Kristen Blankley, Associate Professor of Law at the University of Nebraska College of Law, has published a thoughtful article titled “Is a Mediator Like a Bus? How Legal Ethics May Inform the Question of Case Discrimination by Mediators,” Gonzaga Law Review, Vol. 52, No. 2, 2017. In her paper, Professor Blankley discusses the potential for mediator bias resulting from otherwise unlawful discrimination against a member of a protected class and how best to ensure mediators are able to perform their duties in a neutral manner.
Here is the abstract:
Impartiality and freedom from bias are the most important ethical considerations for mediators. An impartial mediator can treat the parties equally and ensure that the parties resolve the disputes themselves. To help promote neutrality, ethical rules generally give mediators great flexibility in declining cases or withdrawing from cases because of bias. Mediators should take care to become aware of their biases through thoughtful reflection and introspection. Mediators may have biases relating to a wide range of things, such as socio-economic status, personal appearance, cooperativeness, to name a few. But what about a bias based on a protected characteristic, such as gender, race, religion, sexual orientation, or gender identity? While mediation ethics may tell a mediator to withdraw, anti-discrimination law may require the mediator to serve.
This article grapples with the difficult question of mediator bias when the bias may otherwise be unlawful discrimination. Competing policy obligations make the inquiry even more difficult because legitimate policy interests lie on both sides of the argument. After comparing the policy arguments and drawing on parallels from the world of litigation, this article concludes that mediation and mediation clients are better served by allowing biased mediators to decline to serve, as opposed to forcing mediators to take cases in which they know they cannot act neutrally. Given this conclusion, this article makes legal and practical suggestions to conform with this overarching recommendation to ensure that clients are served and mediators can work in a neutral capacity.
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