Comments on: Bias: a good reason to settle before trial? http://mediationchannel.com/2008/04/25/thoughts_on_bias/ News and ideas about mediation, negotiation, conflict resolution, and law Fri, 16 May 2008 19:51:01 +0000 http://wordpress.org/?v=2.5.1 By: Diane Levin http://mediationchannel.com/2008/04/25/thoughts_on_bias/#comment-1418 Diane Levin Tue, 29 Apr 2008 10:39:14 +0000 http://mediationchannel.com/?p=851#comment-1418 John, I couldn't agree with you more. I do not count myself among those who view litigation as a necessary evil. The jury trial is one of the hallmarks of democracy, and one of the few ways in which ordinary citizens participate in it. The rule of law means access to justice and to the courthouse doorway. I've talked about that in <a href ="http://mediationchannel.com/2008/03/10/debating-the-meaning-of-the-a-in-adr/" rel="nofollow">"Debating the meaning of the 'A' in ADR"</a> and in <a href="http://mediationchannel.com/2007/11/16/lawyers-pakistan-and-democracy-is-it-time-for-a-nobel-prize-in-law/" rel="nofollow">"Is it time for a Nobel Prize in law?"</a> It's one reason why I oppose so strongly efforts to limit access to the legal system, including mandatory arbitration and the misnamed "tort reform". On the other hand, perhaps I didn't go far enough here. Perhaps I should have added that it may be even better to settle on your own than to mediate -- after all, even mediators are not immune to their own implicit biases. Some of us, in fact, like Scalia, may be overconfident about our ability to be impartial. John, I always delight to see your comments. I'm glad you stopped by. John, I couldn’t agree with you more. I do not count myself among those who view litigation as a necessary evil. The jury trial is one of the hallmarks of democracy, and one of the few ways in which ordinary citizens participate in it. The rule of law means access to justice and to the courthouse doorway. I’ve talked about that in “Debating the meaning of the ‘A’ in ADR” and in “Is it time for a Nobel Prize in law?” It’s one reason why I oppose so strongly efforts to limit access to the legal system, including mandatory arbitration and the misnamed “tort reform”.

On the other hand, perhaps I didn’t go far enough here. Perhaps I should have added that it may be even better to settle on your own than to mediate — after all, even mediators are not immune to their own implicit biases. Some of us, in fact, like Scalia, may be overconfident about our ability to be impartial.

John, I always delight to see your comments. I’m glad you stopped by.

]]> By: John Shaffer http://mediationchannel.com/2008/04/25/thoughts_on_bias/#comment-1408 John Shaffer Mon, 28 Apr 2008 17:04:18 +0000 http://mediationchannel.com/?p=851#comment-1408 As rusty as the hinges of doors to justice may be, the courtroom and the pretrial process is still an important way to speak truth to power and correct oppressive power imbalances. I believe in private deal making with all my heart, but one bias of mediation we do not talk about is its contextual bias, that is that resolution between parties beats decision making by a third party. This is not always true, especially when there is an inherent imbalance of power consciously or unconsciously present in the deal making setting. I think we are being asked to walk a paradoxical line: conflict resolution is good, but sometimes, because it does not hit conflict head on, even encourage conflict escalation, it fails to serve a higher purpose. Gandhi and Martin Luther King understood this, and used nonviolent political process to good ends. Nonviolent legal process, as squeaky as it may be, provides another nonviolent to confront injustice and oppression. Let's not throw the baby out with the bath water in our cleansing conflict resolution efforts. As rusty as the hinges of doors to justice may be, the courtroom and the pretrial process is still an important way to speak truth to power and correct oppressive power imbalances. I believe in private deal making with all my heart, but one bias of mediation we do not talk about is its contextual bias, that is that resolution between parties beats decision making by a third party. This is not always true, especially when there is an inherent imbalance of power consciously or unconsciously present in the deal making setting. I think we are being asked to walk a paradoxical line: conflict resolution is good, but sometimes, because it does not hit conflict head on, even encourage conflict escalation, it fails to serve a higher purpose. Gandhi and Martin Luther King understood this, and used nonviolent political process to good ends. Nonviolent legal process, as squeaky as it may be, provides another nonviolent to confront injustice and oppression. Let’s not throw the baby out with the bath water in our cleansing conflict resolution efforts.

]]> By: John Lassey http://mediationchannel.com/2008/04/25/thoughts_on_bias/#comment-1387 John Lassey Sun, 27 Apr 2008 16:29:21 +0000 http://mediationchannel.com/?p=851#comment-1387 Not to mention the jury. Multiply the inherent, unknown and undetected bias of the judge by twelve, and then add to it the time pressure resulting from the fact that most of the twelve would rather be somewhere else! Not to mention the jury. Multiply the inherent, unknown and undetected bias of the judge by twelve, and then add to it the time pressure resulting from the fact that most of the twelve would rather be somewhere else!

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