Recently, I watched a  webinar presented by the Beverly Hills Bar Association entitled “Unraveling Bias: Understanding Human Decision Making” by  Denise Peterson, FCIArb, Attorney, Mediator, and Arbitrator and Adjunct Clinical Professor at South Texas College of Law. After defining “implicit bias” as “…attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”(emphasis original)  (Power point slide 5 (“Ppt.”)) Prof. Peterson discussed the implicit bias of “Otherness.”  It is the “us” vs “them” or “ingroup” vs “outgroup” or tribalism mentality.

In Slide 11, Prof. Peterson quotes Schwalbe 2000 in defining “othering” as “…the process by which a dominant group defines into  existence an inferior group.”. Another definition on this  same slide is “Othering is the construction and identification of the self or in-group and the other or out-group in mutual, unequal opposition by attributing relative inferiority and/or radical alienness to the other/out-group.” (Ppt. at 11)

Prof. Peterson then noted something that struck me.  That “othering” is what litigation is all about but it is also antithetical to mediation.  As Prof Peterson notes, “othering is a linguistic technique to exclude persons or groups from your own in-group or associated groups.” (Ppt. at 10.)  It is definitely an “us” vs “them” and is often used “…by those with a specific agenda” (Id.)- to win the lawsuit by “… diminishing, excluding and dehumanizing “ the “other” (Id.)

Think about litigation:  A plaintiff sues the defendant. Automatically, the defendant becomes “the other” or “them” and bad motives and evil things are attributed to the defendant. The Defendant is diminished and dehumanized and made out to be horrible in every way, shape and form imaginable. In this way, the plaintiff” or “us” or the “in-group”  can set its own agenda by defining itself as the “good guy” wearing the white hat who should win at trial.

Such tribalism may work in litigating a case but is extremely detrimental when trying to settle it. As any mediator will note, perspective taking is key to trying to resolve matters. Often, mediators will ask a party to look at the matter from the viewpoint of the other party. That is, to meld “us” and” them”  into a “we”.  To paraphrase Kenneth Cloke, there is no “us” vs “them” as “them” are all “us”. Settling a matter involves compromise and to compromise, one must recognize that perhaps the other party is not inferior or lacks humanity. In fact, the other party may even deserve some compassion and their  claims may even have  some merit.

So, while “otherness” seems to be an implicit bias that our society has fallen into these days, it is a bias of which we must become aware and not allow us to thwart resolving a dispute. Stop and think about what you are about to do: examine and question your own thoughts and motives and excuses. (Id. at Ppt. Slide 28) Be sensitive to what you are about to do and thwart that urge to  invoke tribalism by dehumanizing the other party. Rather, try some compassion and perspective taking.

… Just something to think about.


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