perceptions. (id). That being said, being conscientious of bias can help one to be mindful and aware to look for it when possible and overcome that bias. These biases can be based on gender, race, religion, ethnicity, region, occupation, and so many other factors. A mediator who relates to the parties with respect to these cultural differences and who is mindful of biases can potentially relate better with the parties, earn and maintain trust, and help parties to open up. Via this trust comes the sharing which can get to the underlying issues. The mediator can then bring about resolution more effectively. Conversely, the mediator who is unaware of these biases may miss opportunities to relate, may put off one of the decision makers or advisors to a decision maker, and may miss a nuance at the source of the personal conflict between two or more of the parties. Mediators are only as good as their ability to communicate with parties and representatives. Cultural awareness of biases and diversity can make a mediator that much more effective in this communication.” [Excerpts from] CULTURE AND CONFLICT RESOLUTION: INTERCULTURAL COMPETENCE IN MEDIATION Janne Laukkala, University of Jyvaskyla, Finland (2005)

This paper is a brief introductory to the role of culture in mediating intercultural conflicts. Intercultural conflicts take place between family members, communities, and colleagues. As Bercovitch states (1996, 1) the world is literally covered with conflicts that are caused by ethnic, religious, territorial or nationalist problems. In the endeavour to reach resolution between disputing parties at any level, whether in international or interpersonal conflicts, mediation plays a crucial role. . . . . The objective of interculturally competent mediation is to create a dialogue between adversaries and by doing this ease the situation and remove stumbling blocks such as cultural clashes that may lay on the way to resolving the causes of conflicts. . . . . The mediator has to adapt to the mix of cultures present in the negotiation table. The mediator’s fundamental task is to facilitate the exchange of ideas. This facilitative task requires intervention, which in turn should be conducted in a culturally sensitive manner. The mediator should take the needs of the disputants into consideration at all stages in order to achieve disputants’ trust on him/her and on the mediation process. . . . . In case of cross-cultural mediation between members of the dominant culture and members of the minority culture, the dominant culture’s representative usually takes the stance of trying to find the problem of the ‘other’ person. Barsky repeats what has been stated earlier in the study: we do not have to learn about other people’s cultures to promote cultural understanding, but instead we have to be more aware of our own culture. Interacting with other cultures provides us with a mirror that we can reflect ourselves. . . . . In order to be able to function effectively in intercultural context, the mediator should understand the deep-structure of culture in order to be able to explain behaviour and objective setting of a group – competent mediator is able to search for the meaning beneath visible behaviour (Schneider and Barsoux 2003, 22). With the help of intercultural competence, active listening, reframing skills and cultural education the mediator is able to reconstruct disputants’ cultural frame of references in his/her mind, help parties understand their own cultural framework and also assist them to understand the cultural frame of reference of the opposing party. By helping disputants gain knowledge of the true interests for fighting they are able to undress their fears and regenerate trust. . . . . Cohen (1997, 111-112) names three cross-cultural roles for the mediator – first of all, the mediator should be an interpreter, decoder, and explainer of the disputant’s culturally coded messages. With the help of these three factors the mediator is able to assist parties to communicate efficiently. Secondly, the mediator should be a buffer protecting both parties face, especially of those from cultures of high avoidance of face-loss. Thirdly, the mediator should be the coordinator of the incongruous negotiation methods and principles the parties bring to the negotiation table. Finally, it is essential to understand that the parties have to negotiate with each other as peoples and cultures, not as stereotypes (Sloan 1999 qtd. in Blackstock 2001, 16).

Boulle (2001, 6) names various cultural factors that have an effect on mediation. First of all communication, verbal and non-verbal, is affected by the cultural background of participants. Secondly, approach to time, negotiation, and problem solving differ from culture to culture. Thirdly, disputants from different cultures may have conflicting attitudes towards privacy issues and the involvement of the third party, the mediator. Moreover, mediation participants may view roles of lawyers, assistants and other advisors differently. Fourthly, people may have diverse mind-sets about personal boundaries and physical space, and fifthly they may view and accept compromising and concession differently. Additionally, relationship values are seen differently in different cultures. Interculturally competent mediator should pay attention to the factors mentioned in the figure in order to ensure smooth flow of mediation. . . . . Examples presented in this chapter give an idea of conflicting cultural frames of reference. The following examples are presented only to give an idea of the diversity of issues to be taken into account in intercultural mediation. Various examples are generalizations and may not be applicable to every situation. Their purpose is merely to create the appetite for further discussions.

The examples are seen from the mediators’ or the adversaries’ perspectives respectively. Cohen (1997, 107-108) brings an interesting comparison to the daylight. According to him North American mediators assist communication and search for alternative resolution models in an impartial and professional way. This approach is instilled in the Christian morality according to which “blessed are the peacemakers”, whereas in the Middle-East the mediator, who is selected from a group of local distinguished people, is expected to bring the resolution by protecting parties honour and favouring the weaker party’s claims. Contrary to the western mediation practice, Middle Eastern mediators’ priority is not ethics, but the benefit of the community. Culture defines the roles of the dispute, creates norms and determines meaning, but does not encode our specific behaviour. (Cohen 1997, 108).

Participants of the mediation process should also understand that the mediation has his/her own cultural assumptions. These cultural assumptions may not always be appropriate for particular cultures in conflict. Mediator neutrality is one of the cultural assumptions that may not be accepted by both parties.

For instance, mediation providers for Australian Aboriginal people should ensure that they offer what the minority group wants in the way they want it rather than what and how Anglo-Australian dominant culture thinks they should receive it. The non-Aboriginal methods of mediation may be adversative to the needs and interests of Aboriginal communities. As an example Kalowski (qtd. in Astor et al. 2001, 171) states that Aboriginal mediation engages in converting a person or people who have committed an offence against social norms of the community, whereas in non-Aboriginal mediation the objective is to reach an agreement on the given issue. The disparity is that Anglo-Australians seek for settlement on issues, whereas Aboriginals try to settle relationships.

Chia et al. (2001, 57) state that the Chinese-Malaysian mediation practices concentrate on resolving the conflict in a way that harmony can be restored and future disputes can be prevented from arising. The principal objective is to reach harmony among the disputant’s network of friends and family with the goal in harmonising the community. The actual agreement is not considered as important in communalistic cultures – the significance is placed on restoration of relationships.

Parties may be asked to compromise for the common good of the community and parties may settle with reasonable solutions rather than optimizing achievements. LeResche (1992, qtd. in Chia et al. 2001, 58) states that in cultures aiming at interpersonal harmony the objective of mediation is to preserve present relationships, save one another’s face, reiterate appropriate code of conduct in an interdependent manner. In these cultures, conflict is usually placed in wider context, such as the community. Thus, the mediator’s task is to be a promoter of community values and interests.

In contrary, in western mediation practices the mediator is expected to focus on maintaining parties’ independence and sovereignty in reaching the resolution. Parties are given freedom to address their interests and conflicting matters. The mediator’s task in maintaining the existing relationships does not go further than what is necessary for the parties to be able to negotiate and state their concerns in a constructive manner. Disputants can decide themselves whether they place value on preserving the relationships or not. (Chia et al. 2001, 58).

In western individualistic cultures the mediator’s role is limited to the borders set by the disputants, whereas in collectivistic cultures the conflict is seen in a wider perspective – its effects are reflected through the community. The mediator, who is considered the guardian of proper social conduct, thus has the responsibility to resolve the conflict from the community’s point of view. This collectivistic approach therefore affects the mediation process remarkably. As Trompenaars (1993, qtd. in Chia et al. 2001, 64) defines, collectivistic cultures place emphasis on demands and signals from outside when deciding one’s responses and actions due to the outer-directed nature of the culture. Collectivistic cultures integrate details into relationship patterns that cover the broader context. Additionally, Triandis, McCusker and Hui (qtd. in Bhawuk & Triandis 1996, 21) have found out that members of individualistic cultures perceive their in-group more heterogeneous than the out-groups, whereas the opposite takes place with collectivistic cultures. In other words, collectivists focus on values increasing their in-group’s wellbeing and have closer social behavior toward the in-group members that toward the out- group members. Individualists concentrate more on individual goals.

According to Chia et al. (2001, 58-59) western mediators facilitate the process without determining the faulty party or actions, whereas Chinese-Malaysian mediators for instance make a distinction between parties’ right and wrong behaviour and actions. The approach is that both parties’ conduct is faulty, because otherwise there would not be a conflict. The non-western attitude towards conflict is that it does not arise unless inappropriate conduct in human relationships. At times the other conflicting party may want to use mediation as a graceful way to back down without losing face. This may happen if the other party is not willing to admit being wrong in the fear of losing face. (Chia et al 2001, 58-59).

Compromising is considered in Chinese cultures a sign of weakness, which results in loss of face. In Chinese culture the disputants use the mediator as a façade that assists them in admitting the wrong-doing without causing them to lose their face. The mediator defends both parties by ensuring that each other has their own logic. (Chia 2001, 59). Additionally, the Chinese favour termination of conflict to resolution of conflict. When problem is distinguished, it is usually dissipated in preventative manner so that the conflict does not escalate and expand to a severe conflict. Due to the collectivistic nature of the Chinese culture, Chinese consider conflicts messy, because they are communal, not personal.

As stated previously, collectivists are more interested in social harmony than individual rights. Due to the previously mentioned facts, litigation as a conflict resolution method would be against the search for harmony and would cause anxiety at direct disagreement. Therefore, if the conflict is unavoidable, mediation is the most suitable method of conflict resolution. Litigation would also run counter to the Confucian spirit of self-criticism, according to which the best way to resolve a conflict is by making it possible for both parties to save their face. If parties insisted on rights by demanding a law case, losing face would be inevitable for the loser party. According to the Confucianism the social structure determines each individual’s place in the society and if people obey the rules set for their rank, there will be peace. Mediation process fits the ideology well; because in the process individuals can be reminded of their place in the society. Therefore, mediation is culturally ideal for the Chinese culture aiming at harmony, collectivistic good, and face-saving. (Bee Chen Goh qtd. in Boulle 2001, 7).

In the preliminary phases of negotiations, the importance of the background of the conflict is seen differently by different cultures. Africans, Japanese, Indians and Iranians are highly interested in the history of the dispute and thus want to dedicate more time for this procedure than the Americans, who are more future-oriented. (Leeds 1989, qtd. in Halpern 1992, 83).

For instance, the British and the Chinese are past-oriented cultures, which in conflicting situation would look back to see how things are done in the past. The Chinese have a saying “Consider the past and you will know the present”. Latin Americans and Filipinos are examples of present- oriented cultures.

In conflicting situation present-oriented cultures could be considered inefficient, due to the nature of their culture – present-oriented cultures are not very eager to plan things that they consider are out of their control. On the other hand, American and Scandinavian cultures, for example, are future-oriented cultures, that in conflicting situation look further beyond the agreement and want to achieve objectives as soon as possible, so that they can move on to next objectives. (Samovar et al. 1998, 168-169). Brigg (2003, 287) questions the western way of approaching mediation – according to him western mediation practices lack recognition and awareness of different ways of selfhood. By this he refers to the western approach according to which conflict is destructive way of being and should be avoided.

This perspective does not leave space for the non-western perception of conflicts being constructive and productive. According to Nadel (qtd. in Brigg 2003, 289) western cultural background fosters attachment to harmony models and thus conflict is to be avoided. In western cultures conflict needs explanation and is therefore bad, whereas behaviour that does not need to be explained is valued. Western cultures that have given rise to the movement of mediation consider maintaining and achieving peace problematic, whereas some cultures see no problem at it whatsoever. Nadel (qtd. in Brigg 2003, 289-290) argues that among Melanesian and Australian Aboriginal cultures, for instance, conflicts are tolerated and can even be considered entertaining and enjoyable. Attitudes toward conflicts are related to interpersonal relationships and the formation of political communities. According to Angell (1965 qtd. in Brigg 2003, 290) in case people are not hesitant about their social unity, they are more willing to get involved with conflicts. For instance, some Papua New Guinean cultures regard conflicts as one of many methods of creating and maintaining groups – therefore conflicts are considered constructive, whereas in western societies groups give rise to violent confrontations.

As seen in the previous examples, cultural differences create various challenges to cross-cultural mediation. The objective of cultural learning is to develop a more integrated world view so that disputants are more competent to cope with cultural differences and are therefore able to dig into the true reasons and interests causing the conflict. As Taylor (1994, 390) states this more integrated perspective is a result of a learning process including personal experiences, certain actions and practices. According to Mezirow (qtd. in Taylor 1994, 390) learning is the creation of meanings to an experience that is seen through one’s meaning perspective (or world view or frame of reference).

Therefore, when a person is confronted with experiences that do not fit his/her frame of reference he/she has to revise this framework in order to survive and reach the objectives.

Implicit Bias

Introduction to Implicit Bias

An implicit bias is one that the person is unaware of or misinterprets. Everyone has implicit biases – and, of course, they don’t know it exists or that they are acting on it. The concept looks at bias from an ‘inward’ perspective and to unmask ‘outward’ projections of implicit bias.

Understanding implicit bias and developing strategies to neutralize it, at a conscious level, is basically an “affirmative” step to intentionally change the individual’s mindset and collectively, our culture, creating a type of ‘cultural determination.’ This affirmative step is in contrast to a more typical cultural change applying unconscious, ‘cultural diffusion’ through ‘cross-cultural relationships,’ or, it may be an attempt to ‘jump start’ cultural diffusion at a conscious level. Implicit bias is ‘individual’, even if there exists a more collective, organizational (or cultural) bias. Unraveling implicit bias, thus, becomes a person-by-person task.

The concept of implicit bias is nothing new. Even the use of “jury selection experts” to identify or predict implicit biases is somewhat common in our society and culture. The relevance, however, is heightened because of a cultural and societal desire to more proactively deal with it, along with advanced methodologies to identify such biases.

As a simple example, look at two parent-coaches in a youth sports league. Both Parent X and Parent Z have implicit biases regarding their own kid’s involvement on the team, in practice and in games. Parent X acts upon this bias, regardless of the actual or perceived skill sets of the kid, to create more opportunities for their kid to excel – favoritism. Parent Z, in contrast, consciously seeks to avoid any perception of favoritism, and reduces the opportunities for their kid to excel. Neither parent is benefiting their kid, the team, or other stakeholders (e.g. other parents). In fact, there may be unintended, negative, consequences both short-term and long-term. Thus, recognizing the implicit bias, shining some light on it, and consciously dealing with proactive strategies to deal with it, has a much stronger chance of more favorable outcomes at an individual, family, group and organizational level.

In simple terms, academics saw that from a traditional “behaviorist” standard, (USA or Western) post-modern culture and society is in a post-racist, post-sexist, post-ageist society. There are certainly more negative exceptions to this positive axiom than we would like, but as a society or culture, we are there. Further, the legal system and its promise of ‘blind justice’ has continuously sought to eliminate bias in the administration of justice and the law. So, what’s up?

The realization remains, however, that things like ‘statistical biases’ exist – why? Researchers began developing testing models to explain on-going outcomes that did not show an absence of bias. Eventually, testing models were developed to capture ‘implicit’ biases . . . biases potentially held by every individual. . . and the person didn’t even know it.

For example, outwardly, a person might be an active feminist, and certainly not a sexist, but if the person tests their “implicit” bias, it would reveal that the person (male or female) subconsciously associates males with roles in science, math and high-finance, and women in artistic, creative, or stronger homemaker roles. In other words, a person can have an implicit bias about gender roles, race (and many other things), but not be a sexist, racist or other ‘ist’.

While the research dealing with implicit bias remains relatively new and emerging, there are strong hypotheses that implicit biases may have stronger impacts on outcomes (including legal) than concepts of cultural, societal, or psychological behavioral aspects.

Using “implicit bias” strategies, currently, is more focused on “introspection” of the individual. However, using “organizational survey” techniques, researchers are working to develop surveys, with individual responses, that better predict various implicit bias in a given group or organizational culture. One of the concerns in attempting to quantify bias using a social-science methodology (mostly statistical), is that such methods need to avoid having their own implicit- biases to reach a pre-determined result. Advances in neuro-science and computer-modeling will likely assist in developing more reliable data and understandings.

The spectrum of potential biases is unlimited, plus there is a complexity to combined or overlapping biases. For example, a female in a racial minority category takes a series of implicit-bias tests. She shows a relatively neutral viewpoint on racial distinctions, but a strong bias for associating females in non-science fields. What is the potential, implicit bias impact if this person is a hiring manager for a company, or a sixth-grade school teacher?

Implicit bias, can also be associated with the same internal mechanisms we use for safety or better decision making. A person may not have a cognitive awareness of a particular rationale, but, “senses something,” “it doesn’t feel right,” “I don’t know why, but I don’t trust the situation,” and the list goes on. Some implicit biases may be considered good, justified or healthy. For example, an implicit bias against a person with spendthrift spending habits, may be healthy or justified in dealing with developing a personal relationship such as marriage or a business partnership; a bias against high-risk, adrenaline-junky activities, or letting a driver self- determine when they’ve had too much to drink, may avoid a trip to the emergency room.

Implicit biases exist for ‘personal preferences.’ Physical attraction to various personal characteristics, attendance or non-attendance at a particular house of worship, emotional reactions to a particular team winning or losing, or a desire to go (or not go) to a particular music concert, are all influenced by implicit biases, even if there are also external, conscious biases. While it is a more complex topic, personal preference biases are not necessarily unhealthy, provided that various lines are not crossed.

Using cultural determinism, in our post-modern culture, implicit biases, as they apply to cultural diversity, (e.g., gender, race, age, national origin, disabilities, religion, sexual orientation), are unhealthy and are not justified. Dealing with implicit biases as they apply to persons such as, decision-makers, leaders, or persons in authority, become even more critical.

While there is more focus in this presentation to look at implicit bias as it applies to cultural diversity, a mediator must be aware that implicit bias applies to a vast array of potential characteristics or issues, and even biases beyond the individuals involved. The structured, civil litigation system itself contains procedural, implicit biases. The “style” of mediation or ADR process can be layered with implicit biases. Negotiation styles and methods often involve implicit biases. Biases about plaintiff versus defendant “thinking”, the attorneys, the law firms, the sibling, spouse or child of a participant…and the list goes on.

The mediator has a complex ‘added’ duty in understanding implicit biases. Not only must a mediator attempt to bring their own implicit biases to a conscious level and take proactive actions to debias, (know thyself), but the mediator may need to recognize the implicit biases that the parties and their attorneys may bring to the negotiation table, and determine appropriate courses of action to debias the process. First, since, by definition, a person is not aware of implicit bias, directly pointing out a bias of another person may have a destructive impact on the ability to reach a negotiated outcome. Second, attempting to identify implicit biases of another person can be destructive, and, in fact, may be wrong. Implicit biases typically grow out of conscious and subconscious cultural and life experiences or associations that can even go back to childhood.

Be careful! The “Catch 22” - When a mediator forms an opinion about another person’s implicit bias, that process, on its own, creates a bias for the mediator, or may be based upon the mediator’s own implicit biases – biases of which the mediator is not aware.

When a person in the mediation demonstrates a rather ‘obvious’ bias (yet it is implicit to the person), a mediator needs to determine what direct or indirect actions can be taken to eliminate the bias within the mediation process. Mediation can be a fantastic tool to develop long-range systems to work to eliminate implicit bias, especially at a company-cultural level (and those cases do exist where that’s part of the negotiated outcome); however, in most civil mediation cases, the goal is not to create, develop and implement a cultural diversity system to deal with implicit biases for the long term.

Yet, a mediator who cognitively engages implicit bias strategies (especially for themselves) will enhance the possibility for better negotiated outcomes through the facilitated negotiation process.

Implicit Bias (Perception Institute, perception.org, 2019)

“What is it? Thoughts and feelings are “implicit” if we are unaware of them or mistaken about their nature. We have a bias when, rather than being neutral, we have a preference for, (or aversion to), a person or group of people. Thus, we use the term “implicit bias” to describe when we have attitudes towards people or associate stereotypes with them without our conscious knowledge. A fairly commonplace example of this is seen in studies that show that white people will frequently associate criminality with black people without even realizing they’re doing it.

Why it matters: The mind-sciences have found that most of our actions occur without our conscious thoughts, allowing us to function in our extraordinarily complex world. This means, however, that our implicit biases often predict how we’ll behave more accurately than our conscious values. Multiple studies have also found that those with higher implicit bias levels against black people are more likely to categorize non-weapons as weapons (such as a phone for a gun, or a comb for a knife), and in computer simulations are more likely to shoot an unarmed person. Similarly, white physicians who implicitly associated black patients with being “less cooperative” were less likely to refer black patients with acute coronary symptoms or thrombolysis for specific medical care.

What can be done about it? Social scientists are in the early stages of determining how to “debias.” It is clear that media and culture makers have a role to play by ceasing to perpetuate stereotypes in news and popular culture. In the meantime, institutions and individuals can identify risk areas where our implicit biases may affect our behaviors and judgments. Instituting specific procedures of decision making and encouraging people to be mindful of the risks of implicit bias can help us avoid acting according to biases that are contrary to our conscious values and beliefs.”

* * * * * * * *

[Editorial Note: While a Mediator does not “decide” any issue in the mediated conflict (and a Judge is a decision-maker) the same concepts involving “implicit bias” apply to serving in a “neutral capacity” in a civil litigation conflict]

Five Steps to Help Mitigate Implicit Bias on the Bench

By Joseph Sawyer Director of Online Learning & Faculty Development

1. Don’t even start until you can admit this to yourself

No human being is unbiased. You have to acknowledge that you are not the exception to this rule. You also must be highly motivated to overcome your biases. Without strong internal motivation, research tells us that you will not be successful in conquering your biases.

2. Identify your biases

Implicit biases are, by definition, unknown. You can’t hope to dismantle your implicit biases until you discover what they are. Start by taking the Implicit Association Test offered free online by Harvard University. Then review your sentencing patterns for bias. Have a trusted colleague observe you in court and provide feedback on how you treated litigants and defendants of different backgrounds, genders, and ethnicities.

3. Decide which of your implicit biases to address first

Don’t try to tackle your implicit biases all at one time. Focus on the most pressing ones that impact your docket and community.

4. Identify and acknowledge individual differences

Lady Justice wears a blindfold. You can’t. You have to learn how differences in people may affect your thinking. You can do this by…

• Putting extra effort into identifying the unique aspects of stigmatized individuals • Being aware of what you’re thinking when confronted by initial identifying factors that can lead to stereotyping (differences in race/ethnicity, gender, language, etc.) • Working on embracing all the diverse members of the human family • Appreciating the individual differences in people.

5. Slow down

Your biases are more likely to affect you and court users in times of stress. Focus on conscious decision making. Do everything on purpose by being deliberate. Consider rules carefully. Don’t run your court on auto-pilot.

These are just a few of many strategies for ensuring that judges treat all court users fairly.

(National Judicial College, January 28th, 2019)

Playing Favorites? Implicit Bias on the Bench

Prof. Michele Benedetto Neitz -Golden Gate University School of Law

(The Bench, Fall 2018)

“What is Implicit Bias and In-group Favoritism?

When Starbucks announced that it would close all of its 8,000 stores for a few hours on a Tuesday afternoon in May 2018, its customers and employees were surprised. The company closed its stores to require all of its employees to attend a half-day training on implicit bias. The training was a response to the inappropriate arrest of an African- American man at a Starbucks in Philadelphia.

By closing its stores and losing an estimated $12 million that Tuesday afternoon, Starbucks intended to send a message about the importance of inclusion and diversity. The company’s actions also prompted a debate about implicit bias and the effectiveness of such trainings.

The concept of implicit bias has moved to the forefront of public discussion in the last decade, and many judges have already been trained on this issue. But it is worth considering how a specific type of implicit bias, in-group favoritism, may affect a judge’s everyday decisions.

Implicit biases can be defined as the attitudes or stereotypes that affect our minds in an unconscious manner. Because they are unconscious, implicit biases can be activated without our awareness or control. In some cases, our implicit biases may differ from our explicit beliefs. For example, a “career woman” who has spent her life advancing the ladder in a corporate law firm may hold an implicit bias that women are actually supposed to be home with children. How can there be such a disconnect? The answer lies in the fact that implicit biases stem from exposure to direct and indirect messages beginning in childhood. If a teacher or parent reinforced the message to a child that women may subconsciously harbor a version of that stereotype without her awareness.

Everyone holds implicit biases. They may be based on associations related to gender, race, age, disability, sexual orientation, or socioeconomic status. Even individuals with avowed commitments to impartiality, such as judges, hold implicit beliefs that can affect their actions and decisions without awareness. In some cases, such as the corporate lawyer described above, these biases may actually contradict our explicit beliefs.

This is a particularly important issue for judges. Judges are among the most educated members of our society, and it would be comforting to believe that judges, more than the general population, can avoid the influence of implicit bias. To test this theory, two empirical studies recently examined implicit bias among judges. Both studies concluded that judges manifest implicit racial and other biases. For judges, therefore, it is especially critical to examine and challenge any implicit bias that may be unintentionally influencing the decision-making process.

Implicit biases may not always operate as hostile beliefs against a particular group. In fact, as privileged members of the legal profession, judges may be particularly influenced by a type of implicit bias called in-group favoritism. With in-group favoritism, the personal connections individuals have with another person can affect favorable feelings, judgments and actions toward that person. In-group favoritism can be based on shared characteristics such as race, religion, educational background or even a shared birthday.

For example, a judge selecting law clerks may unconsciously prefer to hire clerks from her law school alma mater, on the implicit assumption that it will be easier to work with a graduate from her own school. This decision is not motivated by hostility toward students from other law schools, but is simply based on the shared experience of the alma mater. Another judge may decide opinions in favor of a litigant who shares his ethnic background because his story seems more “plausible.” Again, this decision is not based on the judge’s negative attitude toward the other defendant, but is based on a shared background.

Professor Anthony Greenwald theorizes that in-group favoritism actually has more discriminatory impact than outright hostility, because it is insidious and “unremarkable.” Although the examples above were not motivated by hostility or negative beliefs, the end result is the same: the clerk applicants from other law schools are not hired, and the defendant who does not share the ethnic background of the judge loses his case.

Given that judges hold a prestigious place in our profession, with a great deal of power and discretion, the presence of in-group favoritism could mean that members of a judge’s “in-group” have more access to privilege. This could include prominent jobs (such as clerkships), favorable opinions in court, and even something as minor as letters of recommendation for future employment opportunities. In-group favoritism becomes more concerning when one looks at the demographic statistics of judges. Although California is one of the most diverse states in the country, California judges and judicial officers are overwhelmingly white and male. This simply means that judges should be aware not just of potential negative implicit biases, but also of the ways in which they may be more inclined to act favorably toward members of their in-group.

There are a number of methods available to test the prevalence of implicit biases.

The Implicit Association Test (“IAT”) is an online test that pairs an object (such as a gender or racial group) with an evaluative component (such as good or bad). A participant will attribute the evaluative dimension to the object by pressing a response key on the keyboard as quickly as possible. For example, a gender IAT would ask participants to respond to an image of a woman with “home or career,” or “science or arts” responses. Because the response key is pressed automatically, without time for consideration, the response speed of the participants indicates whether implicit attitudes exist. The responses from an IAT can be very illuminating, particularly for individuals who hold implicit biases that differ from their explicit attitudes.

The IAT is not a perfect method. Some critics have noted that it is difficult, if not impossible, to measure whether someone’s beliefs are fully subconscious or only partially subconscious. Other critics have argued that the IAT is not helpful unless it can actually predict real-world behaviors. For example, if an IAT shows that I have an implicit bias against scorpions, but I never actually manifest that bias in real life, what does that IAT result actually mean? In fact, several studies have shown an actual connection between implicit biases and real- world discrimination. While the IAT is not perfect, it remains a useful tool for identifying implicit bias.

Additional methods for establishing the existence of in-group favoritism are especially available for judges, who literally have a record of the decisions they make on the bench on a daily basis. A judge interested in determining whether implicit biases are affecting her opinions could ask the court for a data set of her opinions. For example, a criminal court judge could review statistical data to learn whether she tends to sentence defendants of color to longer terms than white defendants. A family court judge could review data to reveal whether she grants custody more often to mothers or fathers. An immigration judge could do the same to find out whether he grants asylum more often or less often to applicants from particular countries, or whether he favors applicants who share his ethnic heritage. In some cases, statistics may say more about the judges’ unconscious beliefs than any anecdotal evidence.

How Can Courts and Judges Combat Implicit Bias and In-group Favoritism?

In an ideal world, judges would be able to take deliberative time with each case. This mindful behavior could minimize “snap” judgments and enable judges to consider whether their biases may be affecting their decision-making processes. In the real world, however, the fast- paced nature of California courtrooms leaves little time for consideration. How, then, can judges use their knowledge of implicit bias and in-group favoritism to ensure they are deliberating in a fair and neutral way? Judges can implement both personal and institutional remedies for implicit bias. The first step is awareness: recognizing how implicit bias manifests in a judge’s daily life. Taking one or more IATs would enable a judge to identify where implicit biases may exist in his or her subconscious.

But awareness alone is not enough. In addition to auditing the statistical data of their opinions, as described above, judges can take affirmative steps in their own courtrooms to combat the influence of implicit bias. For example, Judge Mark W. Bennett, Senior District Judge in the Northern District of Iowa and a leading expert on implicit bias, asked his probation officers to stop attaching photographs to probation reports. Judge Bennett was concerned that the photograph would trigger implicit biases that might affect his sentencing decisions. Without the photograph, Judge Bennett’s decisions are based only on the facts in his report. Judge Bennett also placed images designed to challenge stereotypes, such as pictures of immigrants becoming new citizens, in strategic places around his courtroom. He even included such images on the “screen saver” on his computer.

Judges could also take steps in their private lives to challenge implicit bias. A judge who lives and works in wealthy neighborhoods could venture beyond her comfort zone to the places where her litigants live. For example, a housing court judge who is often frustrated with defendants who are late to court could try taking the bus from a low-income neighborhood to court. In doing so, the judge may realize that it takes three buses to get to court, none of which tend to arrive on time. Going forward, the judge’s empathy and understanding for litigants from that neighborhood may reduce her frustration and result in more neutral decisions.

Judges should also press court systems to implement institutional remedies to address implicit bias. An important step would be modifying courtroom conditions. Judges, especially those in high-volume courts with overcrowded dockets, need more deliberative time to consider how their implicit bias or in-group favoritism may affect their decision- making processes. In this way, the atmosphere in a courthouse can affect the quality of the judging; judges who are not able to take regular breaks or consider cases in chambers cannot be expected to complete their dockets and minimize biases along the way.

Judicial burnout should also be a concern for anyone involved with the court system. One study found that immigration judges reported higher levels of burnout than any other group of professionals, including prison wardens and physicians in high-pressure hospitals. Rotating roles among judges may be one solution. For example, housing court judges could spend time in family court, and civil judges could spend a few months in criminal court. Moving to another bench or another courthouse could prevent burnout and offer a fresh perspective.

Starbucks seeks to be viewed as a corporate trailblazer against bias. With the power to decide the fates of millions of people each day, judges could be even more effective leaders in this area. As the neuroscience of implicit bias and in-group favoritism becomes more advanced, and as mainstream culture begins to accept the prevalent nature of such bias, judges have the opportunity to lead the charge toward a more fair and neutral court system—and a more fair and neutral society.” The Advantages of Bias at the Negotiation Table -

Researchers Russell B. Korobkin of UCLA and Chris P. Guthrie of Vanderbilt University suggest that knowledge of certain negotiation “biases” can be used as negotiation tools in bargaining. [as discussed by Harvard Law School – Dispute Resolution Project, PON Staff, November 2018]. “Anchoring” the negotiation with an extreme offer, influences the perceived “range” and can actually change the opposing side’s beliefs on the negotiated outcome. “Availability bias”- coming to the negotiation table with ‘hand-picked,’ available, comparative information, can persuade the opposition the change perceptions on the negotiated outcome – such as, using past high/low jury verdicts on similar issues. “Framing” an issue with potential gains for the opposition through a negotiated outcome, can cause the opposition to be less, risk- adverse, builds a sense of trust (win-win) and allows the opposition to think in terms of not giving-up the potential gains. Initiating option-offers, the opposition will often focus on the difference in the options as opposed to the to the net amount – such as, $60,000 today, or two annual payments of $20,000 with a $20,000 payment to a not-for-profit chosen by the opposition.

The point is that an effective negotiator should both focus on their own negotiating biases and attempt to know, or reasonably predict, the negotiation biases the opposition has.

Social Science and Cultural Competence

The social sciences are academic disciplines concerned with the study of the social life of human groups and individuals.

Fields of study include, but are not limited to, anthropology, sociology, communications studies, linguistics, economics, geography, history, political science, psychology, musicology, human geography, jurisprudence, and public health. [Wikipedia, general source].

Social science is often contrasted to ‘physical’ or ‘natural’ science – sometimes called, ‘hard sciences,’ such as physics, chemistry, biology, engineering, math and computer science.

“Scientific method” typically means the development of a hypothesis, developing a method of testing the hypothesis (experiment), conducting testing in a consistent environment (non- variable, or, ‘laboratory conditions’- often involving a “control group” not subject to variables), introduction of a defined variable, deriving a ‘quantitative’ result, and then repetition of the experiment to determine consistent quantitative results.

Scientific method is designed to derive ‘scientific fact’ in developing rules, principles and physical laws.

Combinations of social and hard sciences have also created great discoveries – carbon dating and archeology, physiology + anatomy + physical anthropology + criminology = forensic anthropology. Even the popular movie, It’s a Beautiful Mind, portrays the true story of mathematician, John Nash, developing a formula to predict outcomes in complex negotiations, even at the international level – leading to a Nobel Prize.

Social science typically derives ‘qualitative’ results, (as opposed to ‘quantitative’). The number and complexity of variables in a social science make replication of experimentation through scientific methodology difficult, or sometimes impossible.

For example, some academics will strongly contend that sociology is inherently not a science, especially when the alleged ‘quantitative results’ are based in statistics:

Social Science is not a “science”: • Use of scientific methodology – testing a hypothesis with too many complex variables to establish reliable, laboratory testing methods • Lack of objectivity in methodology model (although some academics argue that all scientific testing has subjective bias – the hypothesis is subjective in itself) • Lack of measurement – quantitative analysis (primarily statistical testing); however, finding a correlation does not necessarily resolve a ‘scientific inquiry’ – a sociologist can find higher or lower comparative rates of murder or suicide, but with all the potential variables, the method does not create a scientific principle or law. • Unpredictable nature of human behavior, especially at the individual level. Even developing a statistical model of predictability ends up with uncontrollable variations, i.e. it doesn’t happen every time. • Generalization. Sociology requires generalization and does not show recurrent patterns (like physical objects) that allow provable scientific principles or laws.

(5 Objections against Sociology being called a Science, Puja Mondal, yourarticlelibrary.com).

This debate can grow louder with certain social sciences, such as history, political science and economics.

The issue is not whether a social science “result” is true or valid, but whether it is actually a scientific result and can be ‘relied’ upon in developing a static, rule, principle or law. [Editorial query: would the scientific development of a working ‘time machine’ actually change minds in debating a historical event?]

People engage in these social-science/science debates all of the time, such as, when does life begin, human-made climate change, and gun control. In a pure science theory context, conclusions, “based upon scientific consensus,” can be troubling. Or, as attributed to Mark Twain: “there are three kinds of lies: lies, damn lies and statistics.” A research method or analysis where the conclusion alleges a provable, cause-effect result, despite errors in the method, analysis, or data, often creates significant problems with quantitative statistical modeling, and more so with subjectivity inherent with qualitative results.

Research conclusions and theories developed through both qualitative and quantitative analysis in social science can be highly useful. Businesses often rely upon such research to make predictive investment decisions. Often, research, in its original form, provides various caveats regarding interpretation or misinterpretation of data or conclusions. In part, this is because social science is more focused on ‘predictive’ factors, as opposed to ‘absolute’ factors. At the same time, it is not unusual for people in all spectrums of society to selectively-edit, misstate, or erroneously apply social science research to facilitate positions and argument.

Research results in both hard-science and social-science can also suffer from inaccuracies because of conscious or implicit bias. Bias can occur in the hypothesis, the methodology or even the interpretation of data. “Peer review” was traditionally considered an important, if not reliable method of providing checks-and-balances regarding research results.

Unfortunately, in our post-modern society, continued problems are discovered in various research or its interpretation. For example, the tobacco industry spent years developing and publishing scientific research pronouncing the safety of smoking in relation to various illnesses and diseases. When research errors are discovered, various rationale (excuses) are proposed - from pressure on academic researchers to produce, influence from funding sources, or scant peer review because the reviewers want the research results to be true (intellectual bias). The relative ease of publication and mass distribution through Internet resources can also perpetuate the problem.

“We all know the truism, “correlation doesn’t imply causation,” but when we see lines sloping together, bars rising together, or points on a scatterplot clustering, the data practically begs us to assign a reason. We want to believe one exists.”

“Statistically we can’t make that leap, however. Charts that show a close correlation are often relying on a visual parlor trick to imply a relationship. Tyler Vigen, a JD student at Harvard Law School and the author of Spurious Correlations, has made sport of this on his website, which charts farcical correlations—for example, between U.S. per captia margarine consumption and the divorce rate in Maine.“

“Vigen has programmed his site so that anyone can find and chart absurd correlations in large data sets.” (“Beware of Spurious Correlation,” Harvard Business Review, June 2015).

In defense of the “science” in “social science.” Academics often do attempt to apply ‘quantitative analysis’ to the developed hypothesis. The most frequent quantitative analysis, however, is “statistics.” Social scientists also contend that qualitative analysis (developing the ‘theory’) typically precedes the scientific method in developing the quantitative results. (e.g. it took decades, after Einstein developed the ‘theory of relativity”, for astronomers/astrophysicists to develop a testing method -- curvature of light surrounding a solar eclipse).

Further, certain sub-fields of social science are much closer aligned with hard-science, such as forensic anthropology, epidemiology, or forensic psychiatry. Advancements in hard-science areas, such as, computer modeling, algorithms, genetics and DNA sequencing, are creating more and more overlaps between social and physical sciences.

Anthropology studies “culture.” Sociology studies “society.”

Anthropology is referred to a ‘wholistic science’ since it borrows from many fields of study to develop the research design and in developing conclusions – psychology, sociology, geology, chemistry, anatomy, biology, genetics, and now the super computers from computer science. Anthropology studies human behavior more at the individual level, while sociology focuses more on group behavior and relations with social structures and institutions. Anthropology is also a collection of sub-fields: cultural anthropology, ethnology, archeology, physical anthropology, and forensic anthropology. Some of these fields have a higher reliance on physical and natural sciences.

Anthropology and Sociology both use qualitative and quantitative methodologies, (quantitative - mostly using statistical modeling or analysis).

Generally, anthropology seeks to understand human diversity and cultural difference, while sociology is more solution-oriented with the goal of identifying and fixing social problems through policy or other cultural mechanisms.

Sociology

Sociology is the scientific study of society, including patterns of social relationships, social interaction, and culture. The term sociology was first used by Auguste Comptet in the 1830’s when he proposed a synthetic science uniting all knowledge about human activity.

Dictionary of the Social Sciences, Article: Sociology. Edited by Craig Calhoun. 2002. New York : Oxford University Press.

“Sociologists study all things human, from the interactions between two people to the complex relationships between nations or multinational corporations. While sociology assumes that human actions are patterned, individuals still have room for choices – free-will or self- determination. Becoming aware of the social processes that influence the way humans think, feel, and behave, plus having the will to act, can help individuals to shape the social forces they face. . . .

Sociologists believe that our social surroundings influence thought and action. For example, the rise of the social sciences developed in response to social changes. In the sixteenth and seventeenth centuries, Europeans were exploring the world and voyagers returned from Asia, the Americas, Africa, and the South Seas with amazing stories of other societies and civilizations. Widely different social practices challenged the view that European life reflected the natural order of God. . . .

In the eighteenth and nineteenth centuries, Western Europe was rocked by technical, economic, and social changes that forever changed the social order. Science and technology were developing rapidly.”

[Industrial revolution, dissolution of monarchies, population growth, enhanced food production and agriculture].

Interestingly, Sociology was taught by that name for the first time at the University of Kansas in 1890 by Frank Blackmar. The course was titled “Elements of Sociology,” where it remains the oldest continuing sociology course in the United States. The first academic department of sociology was established in 1892 at the University of Chicago by Albion W. Small, who in 1895 founded the American Journal of Sociology.

(Introsocite – Introduction to Sociology – American Sociological Association, 2008.)

Anthropology Anthropology Perspectives Developing Cultural Competence, Diversity, Inclusion and Implicit Bias

The post-modernism topics of cultural competence, diversity, inclusion and implicit bias have been a central part of anthropology for more than a century, both in terms of methodology and specific studies. Franz Boas was a German-born scientist who migrated to the United States in the late 19th Century and is considered the “Father of modern anthropology.” (Boasian Anthropology: Historical Particularism and Cultural Relativism - edited by Parker Robbins, 2010)

Boas introduced the idea that “culture” was what differed between races and ethnicities (not biology or genetics). Boasian anthropology changed the idea of culture, as a whole, from what a person, "ate, drank, religious views and their music tastes," to the complete “mental and physical reactions and activities that characterize the individuals of a social group." Franz, Boas, "Race, Language, Culture." 1940 – Collection of Prior Published Academic Papers, (University of Chicago Press 1982). Boasian theory in ethnology began with a conclusion that each culture was ‘fully developed’ and prior concepts of ‘primitive’ compared to ‘civilized’ societies, or an ‘evolutionary’ process eroded.

Since about 1881, Boas had been developing his hypotheses on cultural analysis and methods of deriving solid data. Academic belief (leading to political and public belief) was based in concepts of ‘inferior’ and ‘superior’ races, leading to superior cultures. Keep in mind, that in the 1800’s, the term “races” included, Irish, German, Swedish, Italian, Jewish, Arab, African and other groups. As technology and the need for workers increased with the Industrial Revolution, society was struggling with the diversity occurring within it.

“In 1889, G. Stanley Hall hired the inaugural faculty of Clark University in Worcester, Massachusetts. Franz Boas was hired as part of a stellar team of scientists and researchers at Clark, which sought to rival Johns Hopkins as the nation’s leading research university. Serving as a docent and teaching twice as much as his colleagues on the regular faculty, Boas launched an aggressive program researching growth and racial plasticity to complement his ongoing research in ethnography and folklore.” Franz Boas out of the Ivory Tower, Lee D. Baker. Duke University, Sage Publications (2004); note: with some editorial inserts, excerpts of Baker’s book on Boas is heavily relied on and quoted). For well over a decade, Boas conducted and published his research almost exclusively in small academic circles. He was completely absorbed in revolutionizing the field of anthropology and was far from motivated toward the political world. (Id.)

“With an array of immigrants and a public-school system with half of its student body as ‘foreign-born’ or ‘children of immigrants’, Boas had at his disposal an ideal laboratory with which to gather data on “patterns of growth” from people with a wide range of backgrounds (Southwick, 1998: 38). With a proposal to study patterns of children’s growth, Boas quietly secured the permission of the Worcester school committee to set up a small station in each school for ‘measuring’ children.” (Id.)

As a public service, Boas also proposed testing the hearing and eyesight of each child from which he took head, girth, and height measurements (Worcester Daily Telegram, 3 April 1891).

Boas presented his research paper, ‘Human Faculty as Determined by Race’, at the annual meeting of the American Association for the Advancement of Science (AAAS). While the paper did not get wide circulation, it formed an important basis for a latter paper, The Mind of Primitive Man (1911), which did get wide circulation. Professor William Benjamin Smith brought national attention to Boas’ research when he subjected it to a paragraph-by-paragraph analysis in an effort to ‘refute it thoroughly’. (Id.)

Smith (1850-1934) was a professor of mathematics at Tulane. He wrote extensively in philosophical areas and had an expertise in translations of ancient Greek writings.

Smith was most famous for academically developing the “Christ Myth” theory. This theory proposed that there was not a historical person, Jesus, but a Jesus worship cult developed long before the assigned dates for when Jesus lived. If there was a physical man called Jesus, he was not the actual Christ in the myth of Christianity. His theories have been played out in many academic writings and even in various books and movies. (see the movie, The Man From Earth, 2007, or, The Last Temptation of Christ 1988).

Smith’s next claim to fame is tagging the obscure, but academically respected, Boas as a worthy adversary and dragging Boas into the public light to challenge Boas’ writings that debunked theories of racial inferiority, using refined ethnology methods along with physical anthropology.

“In Smith’s popular book, The Color Line: A Brief on Behalf of the Unborn, he committed an entire chapter to challenging Boas’ 1894 address to the AAAS, calling it ‘by far the ablest plea yet made for the “backward races”’. Smith framed his book by asking and then answering what he saw as a central question:

Is the South justified in this absolute denial of social equality to the Negro, no matter what his virtues or abilities or accomplishments? We affirm, then, that the South is entirely right in thus keeping open at all times, at all hazards, and at all sacrifices an impass- able social chasm between Black and White. This she must do in [sic] behalf of her blood, her essence, of the stock of her Caucasian Race. (Smith, 1905: 7, emphasis original) Smith used what he called ‘ethnological principles’ to defend the South’s rigid color line, explaining ‘that in the South the colour line must be drawn firmly, unflinchingly – without deviation or interruption of any kind whatever’ (Smith, 1905: 5, emphasis original).

Smith was unequivocal ‘that the Negro is markedly inferior to the Caucasian [and, it] is proved both craniologically and by six thousand years of planet-wide experimentation.

Smith’s whole argument rested on the notion that Africans and African Americans were the most inferior of the races both anatomically and culturally. He sought to ‘prove’ that sub-Saharan Africans had no art, religion, philosophy, or morality and West Africans in particular had never demonstrated ‘even one single aspect of civilization or culture or higher humanity’ (Smith, 1905: 32).

In the wake of Smith’s incendiary text, Boas published his first article about African Americans in a popular magazine. In the autumn of 1905, Boas wrote ‘The Negro and the Demands of Modern Life: Ethnic and Anatomical Considerations’ for the 7 October issue of Charities, which was a special volume addressing Negro migration. A modified version of the article that Smith had challenged, it was sandwiched between W.E.B. Du Bois, Booker T. Washington, and Mary White Ovington – the reformer who initially organized the NAACP (Boas, 1905). From that point forward, Boas was identified as an important scholar who could be called upon to help ‘uplift the race’. W.E.B. Du Bois wasted no time. Four days after that issue of Charities was published, Du Bois wrote Boas a letter inviting him to Atlanta University to address a conference scheduled for May of the following year (Du Bois to Boas 1905, 11 October).10 That letter, on the heels of Boas’ article in Charities, which came on the heels of Smith’s effort to attack Boas’ work, was the beginning of a long and profitable relationship between Du Bois and Boas and the endeavors they pursued (Baker, 1994).” (Id.)

“Changes in Bodily Form of Descendants of Immigrants (1910), which was the landmark study that proved critical in undermining the idea of racial typologies and rigid racial categories.

After a decade and a half of experiments, measurements, and careful documentation that took him from Oakland to Toronto, Boas began challenging some basic assumptions of physical anthropology while advancing biostatistics in the United States (Camic and Xie, 1994). These efforts culminated in a major study Boas conducted between 1908 and 1910 for the US Immigration Commission and published as Changes in Bodily Form of Descendants of Immigrants (1912). In it, he demonstrated that the environment played a significant role in determining physical attributes, like head size, which were so often used to demarcate racial difference (Stocking, 1974: 189–90).” (Id.)

Don’t Fool Yourself - Understanding basic terminology that Boas developed to study culture, should ease the transition for a person engaged in mastering cultural competence and better understanding implicit bias. At the same time, cultural “objectivity” is a noble goal, but ignoring inherent culturally “subjective” perspectives of the “viewer” can lead to erroneous perceptions or outcomes.

Cultural Relativism

“Cultural relativism involves neutralizing inherent biases between the ‘observer/scientist’ and the results of the observation. This requires the ability to understand a culture on its own terms and not to make judgments using the standards of one’s own culture. The goal is to promote understanding of cultural practices that are not typically part of one’s own culture.

Using the perspective of cultural relativism leads to the view that no one culture is superior to another culture when comparing systems such as morality, law, politics, or religion. The concept is that cultural norms and values derive their meaning within a specific social context. This is also based on the idea that there is no absolute standard of good or evil, therefore every decision and judgment of what is right and wrong is decided within each culture. “The concept of cultural relativism also means that any opinion on ethics is subject to the perspective of each person within their particular culture. Overall, there is no right or wrong ethical system. In a holistic understanding of the term cultural relativism, it tries to promote the understanding of cultural practices that are unfamiliar to other cultures such as eating insects, genocides or genital cutting.” [Courses.lumenlearning.com/cultural anthropology/cultural relativism].

“There are two different categories of cultural relativism:

Absolute: Everything that happens within a culture must and should not be questioned by outsiders. The extreme example of absolute cultural relativism would be the Nazi party’s point of view justifying the Holocaust.

Critical: Creates questions about cultural practices in terms of who is accepting them and why. Critical cultural relativism also recognizes power relationships.” (Ibid, lumenlearning.com).

Becoming aware of “cultural diffusion” and “cross-cultural” relationships will ultimately change the people that are exposed to the new ideas. This cross-cultural relationship provides hope that new opportunities will be discovered and not constrained by dogmatic cultural norms or prohibitions. At the same time, the concept of cross-cultural relationships can be threatening. The threat is that once the relationship occurs, one can no longer claim that any single culture is the absolute truth.

Ethnocentrism

“Ethnocentrism is the term anthropologists use to describe the opinion that one’s own way of life is natural or correct. Some would simply call it cultural ignorance. Ethnocentrism means that one may see his/her own culture as the correct way of living. For those who have not experienced other cultures in depth can be said to be ethnocentric if they feel that their lives are the most natural way of living. Some cultures may be similar or overlap in ideas or concepts, however, some people are in a sense, shocked to experience differences they may encounter with individuals culturally different than themselves. In extreme cases, a group of individuals may see another cultures way of life and consider it wrong, because of this, the group may try to convert the other group to their own ways of living. Fearful war and genocide could be the devastating result if a group is unwilling to change their ways of living.

. . . . Ethnocentrism may not, in some circumstances, be avoidable. We all often have instinctual reactions toward another person or culture’s practices or beliefs. But these reactions do not have to result in horrible events such as genocide or war. In order to avoid such awful things like those we must all try to be more culturally relative. Ethnocentrism is one solution to tension between one cultural self and another cultural self. It helps reduce the other way of life to a version of one’s own.” (Ibid., lumenlearning.com).

“Cultural relativism is an umbrella term that covers different attitudes, though it relies on a basic notion of emic coherence: Each culture works in its own way, and beliefs and practices that appear strange from the outside make sense when contextualized within their particular cultural framework.” Mayanthi Fernando, Assoc. Prof. UC Santa Cruz (2013), (Oxford Bibliographies DOI: 10.1093/OBO/9780199766567-0003).

Professor Fernando also describes the sub-sets of cultural relativism: “Descriptive relativism” - cultures differ substantially from place to place; “Methodological relativism” - the ethnographer must set aside his or her own cultural norms in order to understand another culture and explain its worldview; “Epistemological relativism”- since our own culture viewpoint impacts our perceptions, it is often impossible to understand another culture free from a filtered viewpoint; “Prescriptive or moral relativism” - a “viewer” cannot judge other cultures using the cultural norms of the viewer’s culture and pure objectivity is difficult if not impossible.

The problem, as stated by Professor Fernando is that, “At the turn of the 20th century, cultural relativism was a progressive anthropological theory and methodological practice that sought to valorize marginalized communities in an inegalitarian world. Now cultural relativism is criticized as doing precisely the opposite: allowing repressive and inegalitarian societies to hide behind the cloak of cultural difference.”

Historical Particularism refers to the idea that each culture has its own particular and unique history that is not governed by universal laws.

Historical particularism was developed by Boasians to contrast and effectively reject prior cultural ideologies relying on cultural evolution and comparative norms. Boas contended that cultural traits must first be explained in terms of specific cultural contexts, rather than by broad reference to general evolutionary trends. Boas argued that cultures cannot be compared or be subjected to generalities, because each culture experienced a different and unique history, even if it led to a similar cultural aspect. Traits that are culturally similar may have diffused through interaction with other cultures and not ‘evolved’ within the confines of that culture – a culture will still have its own history despite similar traits with other cultures. A general example is that an evolutionary application to look at “common” cultural traits between modern Japanese culture and Western culture would be erroneous without analysis of the cultural impacts arising out of World War II and a treaty compact to establish a Western-type Constitutional government.

Cultural Determinism is the belief that the culture dictates behavior widely through economic, political organizations, educational, and religious elements rather than our biological genes.

Circular Boasians – Blending these research methods, by the 1960s, some ethnologists believed that the only way to truly understand a culture was to become completely immersed in it, to the point in being able to completely shed the researcher’s prior culture. This concept was much more intense than the prior premise that ‘linguistics’ was a key component in ethnology and to understand cultural diversity – the researcher must be able to understand the culture purely through the language of the culture and then be extremely careful in translating it into a Western language. The problem, for a variety of reasons, the researcher was lost to the outside World, or it was determined that the culture could not be understood through translation or use of a more scientific methodology. Thus, virtually nothing academically came out of this “all in” methodology. Some debatable exceptions included the popularized book, “Black Like Me,” (John Howard Griffin, 1961), involving a young, white, male dying his skin, kinking his hair and attempting to fully immersing himself into a black community. The geographic, linguistic and community of interests between the cultures did not cause the same logistical problems. Also, Carlos Castenada, who immersed himself into the shaman world of indigenous Mexican Indians. Castenada’s Ph.D. confirmation was even delayed until 1972, in part, because he already had three, best-selling books describing the mystical world of shamans and the use of natural drugs, such as peyote, to attain true consciousness. In 1973, he published his fourth book, gave his last public interview and effectively lived in seclusion (in the Westwood area of LA) and still published books until his death in 1998.

The subtle point is that to effectively master cultural competence, full immersion and identity with every diverse culture involved in mediation cases is probably not necessary, or realistic, and could have unintended consequences.

The ‘key’ is to better understand the social science processes when a mediator is engaged with the dynamics of cultural competence – to recognize it and develop proactive strategies in an effort to develop better outcomes for the parties in conflict.