Implicit bias in Alternative Dispute Resolution (ADR) is a phenomenon that exists and must be overcome in the interest of fair and impartial recourse to justice.
Implicit biases are attitudes and stereotypes that people form in people’s conscious or subconscious minds, often manifesting at a very young age, influencing the way we think and act without even knowing it.
Sometimes individuals may not even be aware that they have formed an implicit bias. These biases differ from known biases that individuals learn to conceal to retain the veneer of socially and politically correct behavior.
They are deeply ingrained and are part of our personalities.
No one is immune to these biases. It can be as harmless as a parent influencing an offspring’s decision to support one sports team over another.
But it can also be harmful if family has helped a person form a bias based on race, age, sexual orientation or religious grounds.
Implicit bias, or implicit associations, have become a growing focus within the US legal system and by extension, alternative dispute resolution.
Lawmakers, Judges, lawyers and arbitrators are becoming increasingly aware of the potential impact these biases may have on legal outcomes.
How can implicit bias be revealed?
In 1998, three scholars from the University of Washington developed an implicit association test, now the benchmark standard, to uncover implicit bias.
The test involves showing subjects stimuli such as words and pictures. The subject must instantly choose between races and ethnicity, sexual orientation, sexes, religions and ages to classify what they have been shown.
Scores are given to the responses according to the respondent’s strength of association to characteristics and stereotypes.
Simplistic examples could be “taco” being associated with Mexican for a strong bias, Latin American for a medium bias and American for a low bias.
The same applies to other more unpleasant stereotypes, such as race and choice of clothes or music.
As a member of the field of ADR, Brief is paying close attention to this form of influence on the outcomes of online arbitration.
The question you should be immediately asking is: “Why?”
The law is mandatory. A person may be hauled before the courts if a prosecutor or judge orders them to.
There are no arguments. If a case or charges are filed against you, you must respond to them.
But with arbitration, things are different.
ADR and, more specifically, arbitration require high degrees of trust that the proceedings will be fair.
The very tenet of ADR is that it exists because of consent by both parties. If the system is not perceived as fair, neutral, balanced and one where access to justice can be reached, that trust will be lost.
Both parties to the claim must believe that an online arbitration platform is a fair platform for resolving disputes.
70-75 percent of Americans show implicit black-white racial bias
It might sound astounding, but the co-author of the Annual Review of Psychology 2020,
Professor Anthony G Greenwald from the Department of Psychology, University of Washington, found that implicit bias on the black and white race showed up in 70-75 percent of Americans that took the test.
The results are surprising.
Prof Greenwald said it shows up more strongly in white and Asian Americans than in mixed-race or African Americans.
African Americans, on average, show neither direction of bias on that task.
Racial diversity in ADR
In 2018, black rapper and superstar Jay-Z became involved in an arbitration dispute.
[1] Jay Z (Shawn Coney Carter) challenged the arbitration clause triggered by Iconix Brand Group in the New York County Supreme Court.
Jay-Z said that the triggered clause was discriminatory because the arbitrators listed and available were mostly white. Only two out of the 200 arbitrators that did not have any conflict of interest were black.
He argued this violated his Constitutional right to equal protection of the laws and access to public accommodations.
The Judge issued a temporary restraining order (“TRO”), halting arbitration.
The American Arbitration Association compromised and offered Jay Z additional black arbitrators to choose from.
In the end, Jay Z and Iconix settled and dropped all claims against each other, but the case shone a very bright light on the lack of diversity in the ADR sphere.
The industry responded to this case, and diversity and inclusion clauses are now being introduced. Ultimately, the issue will be resolved by increasing diversity across the board in the ADR sector.
How to combat and counter implicit bias
Many professionals in ADR might instantly dismiss the notion that they show implicit bias. The one sure way to test this is by taking Harvard’s implicit association test. This will help reveal any issues and allow a person to address them.
Awareness is key. Taking the time to stop and think before reaching a conclusion is also a great tool to combat implicit bias.
Another good tip for arbitrators is to create and keep a checklist of issues that affect each arbitration claim.
Judges write legal opinions to justify the rulings that they deliver. If arbitrators do the same, it can act as a check and balance for any implicit biases.
Arbitrators should also expose themselves to diversity in every form.
We should read about different cultures and understand gender identity, different backgrounds and sexual orientations.
Knowledge is key, and the more we read about them, the more we’ll be able to overcome our implicit, subconscious or unconscious biases.
The more we share in the experience of others, learn from them and understand them, the more open, accepting and understanding we become.
As a neutral arbitrator, this will make us more objective and less likely to draw conclusions or make decisions based on stereotypes.
ADR is all about being neutral and objective. By eliminating implicit bias, we will make dispute resolution services more neutral, increasing the trust of people that use them.
Are you interested in becoming a Brief E-Judge?
We’re passionate about providing online access to justice for monetary and contract disputes. We’re always looking for arbitrators and dispute resolution professionals in various fields. If you’re interested in taking on ad hoc work that flexes around your schedule, please fill out the form in this link.
All of our arbitrators and dispute resolution professionals must meet our company standards and the requirements and qualifications set forth by individual jurisdictions.
[1] Shawn C. Carter et al. v. Iconix Brand Group, Inc. et al., Index No. 655894/2018, Supreme Court of the State of New York County of New York.
