Stories of Experience: Economic Inequality in Mediation
By
By
Robert Rubinson[1]⃰
Mediation Type: Child access
Place: Powell County Courthouse
Date: July 5, 2017
Mediator: John Harris
Participants: Amber Collins and David Williams
Children: Jade (age 9) and Diana (age 3)
Referral: By the Court
Dialogue at Mediation Session
Mediator: It looks like we’re making progress. You’ve now agreed about a schedule when the kids will be with Amber and when they’ll be with David. We’ve been focusing on the school year, though. What about vacations?
Amber: I’m not sure we need to talk much about that. We can just see.
Mediator: David?
David: Yes, I think that’s right. We’ve got the important stuff down. We can work it out over the summer on our own.
Mediator: You can certainly do that—it’s up to both of you—but I can say in my experience issues can crop up over the summer. Let’s say, for example, that one of you is going away for a while to the beach. The other one of you won’t see the kids then.
Amber: I guess.
Mediator: Like I said, it’s completely up to you, just as I mentioned when we started the mediation. I’m still concerned, however, that the agreement you’ve both worked so hard on can become a problem during a vacation. That trip to the beach won’t be much fun if you disagree about where you’re going, how long, who’s going, stuff like that.
David: I guess we can talk about it.
Mediator [to Amber]: Is that OK?
Amber: Sure.
Mediator: OK. So when do you typically go on vacation?
Finances of Participants
Amber’s Income:
Part-time convenience store clerk: $9.25/hour[2] for 20 hours/week, or $750/month; and
Part-time home health aide: $8.45/hour for 25 hours/week, or $845/month
Amber’s Expenses:
Rent: $900/month
Food: $100/month (with food stamps[3])
Child care: $300
Utilities: $100
Transportation (bus) (four trips to jobs): $100
Other expenses (medical, clothing, personal items): $100
Money remaining: -$5
Number of vacations in last three years: 0
David’s Income:
Home Improvement (intermittent): variable
Landscaping (seasonal): variable
Mover (intermittent): variable
David’s expenses:
Rent: $400/month (with roommate)
Food: $50/month (with food stamps)
Utilities: $100
Transportation: variable
Other expenses (medical, clothing, personal items): $100
Money remaining: Impossible to say
Number of vacations in the last three years: 0
Amber and David are poor. They have little income to cover basic necessities, let alone vacations. The mediator does not understand this, and it is not surprising that he does not. After all, it is likely that he and everyone he knows take vacations. The mediator is not callous or indifferent; his experience simply does not enable him to understand how Amber and David live on the edge of subsistence and the daily struggles that go along with that kind of life.[4] And for Amber and David, their struggles are far greater than being deprived of vacations. They juggle multiple jobs with uncertain hours, have little job security, and have no “personal days.” They rely on an unreliable transit system to get to and from work and to get their daughters to and from school and day care. Utility bills come due, food needs to be purchased, medical appointments need to be made and kept, and a myriad other daily commitments must be managed. It is far more difficult to do these tasks when you are poor.
This disconnect is pervasive yet little studied in the literature on mediation, even though a great deal of work has explored a range of differences among distinct types of mediation in other respects.[5] These studies include the cultural background of the participants,[6] whether the mediation is part of a program integrated within a large organization,[7] whether mediation participants will maintain relationships post-dispute,[8] the amount of money at issue,[9] the race and gender of participants,[10] the religious affiliation of the participants,[11] and whether the mediation is private or court-annexed.[12] None of these, however, addresses when one or more mediation participants is poor and the mediator is not.[13]
This dynamic is a crucial issue. After all, the very purpose of mediation is to empower participants[14] and thereby facilitate participant-centered problem-solving.[15] This is hard to do when the lives of participants are alien to a mediator’s own experiences. This is true even when mediators wholeheartedly subscribe to the value of empowerment and are fully versed in the techniques of “good” mediation.[16]
Moreover, mediators typically encounter poor people in court-annexed programs that are overcrowded and under-resourced.[17] Such programs tend to be located within courts of “mass justice,” where there are many poor people, little legal process as traditionally understood,[18] and, inevitably, limited time to mediate. Such time restrictions and pressures to settle one’s case within such courts intensify the risk that poor people—and the lives they lead—will not be heard in mediation.[19]
This Article examines these issues in five parts. First, it describes the basic psychological principles that lead us to believe that other people’s lives are like our own. The second part focuses on the day-to-day lives of those in poverty. The third part focuses on literature that addresses the norms of experience and judging—an area that has received some attention and is a springboard for thinking about analogous issues in mediation. The fourth part applies this learning to mediation. The final part develops specific proposals which, in combination or individually, can improve the effectiveness of mediators when mediating matters with low-income participants.
Humans extrapolate their own experience as the norm—what can be called “the norms of experience.”[20] This straightforward concept helps explain why those who have not and do not live in poverty make assumptions about those who do.
A large volume of literature in social psychology—grouped under the term “cognitive conservatism”[21]—draws upon an insight that is both basic and intuitive: humans have limited cognitive resources.[22] As a result, it would take simply too much brain power to process every experience anew.[23] Therefore, the brain relies, as it must, on a range of cognitive shortcuts called “heuristics.”[24] These shortcuts are largely invisible and unconscious.[25] Two examples are interpreting facts to confirm pre-existing conclusions[26] and mistakenly assuming that certain events happen more often than they actually do.”[27] Other examples abound, some with profound consequences for mediation.
Some aspects of cognitive conservatism are deeply troubling. Stereotyping and implicit bias are two examples. Both have been particularly important in the context of anti-discrimination law,[28] and policing.[29] These issues have enormously important consequences, including—in the case of law enforcement—life and death. As a result, ways to overcome implicit bias in these contexts have become the subject of a substantial and important literature.[30]
There is, however, scant literature that explores the cognitive challenges mediators face when participants are from lower socioeconomic backgrounds than their own. Indeed, there is little discussion of the cognitive models employed by experienced mediators more generally.[31] One exception is a study conducted at the National Institutes of Health which involved mediations that were, on average, almost 30 hours long—hardly typical of those in which low-income people participate.[32] Another study examined the impact of mediator race and gender on how satisfied mediation participants were with the mediation process. The study, however, focused on employment discrimination in the United States Postal Service without taking socioeconomic differences into account.[33]
There is also a small but important body of literature on the role of cognitive bias in mediation.[34] Some of this literature argues that “neutrality” in mediation is illusory[35] or explores the impact of implicit bias among and between employees in the workplace.[36] Again, none of this literature focuses on socioeconomics.
While drawing upon the same principles underlying “implicit bias,” the term “norms of experience” reflects a simple fact about how people think, even people of good faith who want to “do good” through a process characterized by empowerment and respect. It is not bias per se. Rather, it reflects how we make assumptions about what, on its surface, are the more quotidian aspects of our lives: how to get to places, how much money we have for basic necessities, our ability to enjoy leisure time, and the norms of the workplace. The following section traces the reality behind such assumptions for those who live in poverty.[37]
The daily challenges of living in poverty are often invisible. Sometimes negative stereotypes fill the void,[38] but often there are assumptions that are neither negative nor positive, but simply wrong—the result of a lack of experience.[39] This section describes some of the ways poverty shapes lives on a granular level.
Assumptions about poverty often reflect what is visible and identifiable. Homelessness is an example; crumbling or abandoned buildings are another. Other markers are crime, alcoholism, and drug use.[40] All of these defining characteristics, of course, are all too real and profoundly disturbing aspects of poverty.
However, many poor people do not fit these and other stereotypes: they are not homeless, jobless, substance abusers, or incarcerated. Many low-income individuals have jobs, albeit, as shown below, low-wage jobs with the uncertainties and challenges that go along with them.[41] Others are pursuing an education, whether it be a GED, community college degree, or four year college degree.[42] Moreover, while poverty is undeniably and heavily racialized,[43] poverty afflicts all racial and ethnic groups.[44] This is not to say that many poor people are not homeless, jobless, suffering from addiction, or without a high school education. Many are. However, there are also many poor people who neither have the visible markers of poverty nor represent common stereotypes about who is poor. The non-poor do not see these lives as different from their own.[45] The problem is that there are aspects of daily living that are not available to those in poverty. Consider a few examples.[46]
Child care is a struggle for many low-income families, especially for low-wage workers.[47] It is expensive, and while some states do provide for subsidized child care, there are not remotely enough funds to accommodate the many families who need it.[48] Moreover, the challenges of finding child care are exacerbated given the ever-shifting hours which are typical of low-wage work.[49]
The availability of nutritious food is limited in many low-income neighborhoods. So-called “food deserts”[50] have numerous “corner” groceries, fast food,[51] and liquor stores,[52] but little in the way of fresh produce or other healthy options.[53] This lack of nutritious food options leads to a range of poor health outcomes, including obesity, which can generate more doctor visits and sick days.[54]
Low-wage work in the United States is hard to imagine unless one relies on one (or more) of such jobs for income. Many low-income workers must contend with constantly changing shifts during which they must work or get fired.[55] It is rare to have flexible work hours; such flexibility is far more likely to be available in higher-paid work.[56]
Most low-wage workers are also paid hourly.[57] Unlike salaried workers, low-wage jobs often do not have paid personal days or the flexibility to work off-site without losing pay. Moreover, taking time off from work has an obvious consequence: hours not worked are hours not paid.
More generally, low-wage jobs can easily disappear through no fault of the worker. Missing even a single day of work risks the loss of a job, even if it is due to an illness of the worker or his child, or going to medical appointments, school conferences, or funerals—circumstances that can and often do arise for everyone.[58] This sad reality has potentially catastrophic consequences for low wage-earners’ ability to provide for themselves or their families. These issues multiply, literally, when low-wage workers must work two or more part-time or even full-time jobs to make ends meet.[59]
On top of all of these barriers, some low-wage workers are “subcontractors” and “day laborers.” These workers are often hired through wage “brokers” or “temp agencies,” many of which do not adhere to basic worker regulations such as minimum and overtime wages, required breaks, and occupational safety requirements.[60]
An enduring stereotype is that of a “welfare queen” who games the system in order to receive public benefits to fund a lavish lifestyle.[61] Welfare fraud no doubt exists, although fraud, such as tax fraud or fraudulently drawing from other government benefit programs, is rampant among the non-poor or even the rich.[62] In any event, welfare fraud would hardly be lucrative enough to support lavishness. Consider the amount of benefits under two primary cash assistance programs:
Most low-income people must rely on mass transportation, often buses, to travel to work or elsewhere[68] because few poor people can afford to buy and maintain a car.[69] Bus passengers cannot get in a car at a time of their choosing; they have no choice but to leave when a bus arrives, however infrequent or unpredictable that time may be. Moreover, bus schedules can be illusory when there are breakdowns, traffic congestion, and bad weather. Public transportation is also not free, and thus yet another expense low-income wage earners can ill afford. All of these factors are additional challenges in finding and keeping a job.[70]
Literacy is not an automatically learned skill in the United States. Some adults who cannot read are easily identifiable, such as those who have limited English skills or discernable cognitive deficits. There are, however, a substantial number of people with limited or no literacy skills who do not fall into either of these categories. These individuals are simply poor people who have had minimal or low-quality education.[71]
A corollary of the prior discussion is that many conveniences are often taken for granted by the non-poor. Examples are plentiful. They usually own a car and thus have some measure of freedom about when to travel. If they have children, they send them to “good” schools, whether public or private, and, usually, to college; they themselves usually have a college education, and perhaps a graduate degree; they take vacations away from where they live, whether by car or air; they may have freedom to choose their doctors; they tend to be salaried or owners of businesses, with a greater flexibility of work hours.
These conveniences offer freedom and flexibility, yet even modest disruptions to them lead to controversy. Speed cameras, for example, have been the subject of a constitutional challenge,[72] and the United States Department of Transportation has adopted a “tarmac delay rule.”[73] Speed cameras and tarmac delays only affect car owners and air travelers. In contrast, there is no effort, at least through public discourse, to remedy the far worse challenges faced by bus riders.[74]
Given that many mediators have not experienced poverty, questions arise as to what impact this has on the quality of mediation. One way to start answering these questions is to examine two core goals of mediators: (1) to avoid imposing a mediator’s own values and opinions; and (2) to be sensitive to “power differentials” in mediation. These ideas are useful in conceptualizing the role of a mediator, and while they do not directly address the socioeconomic differences between mediator and participants, they are helpful in exploring those issues.
Like judges, a mediator is not supposed to favor one participant over another.[75] This concept can be referred to in different ways—“neutrality,” “lack of bias or favoritism,” or “impartiality”—and reflects a core quality that characterizes an effective mediator.[76]
Some mediators recognize that identifying and eliminating “bias” is no easy task and offer strategies to attempt to do so.[77] One strategy is for a mediator to tell participants that she is not aware of conflicts of interest that would impair her neutrality, and then ask the participants if they agree. Even if the mediator asks this question or engages in more general self-reflection, a far more challenging issue remains: how can even well-intentioned mediators identify subconscious forms of bias?[78] Some argue that they cannot, given the nature of human cognition, including the blind spots imposed by the norms of experience.[79]
One particular challenge that mediators face in maintaining neutrality relates to “power differentials” and the role, if any, that a mediator has in equalizing them. This problem arises when one participant can exert power over the other participant, thus rendering the mediation process unfair. Some cite examples such as when women are mediating with men,[80] when low-income participants are mediating with well-resourced individuals or entities such as landlords or banks,[81] or when a pro se participant is mediating with a represented participant.[82] A particularly stark power differential exists when a victim of domestic violence is mediating with her abuser, although whether such a case is ever appropriate for mediation is a contested issue.[83]
There is also a broader critique that, to a certain extent, draws upon issues related to poverty. This critique claims that the growth of mediation has exerted social control over the impoverished by, among other things, inhibiting concerted action for social change.[84] Mediation thus further disempowers the already disempowered,[85] such as people of color.[86] This critique, however, addresses the impact of socioeconomics on a macro, systemic level, not on an individual level.[87]
The difficulties of how a mediator can maintain neutrality and eliminate the impact of power differentials strikes at the core of mediation. The consequences of socioeconomic differences between participants and the mediator do as well, albeit in less obvious ways.
The first way has to do with the challenges of being empathic—a crucial characteristic for mediators. A leading mediation text defines empathy as “the ability to understand the experience of another.”[88] This process “let[s] people know that they have been heard.”[89] However, a good faith intent to be empathic—an effort that is clear in the story of Amber and David—does not mean that the “experiences of another” have been heard. Empathy, at least in a nuanced way, can be difficult in the face of socioeconomic differences.
The second way relates to another core norm of mediation: ensuring that problem-solving rests with the participants, not the mediator.[90] This can never be absolute: a mediator must have some impact on how the parties approach a dispute,[91] and this impact can play out in particularly significant ways when there are socioeconomic differences. The story of Amber and David illustrates this point. As to summer vacations, the mediator says “it’s up to both of you.” This is a good faith attempt to place the power to decide in the hands of the participants. But even asking this question puts the participants in an uncomfortable spot given that they never take vacations. The mediator also states that “I can say in my experience issues can crop up over the summer.” The mediator, again in good faith, is sharing his experience as a means to resolve a topic he sees as important and inevitable. The problem is that his experience is not one that Amber or David have or realistically will share any time soon. The mediator does not know that, and therein lies the problem.
While there is little attention paid in the existing mediation literature to socioeconomic differences between a mediator and participants, there has been some attention paid to these differences when it comes to judges and judging.[92] One such area is the impact that elite education and the lack of professional experience have on the jurisprudence of Supreme Court Justices.[93] Such literature can furnish an important template for how to approach similar issues in mediation.
The life of Thurgood Marshall represents an instructive example of how experiences with poverty influence judicial decision-making. Justice Marshall was the son of a Baltimore railroad porter who could not read or write.[94] His life experience was defined by the scourges of racism and poverty, both of which were related given that socioeconomic exploitation was an integral part of Jim Crow.[95] Justice Marshall’s understanding of poverty, however, also stood independent of race. For example, in United States v. Kras, the Court was faced with an appellee who, as a result of a series of unfortunate circumstances, could not afford a fee of $50 to file a petition to declare bankruptcy.[96] Justice Blackmun found that installment payments of $1.92 were “less than the price of a movie and little more than the cost of a pack or two of cigarettes.”[97] Justice Marshall’s response is worth quoting at length:
I cannot agree with the majority that it is so easy for the desperately poor to save $1.92 each week over the course of six months. The 1970 Census found that over 800,000 families in the Nation had annual incomes of less than $1,000 or $19.23 a week. I see no reason to require that families in such straits sacrifice over 5% of their annual income as a prerequisite to getting a discharge in bankruptcy.
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have—like attempting to provide some comforts for a gravely ill child, as Kras must do.
It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.[98]
In another case, Justice Marshall similarly noted how poverty represents “another world ‘out there,’” and one that his colleagues simply do not understand.[99]
Justice Marshall’s perspectives apparently had an impact on other Justices. Justice Sandra Day O’Connor, for one, noted that Justice Marshall’s description of his experiences “would, by and by, perhaps change the way I see the world.”[100] Nevertheless, the lack of understanding and experience identified by Justice Marshall might well have had profound consequences on substantive decisions, including the long-standing view of the Supreme Court that poverty is not a suspect classification.[101]
Some interesting proposals have been made over the years to remedy judicial isolation from the experiences of litigants—proposals that the Article will subsequently address.[102]
Unlike Supreme Court Justices,[103] there has been no empirical study of the background of mediators. This is not surprising. Conducting such a study would be a tall order. There is no uniform licensing authority for mediators within most states, and in many states, anyone can mediate.[104] While certifications for court-annexed mediation tend to be more widespread, it would be virtually impossible to compile the socioeconomic backgrounds of mediators, and even compiling imprecise markers of such backgrounds, such as level of education, would be difficult to accomplish. There is also the challenge of sheer numbers. There are few Supreme Court Justices to research.[105] In contrast, the number of mediators is vast.
Despite these challenges, there are hints that few mediators come from poverty. One example is education. Mediator qualifications for court-annexed programs, while variable, often require a substantial number of hours of training, a college degree, and sometimes even graduate degrees.[106] Individuals from low-income families graduate college at a far lower rate than those from higher income families.[107] Moreover, most mediators come to mediation from other fields which require advanced degrees, particularly law and mental health.[108] Given that a lower percentage of those with poor backgrounds graduate college, it must be, by implication, that even fewer achieve advanced degrees—and this is, in fact, the case.[109] While, to be sure, escaping poverty does happen, statistics demonstrate that it is rare, and by some measures, becoming rarer over time.[110]
In the end, it is fair to conclude that at least a majority of mediators have not lived in poverty, and, as a result, poverty has never been the norm of many mediators’ experiences.[111]
“Court-annexed mediation” are programs through which cases are referred to mediation in the hope that matters will be resolved without litigation.[112] While there is substantial variation within such programs, one feature remains consistent: those who are referred to court-annexed mediation are almost always poor.[113] Given the probability that most mediators in these programs will not be poor, it is crucial to examine what it means for mediators and litigants to participate in these types of programs.
In fact, court-annexed programs have characteristics that intensify the challenges for mediators in understanding the experiences of litigants. Indeed, a cascading series of circumstances demonstrate the significant constraints under which even the most well-intentioned mediators must operate in these settings.
Court-annexed mediation programs often operate in courts of mass justice. Such courts are where many cases involving poor people are adjudicated. Some cases involve two low-income parties, particularly family law matters.[114] Others involve situations where one party is low-income while the other party is higher-resourced, such as in landlord-tenant,[115] debt collection,[116] and foreclosure cases.[117]
Many thousands of cases fill the dockets of such courts—sometimes over a thousand on a single judge’s daily docket.[118] There are only a limited number of methods to adjudicate such massive amounts of cases, especially given the limited judicial resources almost always accorded to such courts.[119] One method is for courts to accord minimal process to low-income litigants.[120] Another method is to settle cases through mediation.
All fifty states now have court-annexed mediation programs.[121] The primary reason for the popularity of these programs is that they can help control dockets.[122] Indeed, empirical studies have assessed the value of court-annexed programs solely in terms of the number of mediated agreements as opposed to the quality of the process itself.[123]
The problem with requiring so many cases to be mediated is that there are only a limited number of mediators available to do the mediating. The results are not surprising: on one day in Boston’s Housing Court, there were seventy people waiting to mediate in five available rooms.[124] The only way to manage such a bottleneck is to formally or informally limit the time available to mediate. Unfortunately, this has become the norm.[125]
It is difficult, if not impossible, to engage in the full, creative process that is the hallmark of good mediation under such circumstances.[126] For purposes of this Article, however, there is another, related consequence: speed impedes reflection. With other parties waiting at the door and the clock counting down to when the court closes, mediators must increasingly rely on assumptions about litigants’ lives.[127] The challenge mediators face when mediating with poor people becomes all the more difficult.
This section discusses both why the problems identified in this Article are so difficult to solve and then offers proposals that, individually or in combination, might enable mediators to better understand the lives of low-income litigants and thereby become better mediators.
There are at least two impediments in making headway in overcoming the lack of mediator understanding of poverty. The first is lack of resources. If there were unlimited budgets, courts of mass justice could be transformed into ones that accord actual due process to litigants, thereby liberating mediation programs from their current imperative to process cases as quickly as possible. This transformation would, in turn, open up more room for mediators to listen to participants and, perhaps, better recognize the realities of poverty. After all, as one leading mediation scholar has put it, parties are “capable of understanding their situations better than the mediator.”[128] Drawing out and building upon that understanding, however, takes time. The problem, of course, is that such a massive reallocation of resources will not happen anytime soon, if at all,[129] despite how crucial supplying adequate resources is to the fair administration of justice.[130]
The second problem is the lack of recognition that the lives of those in poverty are not like the lives of the non-poor.[131] While improper discrimination based on gender, ethnic, racial, religious, and increasingly sexual identity is well recognized in law, socioeconomic differences are, typically, not part of that list.[132] For purposes of mediation, even recognizing that this is a problem is crucial to solving it.
The following proposals seek to both confront and move beyond the dual impediments of resources and recognition.
There is no shortage of mediation training programs. Indeed, virtually every state requires mediators who participate in court-annexed programs to attend a certain number of hours of training.[133] Statutes often specify the content of these trainings, which typically include mediation skills and ethics.[134] Statutes will also usually specify additional training in specific substantive areas, such as psychology, for certain types of mediation.[135] Some statutes also require training to address cultural or gender differences.[136] Maryland, for example, mandates that the forty hours of required mediator training include “cultural, ethnic, and gender issues.”[137] Unfortunately, no state requires training which educates the mediator about (1) the time and resource constraints of court-annexed mediation and (2) the impact of low socioeconomic status on mediation participants.[138]
A straightforward proposal is that mediation training include education about both of these issues. This proposal holds particular promise because it is not likely to require additional resources; there are, after all, training programs in every state, and simply adding another element to what needs to be covered is not particularly burdensome.
This proposal, however, must get past the “recognition” challenge described above—that is, recognizing that there is a problem to begin with.[139] There is an additional complication: simply listing a topic as something to be covered in a training session does not mean that it will be covered or, if it is covered, that it will be done by someone who is knowledgeable about the topic. Indeed, few jurisdictions even set forth the qualifications of trainers or assess the quality of a training program as a whole.[140]
Thus, adding an element of “poverty education” to existing trainings can be valuable if (1) there are assurances that the trainers know something about a topic that is not particularly well addressed in currently available mediation literature; and (2) the amount of time afforded to the topic is extensive enough to furnish meaningful treatment. Nevertheless, a slight amount of education on this topic is better than none at all. Even listing “poverty education” as a matter to be addressed would be an extraordinary achievement in itself, even if, in the end, it is not taught particularly well.
Another promising effort would be something less systemic and based more on individual initiative. There is literature, to be discussed shortly, about how judges can get out of a “bubble” to see how others live, even if one does not have the privilege of having Thurgood Marshall in the chambers next door.[141] This might appear less important for mediators to do given that, in theory, they merely facilitate collaboration between parties and do not impose their own judgments in the process. As this Article has demonstrated, however, it is not quite so simple.[142]
There have been efforts by mediators to face their own assumptions about the world so that they can become more effective mediators. Harold Abramson is an example. He has written about his personal struggle when he mediated a family dispute during which the parties based an agreement upon religious norms that he viewed as inconsistent with law and patently unfair to the wife.[143] Abramson recommends that mediators “understand” their own culture and research the culture of the mediation participants.[144]
Robert deMayo confronted a different problem: the impact of emotional connections that a mediator might have with an individual participant. [145] In order to minimize this risk, he recommends acknowledging both “the emotional vulnerabilities that he or she brings to the mediation process” and how “despite our best efforts, some mediations may be too emotionally provocative” for a mediator to mediate.[146]
There are other ideas that primarily arise from literature on judicial decision-making. Some are hardly realistic. For example, Jerome Frank suggested that all judges engage in psychotherapy in order to have greater self-awareness.[147] Others, however, have gotten closer to the mark by recommending that judges experience—albeit vicariously—what it means to be poor. This can be done in a number of ways.
Traveling: Louis Brandeis once suggested to Oliver Wendell Holmes that he travel to Lawrence, Massachusetts—the site of large textile factories with a workforce of largely poor, immigrant women[148]—to “get a human notion of how it really is.”[149] Actually going to low-income areas is a potentially effective idea, but not in the sense of a gawker looking out of a car window. While well-intentioned, such trips reaffirm a one-dimensional view of poverty that omits the energy and commitment that many low-income people display.[150] “To get a human notion of how it really is” requires learning from as much as learning about the other. Such effective learning might entail attending community meetings, shopping at stores that cater to those on food stamps, or, especially, working with or for neighborhood associations.[151]
Budgeting: The realities of budgeting on a limited income are hard to imagine without having to actually do it. A lack of knowledge about the typical incomes for the working poor and those on public assistance is part of the challenge.[152] Once these are learned, the next step is to calculate the cost of buying basic necessities. Participating in this exercise is not particularly difficult. There are readily available ways to determine the cost of living in different areas of the country[153] and/or the cost of goods for those in poverty.[154] Even taking a few minutes calculating how much lower the working poor income is as a percentage of one’s own income would be enlightening.
A Reading List: Richard Delgado and Jean Stefancic have argued that if judges read narratives about oppressed and marginalized groups they would not have reached the decisions they did in notorious cases such as Plessy v. Ferguson and Korematsu v. United States.[155] There is no question that narratives about the marginalized can be powerful and influential, whether they be fiction[156] or non-fiction.[157] Indeed, the publication of Michael Harrington’s The Other America[158] and the attention it brought to poverty had a substantial influence on public policy in the 1960s.[159] There are examples of narratives about the poor of more recent vintage. A prominent example is Barbara Ehrenreich’s Nickel and Dimed, which compellingly describes the day-to-day lives of the working poor.[160] There are other books[161] and articles[162] discussing the plight of the poor.
The most effective sources would not be theoretical or about the causes or history of poverty—or even about how best to reduce poverty, important as such work may be. Rather, these sources would consist of an understanding of poverty through storytelling, which is something very different.
The racial diversity of mediators is, as one commentator has put it, “dismal.”[163] There is no reason to believe that socioeconomic diversity is much better.[164] It is thus important to support mediators who come from impoverished backgrounds, or, even better, attract more low-income individuals to become mediators.
Such a solution faces substantial obstacles. First, it is difficult to identify potential or current mediators who have the appropriate life experience. Second, as noted above, the supply of potential mediators with the requisite background might be small given the level of education most programs mandate.[165] They usually require a college or professional degree,[166] as well as a designated number of hours of training.[167] While such requirements are designed to help ensure that aspiring mediators have the appropriate knowledge and sophistication to be effective in their new role, such requirements have another, less positive consequence: they act as barriers to entry. Most trainings are expensive: they are run by private mediators or organizations that rarely waive or reduce tuition for those who lack the resources to pay for them.[168] Moreover, obtaining a college degree is of enormous importance to rising out of poverty, yet graduating high school—let alone obtaining a four-year degree[169]—is immensely difficult for poor people.[170]
Thus, it is extremely important, if not essential, to engage in a range of initiatives to attract more people with low socioeconomic backgrounds to mediation. The degree requirement for becoming a mediator has been roundly criticized[171] and should be revisited where it exists. A performance exam would be a much more effective means to assess competency regardless of the educational attainment of an aspiring mediator. There should be scholarships or discounts available for private training programs with governmental support (it would not be fair for private trainers to bear the burden of financing such discounts), and trainings could be offered by non-profit groups in return for trainees agreeing to mediate a certain number of matters under the auspices of the group.[172] There are also a range of degrees that are now related to conflict resolution, including undergraduate degrees, some of which can be taken online.[173] The many organizations and groups that promote mediation might also offer need-based scholarships. Perhaps through these and other initiatives, the socioeconomic diversity of mediation rosters might, step by step, increase.
Good mediation takes time. Participants need to have an opportunity to conceptualize their own problems and craft ways to solve them. This is not a quick process, nor is it meant to be. As two influential mediation scholars have noted, it takes “great patience” to do it well.[174] In addition, mediators, or at least academics and practitioners who write about mediation, draw upon the particularity of disputes as an element of what makes it effective: there are no cookie-cutter mediations, and to view them as such subverts what mediation is supposed to be about.[175]
Thus, mediators need more time in which to mediate. This allows for greater facilitation, less imposition of assumptions about litigants’ lives, and a richer, more productive result for litigants. The goal of mediation should not be docket control. The real—if not only goal—of mediation should be to empower participants. Empowerment for low-income people means to recognize their day-to-day lives, and not doing so means that mediation becomes just another form of “mass justice” to which courts repeatedly subject low-income litigants.
Mediation offers a remarkable opportunity to resolve disputes outside the uncertainty and disempowerment inherent in many judicial processes. A core value of the process is to empower participants, yet empowerment is something that low-income people often lack. This is manifested in their day-to-day lives.
There are many committed, sophisticated mediators in court-annexed programs who devote substantial time with little or no compensation to work with the poor. As this Article has shown, however, blind spots still remain, even with the best of intentions. Those blind spots are due to a simple lack of knowledge about what it means to be poor in America. Learning, understanding, and acknowledging the realities of that life are crucial. As this Article suggests, the most effective means to achieve this goal is through not only enhancing the resources available for court-annexed programs,but acknowledging that the day-to-day lives of the poor are a crucial aspect of being a competent mediator. Armed with this knowledge, mediators will be better able to empower low-income participants to resolve their own disputes, and thus better vindicate the promise of mediation.