After a stint in the world of oceanographic research and a career as a practicing attorney, I became a law professor at Ohio State and settled on mediation and dispute resolution as my area for scholarship. In an age when most litigation settles, my focus has been on the law that governs mediation and how courts and judges incorporate (or should incorporate) it into the justice system. The goal is to increase access to justice through effective processes that offer individualized resolutions tailored by and for the parties.
Another very satisfying aspect of the job has been teaching students to mediate. As they serve the public by settling cases in small claims court and the local prosecutor’s office, they discover their empathetic, nonjudgmental listening capabilities and gain experience in providing a structure to help others resolve—for themselves—their disputes.
After George Floyd’s murder and with my “retirement,” I began examining mediation from a new perspective. Sharon Press, a colleague at Mitchell-Hamline School of Law in St. Paul, and I collaborated to apply the analytical framework of Layla Saad’s book Me and White Supremacy. Our article, “Mediation: Embedded Assumptions of Whiteness?,” appeared in 21 Cardozo Journal of Conflict Resolution 453 (2021).
Our goal is to raise questions about inclusion and equity and to stimulate discussion in the dispute resolution field. Our focus is on systemic factors rather than individual (often implicit) bias. For example, does the institution of mediation reflect the foundational premise of white supremacy: that the white way of doing things is the normal, acceptable way and should set the standard for appropriate practices?
What do we highlight? A shameful lack of diversity among mediators and arbitrators (not a new discovery). The practice of “tone-policing” in the way many mediators manage communications and expression of anger. Examples of “color-blindness” in the technique of reframing and the typically forward-looking focus of mediation discussions—which may erase the relevance of the life experience of a person of color. More examples of color-blindness in the principle of neutrality that may prevent a mediator from intervening in the face of power disparities. And more. We offer a few suggestions, but there are no easy answers.
We feel we must take responsibility for white supremacy—a structure that benefits whites, which whites perpetuate. Perhaps our effort to uncover its expression in the context of mediation can induce changes to improve the experience of people of color with one aspect of the justice system.