Become a Patreon!


Excerpted From: Sharon Press and Ellen E. Deason, Mediation: Embedded Assumptions of Whiteness?, 22 Cardozo Journal of Conflict Resolution 45 (Spring, 2021) (233 Footnotes) (Full Document)



This Article began with the murder of George Floyd by an officer of the Minneapolis Police Department on May 25, 2020, after a convenience store employee reported that Floyd used a counterfeit $20 bill to purchase cigarettes. Seventeen minutes after the police arrived, Floyd was unconscious, pinned beneath them. The events were recorded by bystanders and the public was confronted with visual evidence of what has been happening to Black, Indigenous, and People of Color (BIPOC) especially Black men--for centuries. It was dramatic testimony that law enforcement is based on a system that is the product of systemic racism and embedded notions of white supremacy.

We were horrified by what we saw, as were so many others. It is fair to ask why the reaction from whites like us--that we needed to do something--took so long when George Floyd was not the first person of color, nor the last, to be shockingly mistreated. We do not fully know the answer, or perhaps we are not able to confront it. But the result was that each of us felt driven to try to understand our part in this culture and to begin to confront white supremacy in our personal and professional spheres. We both leapt at the opportunity to join a small group of dispute resolution colleagues to read and discuss our responses to Layla F. Saad's book, Me and White Supremacy. Beginning in July, ten of us met on a weekly basis to begin working to understand white supremacy and all of the ways that it is embedded in our society.

This piece grows out of that examination. Specifically, as mediators and teachers of mediation, we felt compelled to take a closer look at how mediation is taught and practiced in the United States and try to uncover the ways in which white supremacy has crept in or been “baked” into the practice. We are intentionally writing this as a set of reflections because we are not the first people to raise many of these issues about mediation and, importantly, neither of us is a critical race scholar. We don't propose answers, but rather accept the common adage that the first step is recognizing the issue. We also are persuaded by Robin DiAngelo's point that awareness of the problem is especially important in the context of race: “[r]ushing ahead to solutions-- especially when we have barely begun to think critically about the problem-- bypasses the necessary personal work and reflection and distances us from understanding our own complicity.” So we will use this forum to raise questions that we hope will lead to more conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution.

We would also like to acknowledge the Cardozo Journal of Conflict Resolution editors for being open to including this piece as part of the Symposium Issue on Presumptive Mediation in the Courts. Sharon participated in the Symposium as a presenter on the Florida State Court ADR Program for which she served as director during its formative years, until 2009. We believe it is important to underscore the connection between our topic and the Symposium. When an institution endorses the use of a process such as mediation, it has an obligation to ensure that the process is free from embedded racism. This is especially true when that institution is a court, and the court is incorporating mediation as a part of the justice system. Our examination leads us to believe that there is work to be done to deliver on the promise of racial justice. Given that the Symposium focused on court-connected mediation, we will use institutionalized mediation as our frame of reference, but it is important to note that we believe that the critique reaches beyond the context of court-connected or presumptive mediation to mediation in all its contexts.

In this Article we will apply the themes articulated by Saad to the following aspects of mediation: communication norms and the role of anger; the role of narration and narratives; the role of the past in mediation; mediator bias; the neutrality of the mediator; embedded assumptions about conflict; who currently serves as mediators; and the role of self-determination. We will look at these attributes of mediation through the lenses of tone policing, color-blindness, stereotyping, anti-blackness, silence, and white supremacy.

[. . .]

We began this piece by stating our intention to use this forum to raise questions in the hope that this would stimulate more discussion and deeper attention by dispute resolution scholars and practitioners to these issues. We would like to close with some suggestions for what is needed.

First, we stand by the notion that more discussion about the embedded assumptions of whiteness in mediation is extremely important. This discussion and reflection would benefit greatly from more quantitative and qualitative research on the actual experience that BIPOC have in mediation. Much of what we wrote was our own speculation with extrapolation from other contexts. In order to fully understand the contours of the issue, the field needs much more research.

Recognizing the limitations that we are under without additional research, we still believe that there are some common-sense interventions that we could endorse as a structural matter. Specifically, we agree with the authors cited above that the regular use of co-mediation to bring diversity of thought and experience into the room makes sense. When co-mediators have different backgrounds, it will help prevent a mediator from assuming that there is one “right” approach in the mediation. Co-mediation also makes it easier to avoid the deleterious effects of isolating one party by race or ethnicity. And it allows rigorous debriefing and evaluation in collaboration with the co-mediator.

We also endorse a careful examination of training standards and the way that mediation is taught. While mediation is inherently an activity performed by individuals, the way to affect what a mediator does in a mediation goes back to how the mediator was trained. Programs and trainers should follow research on implicit bias and potential ways to reduce or counter it and mediation training standards should require this topic be taught. In addition, one needs to look not only at the standards, but also at how those training standards are implemented. This extends to the question of who is conducting the training and what lens they bring to the material, as well as the material used. Mediation training material should be reviewed to eliminate hidden messages of white superiority and new thinking is needed about how to prepare appropriate materials. Changes need to go beyond updating the names used in scenarios and descriptions to be representative of a range of ethnicities and racial backgrounds, which can be seen as merely a band-aid. More importantly, simulation scenarios should include a range of issues, including ones involving racial and ethnic conflicts, which need to be debriefed with sensitivity to the issues we have raised.

The Cardozo Symposium was on the use of “presumptive” mediation by the courts. While much of what we have raised so far applies in the private sector as well as court-connected environments, we believe that the court-connected setting offers some opportunities and creates some special challenges. In the court-connected setting, training standards can be adopted and enforced. On the other hand, many of the issues we raised are heightened in the context of court-connected mediation if the court program dictates (as many do) that mediations be completed in limited time frames.

The issues are also exacerbated when a court program emphasizes a settlement focus. Court-connected programs need to examine all of their policies and procedures to ensure that the mediations conducted under the auspices of the court can be completed in a manner that does not reward or compel mediators to become more directive in order to secure a settlement. We believe that the more directive a mediator is, the more likely that mediator is to insert his/her own narratives and style of communication. And when that mediator is white, and one or more of the parties is not, the issues described in this Article are more likely to occur. Therefore, we endorse less directive mediation styles and commend consideration of potential contributions of transformative mediation and inclusive mediation to anti-racism work.

We also need to recognize that our justice system was created by whites and has the white way of doing things baked in. For example, who gets to participate in mediation? Is it automatically just named parties or is there a more comprehensive understanding of who will be impacted by the decision, such as an extended family (individualistic or collectivist approach)? Should there be a written agreement that is signed? Not all cultures find that to be the most appropriate way to end a conflict. Keep in mind Grillo's admonition: “subordinated people can go to court and lose; in fact, they usually do. But if mediation is to be introduced into the court system, it needs to be a better alternative.”

Finally, this Article has considered what happens “at the table” in terms of systemic aspects of mediation practices that can generate racist effects. There is a need for a concurrent examination of what has happened “in the field” of mediation in this regard. It is time for reflection on the way that attitudes of theoreticians and practitioners alike have shaped these practices, with the goal to form a foundation for finding paths that the field can take toward constructive change.

Professor of Law and Director, Dispute Resolution Institute, Mitchell Hamline School of Law.

Joanne Wharton Murphy / Classes of 1965 & 1973 Professor in Law Emerita, The Ohio State University Moritz College of Law.

Become a Patreon!