Rule 1(b)(vii) provides: “The policies, procedures and providers of dispute resolution services should reflect the diverse needs and background of the public” (emphasis added). And Rule 7(b) (“Diversity”) provides: “Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers” (emphasis added).
See Fiss O. Against settlement, Yale LJ. 1984;93(6):1073; Delgado E. Fairness and formality: Minimizing the risk of prejudice in alternative dispute resolution. In: Alfini J, et al. editors. Mediation theory and practice. 2nd ed. New York: LexisNexis; 2006. p. 360: “The risk of prejudice is greatest when a member of an in-group confronts a member of an out-group; when that confrontation is direct, rather than through intermediaries; when there are few rules to constrain conduct; when the setting is closed and does not make clear that ‘public’ values are to preponderate; and when the controversy concerns an intimate, personal matter rather than some impersonal question…”.
Grillo T. The mediation alternative: process dangers for women. In: Alfini J, et al., editors. Mediation theory and practice. 3rd ed. New York: LexisNexis; 2007. p. 362.
Kolb D, Coolidge G. Her place at the table: a consideration of gender issues in negotiation. In: Breslin JW, Rubin JZ, editors. Negotiation theory and practice. Cambridge, MA: Harvard Law School; 1991. p. 261, 265, 269.
Babcock L, Laschever S. Women don’t ask. Princeton, NJ: Princeton University Press; 2003. p. 172.
Herman M, et al. An empirical study of the effects of race and gender on small claims adjudication and mediation. In: Alfini J, et al., editors. Mediation theory and practice. 2nd ed. New York: LexisNexis; 2006. p. 371–7.
The same was not true if one of the two mediators was white.
Herman, supra note 8, at 374.
Id. (Significantly, women mediators were more successful in reaching agreement in mediation than their male counterparts.)
Ayres I. Fair driving: gender and race discrimination in retail car negotiations. Harvard L Rev. 1991;104(4):817.
Goldin C, Rouse C. Orchestrating impartiality: the impact of “blind” auditions on female musicians. Am Econ Rev. 2000;90(4):715.
Judge TA, Cable DM. The effect of physical height on workplace success and income: preliminary test of a theoretical model. J Appl Psych. 2004;89(3):428.
See generally Rhode D. The beauty bias: the injustice of appearance in life and law. New York: Oxford University Press; 2010.
Rhode D. Prejudiced toward pretty. National LJ. 2010 May 3 (“In a famous study, ‘Lawyers’ Looks and Lucre,’ economists Jeff Biddle and Daniel Hamermesh estimated that attractiveness may account for as much as a 12 % difference in attorneys’ earnings.”)
Gunnell JJ, Ceci SJ. When emotionality trumps reason: a study of individual processing style and juror bias. Behav Sci Law. 2010;28(6):850.
Blair IV, et al. The influence of Afrocentric facial features in criminal sentencing. Psychol Sci. 2004;15(10):674–9.
McIntosh P. White pr 2).
For a recent, highly acclaimed historical account of the treatment of African-Americans’ migration to the North and West in the 1900s, see Wilkerson I. The warmth of other suns. New York: Random House; 2010. An effective treatment of anti-Muslim bias in the United States post-9/11 is Eggers D. Zeitoun. San Francisco: McSweeney’s; 2010, which is a personal account of events following Hurricane Katrina in New Orleans.
Brown V. Board of education. 347 U.S. 483; 1954.
Id. at 494 & n.11.
Williamson IR. Internalized homophobia and health issues affecting lesbians and gay men. Health Educ Res. 2000;15(1):97–106.
Yoshino K. Covering; 2006.
Steele, C. & Aronson, J., Stereotype threat and the intellectual test performance of Affrican Americans, J Pers Soc Psychol, 1995, vo. 69, no.5 (797–811).
Walton GM, Spencer SJ. Latent ability: grades and test scores systematically underestimate the intellectual ability of negatively stereotyped students. Psychol Sci. 2009;20(9):1132–9.
Maass A, D’ettole C, Cadinu M. Checkmate? The role of gender stereotypes in the ultimate intellectual sport. Eur J Soc Psychol. 2008;38(2):231–45.
Steele CM, Aronson J. Stereotype threat and the intellectual performance of African Americans. J Pers Soc Psychol. 1995;69(5):797.
Shih M, Pittinksy T, Ambady N. Stereotype susceptibility: identity salience and shifts in quantitative performance. Psych Sci. 1999;10(1):80; see also Kray LJ, et al. Stereotype reactance at the bargaining table: the effect of stereotype activation and power on claiming and creating value. Personality Soc Psychol Bull. 2004;30(4):399, 400–401
Drexler M. How racism hurts—literally, the Boston globe. 2007 July 15; Sect. E:1.
“Race, Racism and Health.” Report, Robert Wood Johnson Foundation, May 8, 2018. https://www.rwjf.org/en/library/collections/racism-and-health.html.
See Krieger N. Discrimination and health inequities. Int J Health Services. 2014; 44:643–710.
Spoelstra M Negotiation across cultural boundaries. Negotiation Academy; 2011.
Salacuse JW. Ten ways that culture affects negotiating style: some survey results. Negotiation J. 1998;14(4):223–4.
The United States; the United Kingdom; France; Germany; Spain; Mexico; Argentina; Brazil; Nigeria; India; China; and Japan.
Cultural indicators, of course, can also be found domestically in various non-ethnic groups, such as the LGBTQ community, in which there are a number of sub-cultures as well (such as gay male, lesbian, and transgender communities).
LeResche D. A comparison of the American mediation process with a Korean-American harmony restoration process. In: Mediation and negotiation: reaching agreement in law and business. 2nd ed. New York: LexisNexis; 2007. p. 197.
Freya S. The journey’s echo. In: The peace corps cross cultural workbook. p. 75, [Internet] [cited 2012 Dec 3]. Available from: https://files.peacecorps.gov/multimedia/pdf/library/T0087_culturematters.pdf.
Salacuse JW. Negotiating: the top ten ways that culture can affect your negotiation. Ivey Business Journal; 2004. https://iveybusinessjournal.com/publication/negotiating-the-top-ten-ways-that-culture-can-affect-your-negotiation/. (Section 4).
See Gilligan C. In a different voice: psychological theory and women’s development; 1993.
See Tannen D. You just don’t understand: women and men in conversation. 2nd ed. New York: Ballantine Books; 1991.
See Heim P, Murphy S, Golant SK. In the company of women: Indirect aggression among women (2003); Videotape: The Power Dead-Even Rule and Other Gender Differences in the Workplace (Dr. Pat Heim Series1995).
Heim P, Murphy SA, Golant S. In the company of women: indirect aggression among women. New York: Penguin Group; 2003. p. 84–106.
Mulac A, Bradac JJ, Gibbons P. Empirical support for the gender-as-culture hypothesis: an intercultural analysis of male/female language differences. Human Comm Res. 2001;27(1):121.
For a useful discussion of these concepts, see Killerman S. The Genderbread Person. http://itspronouncedmetrosexual.com/2015/03/the-genderbread-person-v3/.
This implicit attitude test. Available from: http://www.implicit.harvard.edu.
Weissberg R. Pernicious tolerance: how teaching to ‘accept differences’ undermines civil society: Google Books, Transaction Publishers; 2008. https://tinyurl.com/ycdlsqov. p. 102.
Stanley D, Phelps E, Banaji M. The neural basis of implicit attitudes. Curr Directions Psych Sci. 2008;17(2):164.
Vedantam S. See no bias. The Washington Post. 2005 Jan 23; Sect W:12.
Steele R. Understanding culture in mediation. Mediate.com – Find mediators – World’s Leading Mediation Information Site; 2015. www.mediate.com/articles/SteeleR1.cfm.
LeBaron M. Bridging troubled waters: conflict resolution from the heart. San Francisco: Josey-Bass; 2002. p. 245.
Fisher R, Ury W. Getting to yes; 1981: ch. II(4).
Roth S. LICSW, who has studied Maori customs in connection with her travels in New Zealand.
Fowler A, Gamble NN, Hogan FX, Kogut M, McComish M, Thorp B. Talking with the enemy. The Boston Globe, 2011 Jan 28; Sect. F:1.
Susskind L. How to negotiate when values are at stake. Negotiation; 2010 Oct.
Liebman C. Mediation as parallel seminars: lessons from the student takeover of Columbia University’s Hamilton Hall. Negotiation J. 2000;16(2):157.
Mnookin R. Bargaining with the devil: when to negotiate, when to fight. New York: Simon & Schuster; 2010. p. 177–208.
A notable exception is the annual conference of the Center for Alternative Dispute Resolution in Maryland. http://www.natlctr4adr.org.
Bureau of Labor Statistics. Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity . Available from: https://www.bls.gov/cps/cpsaat11.htm.