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Excerpted From: Isabelle R. Gunning, Justice for All in Mediation: What the Pandemic, Racial Justice Movement, and the Recognition of Structural Racism Call Us to Do as Mediators, 68 Washington University Journal of Law & Policy 35 (2022) (85 Footnotes) (Full Document)


IsabelleRGunningThis issue of the Washington University Journal of Law and Policy, titled “New Directions in Dispute Resolution and Clinical Education in Response to the COVID-19 Pandemic,” raises an important question: What has the pandemic crisis taught us about where dispute resolution practice and theory should be going? The “pandemic crisis” is generally understood to mean the spread of the highly infectious, and sometimes deadly, COVID-19. Like all viruses, COVID-19 does not respect persons or borders, so the virus has spread globally and infected countless individuals. A deeper look reveals the virus has had a disparate impact on poor and Black communities--with those communities experiencing higher rates of infection and serious health complications, including death. Such disparate impacts negatively affect the financial and mental health of these communities. The pandemic health crisis revealed the deep structural inequalities in American society, that are both class-based and racially-based. In addition, while the killing of Black and Brown people by the police is not a new phenomenon, the murder of George Floyd--which people around the world watched on video--brought this issue into mainstream American consciousness and discourse, leading to multiracial protests against such killings across the country during the summer of 2020. The protests, and the sometimes violent police responses to those protests, have led to long overdue discussions on police violence, police accountability, the historical roots of American policing, and the various competing visions for what policing and public safety in America could and should look like. These painful truths--not just the apparent institutionalized violence within policing cultures--constitute a “racial reckoning” that is now being proclaimed in public discourse. This racial reckoning is a call to identify and address systemic racism--systemic because it permeates the health care and insurance framework, the economic structure, the policing systems, and all other institutional structures and organizations in the United States.

We in the dispute resolution community should take a special role in this time of renewed interest in, and urgency around, conversations related to race. We know that a purely adversarial approach to resolving deep-seated problems related to race and other social categories of subordinations will only exacerbate the divisive and corrosive elements of public discourse in contemporary American society. In order to fulfill this role, the dispute resolution community must take stock of itself, like so many other American institutions are claiming to do, and examine the ways in which we have or have not responded to racial violence and subordination in the past and accounted for systemic racism in the methods we use.

This work of self-reflection and self-criticism has already started, as can be seen in the January 2021 edition of Dispute Resolution Magazine. The entire issue was devoted to “Reckoning with Race and Racism,” and the editors wrote a thoughtful editorial piece on the mixed history of the dispute resolution field around race and racial violence. The article, and others in the January issue, continue this self-reflection and self-criticism process.

Our field of dispute resolution “is built on negotiation, mediation, dispute systems design and restorative practice.” In this Article, my focus will be on mediation and mediation-related processes, specifically dialogue, which are led by a third-party neutral without any power to impose a solution on the parties. These processes involve various party-driven approaches designed to encourage party self-determination as much as to obtain resolution of the conflict. I am using “mediation” to mean a process with only two or very few parties involved, while “dialogue”--or “community dialogue”-- would be used for groups of community members--especially in the context of facilitated conversations around race and other issues of subordination.

My thesis in this piece is that the pandemic crisis and the racial reckoning call on the dispute resolution community to confront and wrestle with at least three (3) things:

(1) We, in the dispute resolution field, must understand that our field is not so unique that we are untouched by systemic racism. Systemic racism, by definition, means that racism--and other forms of oppression--are not merely a result of individual bias and choice. The institutions in which we all live and function are imbued with racism. We can draw upon the work of Critical Race Theory (CRT) and Critical Race Feminist (CRF) scholars whose works expose the existence of racism and sexism that is embedded in all of our societal institutions in order to gain and anchor our knowledge of systemic racism.

(2) We also need to acknowledge that the presence of that racism and its negative impacts are embedded in the very structures of the mediation processes which we use. This acknowledgement involves revisiting some of the key values upon which mediation has rested. Does a rejection of mediator accountability for the just or substantive outcome of the mediation process enforce systemic racism? Does our attachment to a mediator's neutrality and impartiality ensure that systemic racism will go unchallenged in the mediation process? Does our unquestioned attitude toward a general party self-determination undermine the self-determination of parties who are Black, Indigenous, or from other communities of color (BIPOC) by failing to account for systemic racism within our processes?

(3) We also need to commit to transform our processes and approaches such that systemic racism and negative racial impacts may be reduced. This involves exploring what “justice” in mediation means. I will argue for using a robust and contemporary view of “restorative justice” that demands that we look at justice at both the individual and societal levels. Transforming our processes by incorporating a restorative justice lens involves the need to educate ourselves, as mediation scholars and practitioners, on the pervasive impact of the history of race and racism. It also requires that we alter how we use our processes to educate all parties and participants in the mediation process on the presence of systemic racism in order to undermine its impact on the process and outcome of mediation. In particular, we need to ensure that information about the larger historical and societal context within which any conflict arises is provided to the mediator and parties to the conflict.

[. . .]

This Article is part of the much longer project of self-reflection and self-criticism in which we in the dispute resolution community must engage to not only improve the mediation processes we use every day, but also to be a positive part of supporting the difficult conversations that our nation faces at this important historical juncture. I do not offer a specific plan of action for how--in more individually focused mediations with a racial edge--we include additional information about the history of race and white supremacy in America. I do think that as many of us have proposed a deeper interrogation into how mediators are trained should be a part of our planned changes for the future. Including materials not just on implicit bias but also on white supremacy in the training for all mediators is essential. In addition, we still need to increase the diversity of our mediator membership ranks. How these educated and aware mediators will add their knowledge to any particular mediation with a racial edge is another matter. But I do propose that it is essential that we look at what has happened--and should continue to happen--at the community dialogue level and develop approaches that inject such factual information into our mediations where BIPOC people will be disadvantaged by the default to implicit bias and structural racism that we know exists in us and our processes. To avoid this discussion and the changes that are needed is to give up on the promise of mediation--for all parties, especially those in subordinated racial groups--that we have all embraced and promoted for so long.

Professor of Law, Southwestern Law School.

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