The log in your eye: eliminating gender bias in mediator performance evaluations

evaluating mediators without biasThe hot-button issue of mediator credentialing and credentialing seems to be on the minds of many folks in the ADR field these days. It has generated discussion, here and on other blogs (including Tammy Lenski’s, Vickie Pynchon’s, F. Peter Phillips’s, and Philip Loree’s).

Although I have not ruled out my support entirely for public credentialing for mediators in private practice, I have concerns aplenty not only about the wisdom and necessity of such schemes, but also about the challenges in establishing workable and meaningful ones – concerns which I would need to see fully addressed before I’d give my thumbs up.

Public credentialing of mediators will necessarily involve some kind of evaluation process – which raises a whole host of vexing questions. Among the many that I anticipate is one that particularly troubles me: given the realities of implicit bias, and the difficulties still facing women and minorities in gaining visibility in the upper reaches of our field, what would be done to ensure that any evaluation of mediators is free from it?

While sorting through the email that piled up while I was away on vacation during the first 10 days in August, I came across a message from the ABA Commission on Women in the Profession announcing that the latest issue of the electronic version of Perspectives, their quarterly magazine, was now available. It got me thinking. In that issue is an article by employment attorney Consuela Pinto, “Eliminating Barriers to Women’s Advancement: Focus on the Performance Evaluation Process“.

Emphasizing the importance of awareness-raising, Pinto sets out her recommendations for creating a bias-free evaluation process – recommendations that may transfer readily to a very different profession, mediation. I particularly like Pinto’s tips for evaluators:

  • Get educated about gender bias and examine your own biases.
  • Base your comments on actual performance and not potential.
  • Comment only on performance during the period under review.
  • Base your assessment on factual examples of behavior.
  • Weigh individual competencies similarly for all evaluatees regardless of gender.
  • Avoid using derogatory, disrespectful, or overtly biased comments.
  • Avoid basing comments or scores on the evaluatee’s adherence or failure to adhere to traditional gender stereotypes.
  • Review completed evaluations for consistency and objectivity.

Photo credit: Dominik Gwarek.

11 responses to “The log in your eye: eliminating gender bias in mediator performance evaluations

  1. Diane,

    This is an interesting twist on the whole mediator credentialing debate, and I’m sure you could come up with several others.

    A personal evaluation program would raise a lot of questions in my mind about bias, cronyism, competence and a lack of objective, evenly applied standards. Gender bias could well figure into the mix. Another thing I would worry about would be bias against non-lawyer mediators.

    If I were a regulator I would authorize private organizations to certify mediators based on completing an approved course of X hours of study and perhaps sitting in on Y number of mediations. Completion of such a course of study would qualify one for state certification. I’m no fan of regulation, but that type of a certification process (if there is to be one) might help mitigate the risks associated with entrusting certification to a supposedly neutral evaluator (or panel of evaluators).

    Nice article and thanks for linking to my blog!


  2. Phil, thanks! I’m still on the fence with the whole issue, but the more I weigh the question of public credentialing, the less I support it.

    I don’t trust evaluation for the big reason I outlined in this post; you’ve raised other good concerns – namely, the very real bias against mediators who aren’t attorneys. Despite the ABA’s opinion issued several years ago making it plain that mediation does not constitute the practice of law, I have met mediating lawyers who think otherwise. They remain determined to protect their turf and bar the door to mediators who don’t have a bar card. I even heard respected leaders in our field say so while I was at the ABA Section on DR spring conference in NYC.

    Too bad. Some of the most talented mediators I know and work with aren’t lawyers. And at the beginning of my mediation career I often felt that my legal training was a handicap, not a plus in my favor.

  3. Diane,

    There really seems to be a divide increasing between the “Haves” and “Have Nots”. The “Haves” being the mediators with a law degree.
    I recently wrote how a Court ADR program here in NY is now paying mediators ($600 for the first 4 hours, $250 each additional). That’s the good new.
    The bad news is the rule states in order to be on the mediator roster, one has to also be an attorney (also described as being reasonable).
    Certification could possibly be what helps level the playing field.

  4. I have blogged ( about Safe Horizon’s accreditation process, which results in a video evaluation. While the prospect of humans judging humans is likely to involve bias and error at times, as you point out, I would point out that processes often are created to reduce these ill effects in similar contexts. For example, we don’t eliminate trial courts, we offer appellate review. I believe that the production of a video of a mock mediation, judged against an agreed list of “toolkit” mediation skills that the mediator is expected to exhibit and the evaluator is required to apply, is a good method to review competence and guard against bias. If the mediator believes there was bias and a mistake was made, you can always “go to the videotape”.

    The whole point about accrediting mediators is that it will covert what is now a practice into a profession. Transition, like all transitions, can be messy, and I could see implementing accreditation by godfathering all current mediators with a certain experience level. That is the way of the world when change of this type is sought. When I read through most complaints about accreditation and I use “active listening”, I sense that objections to accreditation are more about “Is it good for me?” rather than “Is it good for the profession?” So, don’t fret mediators, it likely won’t be about you.

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  6. Jeff, wow. What bullshit! (Sorry, I couldn’t contain my disgust.) You know how I feel about this – I’ve written about this issue several times here on this blog. The notion that someone is uniquely qualified to mediate a particular dispute simply because of their profession of origin is utter nonsense. (Subject matter knowledge is another issue; there are disputes that I think demand subject matter knowledge, where it’s important to be able to speak the disputants’ language – it’s why I don’t mediate construction disputes.)

    Chris, thanks so much for your comment. I have long thought that videotapes are useful for helping people learn. However, I’m not so confident about the objective value of videotaped mediations in evaluation. The problem is that we can all look at so-called objective evidence and what each of us sees is largely determined by who is doing the looking. Perception itself is culturally and socially constructed. The Scott v. Harris case is I think an instructive example of this. Unless cultural and social biases can be counteracted, and we are willing to have the honesty to confront them together, the videotapes will have limited usefulness.

    In candor, I am troubled by your dismissal of criticisms of credentialing schemes as “more about ‘Is it good for me?’ rather than ‘Is it good for the profession?'” In my experience, I haven’t heard that. In the discussions online and in person that I have taken part in, I have heard good people, motivated by sincere and very real concerns, give voice to legitimate objections. These objections will not and should not go away; if our field moves forward toward public licensing or credentialing schemes or toward national private accreditation by organizations like ACR, these are objections that will have to be answered and resolved. I have a lot of respect for the naysayers. (For what it’s worth, I don’t in any event see anything wrong with anyone expressing a little honest self-interest; it’s perfectly normal to wonder, “What’s in it for me?” Why’s that so bad? Why shouldn’t any of us ask how something might impact us directly?)

  7. Well, the Scott v. Harris case proves my point: a majority agreed with the decision based upon a viewing of the videotape. I think the value of a videotape evaluation is two-fold. While it ensures that there will be an opportunity for an “appellate” review to make sure the evaluation was reasonable, video evaluation also should force the initial reviewer to try to be dispassionate and objective, knowing that there will be opportunity for review.

    As for the me v. we point, I simply believe that any argument for or against accreditation should be based upon what is prudent and beneficial for the profession as a whole. That’s one of the things being a professional is all about. Doing what’s good for the game, not just what’s good for me as a player.

  8. Separate point about Jeff’s comment that also goes to mediator accreditation. Perhaps one reason why the court limited its mediation roster to lawyers is that the court may want to know that it always can sanction improper conduct by a lawyer/mediator, should it occur, by
    among other things referring the mediator to a state bar or lawyer association. There is no similar authority for the court to use in the case of improper mediator…unless, of course, mediators considered themselves a profession and disciplined their own!

  9. Chris, I don’t know why New York limited its mediation roster to attorneys. Any of us can speculate. I doubt that New York courts treat attorneys who mediate differently from other mediators simply because attorneys are professionals subject to disciplinary proceedings.

    Here in Massachusetts the Trial Court Department oversees the mediation firms and neutrals providing services in court-connected, court-approved programs. The Trial Court can revoke that approval and remove mediators from the court panels. Whether the mediators are attorneys or not makes no difference.

    As far as Scott v. Harris is concerned, did you read the scholarly article and study I pointed you to? I’m scratching my head and trying to figure out why you think Scott v. Harris supports you. A jury never got to see the tape; a group of mostly white guys decided that they didn’t need to. Objective evidence really isn’t, even a videotape.

    FYI, Jeff, Florida courts used to permit only attorneys to serve on its civil mediation panels but in response to widespread criticism they’ve changed that rule. Florida gets it; why doesn’t New York?

  10. I suppose a good mediator would take your disgust and frustration at the court, Diane, and “open it up”. Such a mediator might ask why good mediators don’t get the respect they deserve, but suddenly that deference is forthcoming when the customer (in this case, the court) learns that the mediator is also a lawyer. Reality may follow perception, here, where in the eyes of the customer the “professional” lawyer provides respectability to the “unprofessional” mediator, but which is more easily changed, the way of the world or the accreditation of mediators?

  11. Well, reasonable people can disagree. As for court rosters, I think it may depend on the nature of the docket. I do commercial mediation and community mediation. I find that being an attorney is an advantage for commercial mediation and a disadvantage for community mediation. If I were king of the forest, I might want lawyer/mediators on a commercial court roster, and nonlawyer/mediators on a family court roster. But I would agree doing this would probably be both under- and over-inclusive, and it might makes sense just for people to self-select.