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  • by Roberto Rodriguez
  • 19. September 2018
  • 2 Comments

How White Privilege can be Perpetuated in Mediation

White privilege is perpetuated in mediation because racism in the United States is healthy and strong. Racism permeates all aspects of society. Neither the many laws that have been passed to eradicate its effects, nor sustained efforts to educate the population, have weakened its negative influence. White privilege is a consequence of racism, which is pervasive in all areas of society, although the presence of white privilege sometimes is invisible. Mediation, with all its many good goals and characteristics, is not free from the influence of white privilege because, in most instances, this influence occurs unconsciously or subconsciously. Mediation is part of the American legal system, and as such, is still a long way from eliminating white privilege. In this paper, I will analyze how white privilege is perpetuated in mediation, despite the best intentions of mediators.

White Privilege

White privilege is everywhere, but because it is an integral part of our social, political, and economic system, it is invisible. White privilege is part of the American culture, because an obliviousness about white advantage, like obliviousness about male advantage, is kept strongly inculturated in the United States so as to maintain the myth of meritocracy, the myth that democratic choice is equally available to all (McIntosh, p. 105). In addition, white privilege is mostly unconscious, because a white consciousness of whiteness is predominantly unconsciousness of whiteness (Flag, p. 970). McIntosh (1997) described white privilege in this manner: I have come to see white privilege as an invisible package of unearned assets that I can count on cashing in every day white privilege is like an invisible weightless knapsack of special provisions, assurances, tools, maps, guides, codebooks, passports, visas, clothes, compass, emergency gear, and blank checks (McIntosh, p. 91).

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White privilege serves several functions in society. Whites tend to look at themselves, others, and society through a distorted lens in which the structural privileges they enjoy and the cultural practices of their group are represented as normal and universal (Bell, p. 12). The main narrative of the American culture implies a white over color ascendancy because it serves important purposes, both psychic and material racism advances the interest of both white elites (materially) and working-class people (psychically), large segments of society have little incentive to eradicate it (Hardiman & Jackson, p. 17).

The system of white privilege endures, because the benefits obtained by whites are not perceived as such, and because many non-whites, maybe unconsciously, also cooperate with their own oppression, colluding in maintaining the status quo both because they internalize the false belief that the system is correct and as a means of survival†(Bell, p. 12).

The judiciary system is heavily biased against non-whites. Persons of color are over-represented in the prison population and frequently receive longer and more severe sentences than whites. However, this is not because persons of color commit most of the crimes in society. Whites, which commit most white collar and corporate/industrial crime “cause more personal injury, death and property loss than all street crime combined, even on a per capita basis†(Delgado & Stefancic, p. 43). However, whites fare much better than non-whites in the judiciary system.

The benefits of white privilege in society are pervasive. Numerous studies indicate that whites receive more favorable treatment than blacks in virtually every area of social interaction (Flag, p. 983). In the documentary film (seen in class) John and Glenn were almost identical in age, education, and economic position, except that John was white and Glenn was African-American. John constantly received the benefits of white privilege. He was well received everywhere, was able to fill out job applications any time he wanted, negotiated to purchase a car at a lower price and with a lower down payment than Glenn, and was not watched carefully when shopping. In addition, when both men pretended to have been locked out of their cars, John received help from passerby, but not Glenn.

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Racism

The system of white privilege is perpetuated because of the existence of racism in our society. Racism is everywhere, including our legal system. Racism is part of the structure of legal institutions (Delgado & Stefancic, 2001, p. xx). The legal system is influenced by white privilege, because all disputes, to a certain extent, are influenced by group membership, such as race, class, and gender (Wing & Rifkin, p. 183). In addition, racism can occur at both an unconscious and conscious level (Definitions of General Concepts I: Racism, p. 165).

Racism can be manifested or expressed in many ways, although social scientists have coined a word for all those racist interactions between whites and non-whites. These events are called micro-aggressions, which, according to Delgado & Stefancic (2001) are those many sudden, stunning, or dispiriting transactions that mar the days of women and folks of color. Like water dripping on sandstone, they can be thought of as small acts of racism, consciously or unconsciously perpetuated, welling up from the assumptions about racial matters most of us absorb from the cultural heritage in which we come of age in the United States (Delgado & Stefancic, p. 2).

Racism, of course, is not the only form of discrimination in our society, because there are several other discriminated groups, although in theory all are equal. Hardiman & Jackson (1997) mention that examples of the unequal treatment of African Americans and poor people of all races by the criminal and civil justice system, housing and employment discrimination against gays and lesbians, unequal access to quality education for the poor and working class, and exclusion from social and cultural institution such as civic groups and social clubs that have historically excluded women, men of color, and Jews (Hardiman & Jackson, p. 19) demonstrate the extent of oppression in our society.

The elimination of racism in American society proceeds at a very slow pace. It usually requires not only to pass legislation, but also to have the police, government officers, and the courts enforce such legislation, which is not always done. The net result is that little advances are made, because “our system of civil rights law and enforcement ensures that racial progress occurs at just the right slow pace (Delgado & Stefancic, p. 31).

Neutrality

One of the stated goals of mediation is to provide a neutral setting where the parties can settle their grievances and reach a mutually satisfactory solution. However, this goal of neutrality is illusory, because if the parties are not equal outside of the mediation room they will not be equal in mediation. Rouhana & Korper (1996) said that it seems implausible that equal status in the room, in and of itself, can have a serious impact on the conflict relationship when the unequal status outside the room remains the status quo (Rouhana & Korper, p. 361). Wing & Rifkin (2001) mention that “the predominant view of mediation reflects a devotion to the concept of neutrality which our approach challenges as impossible and undesirable in an oppressive society (Wing & Rifkin, p. 182-183). The approach followed by Wing & Rifkin (2001) recognize oppression’s role in society, that many conflicts are likely to emerge as a direct result of differing circumstances that people experience because of their oppression, and that mediation should recognize and deal with those issues.

The mediator comes to the mediation session impregnated with the prevailing culture. Cobb & Rifkin (1991) explored the findings in the conflict resolution field, and concluded that mediators could not be neutral (Wing & Rifkin, p. 189). Mediators, like all other human beings, have biases, values, and points of view a mediator’s attempt to remain neutral is to some extent always doomed to failure (Grillo, p. 1587). In mediation, each person is viewing the world through one of the stages of racial identity development (Wing, 1998, quoted in Wing & Rifkin, p. 187). The stages of racial identity development were developed by Hardiman & Jackson (1992) and consist of (a) native/no social consciousness. (b) passive stage of acceptance, (c) resistance, (d) redefinition, and (e) internalization (Wing & Rifkin, p. 186-189).

In the first stage, the person is native or has no social consciousness. The individual is unaware of the rewards and sanctions associated with belonging to a racial group. People in this stage accept that Whites are superior to people of color. In the second stage, passive stage of acceptance, the person unconsciously accepts the white superiority. In the third stage, resistance, the person focuses on understanding and resisting the existence of racism and its multiple manifestations in everyday life. In the fourth stage, redefinition, the person focus on redefining her own racial group’s history and culture. Lastly, in the fifth and last stage, internalization, people achieve a new sense of racial identity not based on or in reaction to the assumptions and functions of racism, but at this point they have reached a heightened appreciation for the experiences of oppressed people.

Even if neutrality could be achieved, still this would neglect the needs of people of color and favor white privilege. Cobb & Rifkin (2002) mention that the structure of the mediation process itself contributes to the marginalization of one disputant (the second disputant to tell the story), setting an accusation/justification sequence in place that perpetuates adversarial interactions and reconstitutes one story as dominant (Cobb & Rifkin, p. 60). The mere opportunity to tell a story in mediation does not ensure that one story will not colonize another, marginalizing the disputant, along with their story (Cobb & Rifkin, p. 57). Or worse, in some cases, one side never tells its own story; it simply refutes or denies the story of the other (Cobb & Rifkin, p. 53).

Mediators are not free from their own cultural baggage because they also participate politically in the story transformation by making summaries that recontextualize important events in the plot summaries provide an important opportunity for mediators to shift the semantic frames and moral orders in disputants’ stories (Cobb & Rifkin, p. 56). The same authors mention that in 24 of 30 cases, the settlements emerge out of the initial narrative! This means that 80% of the time, the second speaker never is able to tell a story that is not colonized by the dominant story! (Cobb & Rifkin, p. 61).

Therefore, what mediators understand as neutrality is to follow a symmetrical approach could benefit those belonging to a dominant or higher power group, White Anglos, and exclude and undermine the target or lower power group members, people of color (Bell, 1997, cited in Wing & Rifkin, p. 192). One way in which mediators could balance the relative power of the parties in mediation would be to make asymmetrical interventions to try to help the weaker party tell her story and make it part of the final narrative. Issues of race, ethnicity, and others, should be brought forward by the mediator as legitimate issues that may need to be addressed. Matsuda (1995) reminds us that non-whites feel that lack of legal redress for racist acts is an injury often more serious than the acts themselves (Matsuda, p. 74).

Formality

Many scholars have argued that people of color are more favored by the formality of the court system than by the informality of alternative conflict resolution methods, including mediation. Delgado et al. (1985) expressed that “procedural formality recognizes inequality and attempts to compensate for it by making both parties conform to the same standards… one cannot have equity and informality at the same time†(Delgado et al., 1395-1396). The same authors added that “adversarial procedure counteracts decision-maker bias because it combats the natural human tendency to judge too swiftly in terms of the familiar that which is not yet, fully known†(Delgado et al., p. 1389).

However, this does not mean that white privilege does not exist in the judiciary or court system, only that formality to reduce its effects. Although color blindness, and consequently, white privilege, seems firmly entrenched in the judiciary, a few judges have made exceptions in unusual circumstances (Delgado & Stefancic, p. 22).

One way to make the mediation process more “fair†to non-whites would be to establish more rigorous guidelines or rules that clearly specify the scope of the proceedings, require that such proceedings be open to the public as in the court system, and provide some form of higher review if, after agreeing to a settlement, one of the parties decide that the manner in which the procedures were followed influenced or forced her to accept a settlement that she thought was unfair.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) methods, which have been advanced as providing an avenue where the parties can talk out their grievances and arrive to a mutually satisfactory solution, because of its informality and neutrality bases, may actually harm non-white parties. Alternative dispute resolution may be speedy and cheap, but if you are a woman or member of a racial minority group, ADR is apt to compound the disadvantages you bring to the bargaining table (Delgado, p. 1395). The mediation centers are reinforcing society’s tendency to treat non-whites differently, because mediators, when treating non-whites, avoid employing the deferential responses that they typically provide to white disputants (Cooper, p. 135). Delgado (1997) also mentions that the purpose of alternative dispute resolution systems is not to help the parties in the dispute, but to help the courts and to channel anger out of the courts. He wrote, “informal alternatives were more or less consciously designed to siphon discontent from courts (Delgado et al., p. 1394).

ADR is also advanced as a method that helps resolve problems and eradicate conflicts, which are seen as aberrations in a civilized society. This view of conflict as abnormal also has been criticized by scholars. Delgado (1997) mentions that an even more basic premise of ADR namely that conflict is pathology, an aberration from a peaceful form or baseline is false. Instead, things are the other way around, and conflict is normal (Delgado, p. 1397). Delgado added that conflict is not pathology, but the ordinary and natural state of affairs in a radical free market society like ours (Delgado, p. 1402).

The outcomes of mediation demonstrate that non-whites do not fare as well as whites. In mediation, outcomes favor the stronger party even more so than standard, in-court lawsuits (Delgado, p. 1408). In mediation, whites get an advantage as they do in the court system and everywhere else. Hermann (1994) mentioned that an ethnic minority respondent could be predicted to pay twenty cents on the dollar more (Hermann, p. 10). When a non-white party is in mediation, he or she may agree to something because he is nervous, intimidated, exhausted, or frightened (Grillo, p. 1598). The mediation option may deprive the non-white party of what he or she is justly entitled, because you may get no hearing because the mediator and your adversary may marshal an entire constellation of attitudes and prejudices to shut you up and trivialize your pleas (Delgado, p. 1404).

One way to improve not only mediation but also all alternative dispute resolution methods would be to identify those types of conflicts in which the dangers of prejudice are greatest and direct those grievances to the formal court system. In addition, alternative dispute resolution methods, including mediation, should be voluntary. Legislation should be passed banning all mandatory mediations for the reasons mentioned above.

Concluding Comments and Recommendations

Mediation is part of a racist society and, as such, is permeated by an invisible white privilege which is a detriment to non-whites pursuing this method to resolve their conflicts. However, if mediators could learn to use the proper lens to see white privilege for what it is and eliminate its noxious effects, then they could make mediation work for both whites and non-whites.

Mediation could be improved by, among other things:

  1. Making compulsory the training of all mediators in race and race-related issues, including the issues of white privilege.
  2. Providing rules that clearly specify the scope of the mediation proceedings, require open proceedings, and provide some form of higher review (Delgado et. al. p. 1403).
  3. Identifying those areas and types of ADR in which the dangers of prejudice are greatest, and direct those grievances to formal court adjudication (Delgado et al., p. 1404).
  4. Eliminating mandatory mediation. Mandatory mediation provides neither a more just nor a more humane alternative to the adversarial system of adjudication (Grillo, p. 1549).
  5. Having the mediator make asymmetrical interventions in those cases where there is a non-white party, by raising questions of race knowing that some participants may not share the perspective that it is a relevant topic (Wing & Rifkin, p. 196).

Bibliography

Picture:

Berlin Wall 2018

Literature:

Bell, L.A. 1997. “Theoretical foundations for social justice education. In M. Adams, L.A. Bell & P. F. Griffin (Eds.). Teaching for diversity and social justice. New York: Routledge, pp. 3-15.

Cobb, S. 1994. “A Narrative Perspective on Mediation: Toward the Materialization of the Storytelling Metaphor†pp. 48-63. In New Directions in Mediation: Communication Research and Perspectives, ed. J.P. Folger and T.S. Jones. Thousand Oaks, CA: Sage.

Cobb, S. and Rifkin, J. 2001. Practice and Paradox: Deconstructing Neutrality in Mediation. In Chew, P.K. (Ed.). 16 Law and Social Inquiry 35, 52-62. Chicago: University of Chicago Press.

Cooper, C. 2001. Mediation in Black and White: Unequal distribution of empowerment by police. In J. Asim (Ed.). Not Guilty: Twelve black men speak out on law, justice, and life. New York: Amistad, HarperCollins, pp. 125-141.

Definitions of General Concepts I: Racism, pp. 88-89. 1997. Racism Curriculum & Design, Wijeyesinghe, C. Griffin, P. and Love, B. Teaching for diversity and social justice, edited by Adams, M., Bill, Griffins, P. Routledge, (Adapted from Hardiman and Jackson, 1980).

Delgado, R. 1997. Alternative Dispute Resolution: Conflict as Pathology: An Essay for Trina Grillo. 81 Minnesota Law Review 1391.

Delgado, R. & Stefancic, J. 2001. Critical Race Theory. New York: New York University Press.

Delgado, R., Dunn, C., Brown, P., Lee, H. & Hubber, D. 1985. Fairness and formality: Minimizing the risk of prejudice in alternative dispute resolution. Wisconsin Law Review 953, 1559 (1985).

Flag, B.J. 1997. The transparency phenomenon, race-neutral decision-making and discriminatory intent. 19 Michigan Law Review 953, p. 970-985.

Grillo, T. 1991. The mediation alternative: Process dangers for women. Yale Law Journal, 100, 1545-1610.

Hermann, M. 1994. New Mexico Research Examines Impact of Gender and Ethnicity in Mediation. In Chew, P.K. (Ed). Dispute Resolution Magazine, 10-11 (Fall) American Bar Association

Hardiman, R. & Jackson, B.W. 1997. Conceptual Foundations for Social Justice Courses, in M. Adams, L.A. Bell & P. Griffins (Eds.). Teaching for diversity and social justice. New York: Routledge, pp. 16-29.

Matsuda, M. 1995. Looking to the bottom: Critical legal studies and reparations. In K. Crenshaw, N. Gotanda, G. Peller & K. Thomas (Eds.). Critical race theory: The key writings that formed the movement. New York: New York University Press, pp. 63-79.

McIntosh, P. 1997. White privilege and male privilege: A personal account of coming to see correspondences through work in Women’s Studies. In R. Delgado & J. Stefancic (Eds.). Critical white studies: Looking behind the mirror, pp. 291-299.

Rouhana, N. R. & Korper, S.H. 1996. Case analysis: Dealing with the dilemmas posed by power asymmetry in inter-group conflict. Negotiation Journal, October, pp. 353-366.

Wing, L. & Rifkin, J. 2001. Racial Identity Development and the Mediation of Conflicts. In Wijeyesinghe, C.L. & Jackson, B.W. (Eds.). New perspectives on racial identity development: A theoretical and practical anthology. New York: New York University Press, pp. 182-208.

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2 Comments on How White Privilege can be Perpetuated in Mediation

Great article and great starting point to begin to unpack the history of race and racial political/legal/social economy. These concerns are not limited to the US but indeed the entire Atlantic World, with varying manifestations. Rodriguez mentions Peggy McIntosh several times but even her groundbreaking work has been critiqued in recent years, for focusing on individuals rather than the structural forces of racism which have allowed it to persist. In the US particularly, I think it’s useful to unpack the ways the Constitution, the US legal system, the US K-12 & higher education systems and the American economy have been literally held together by white supremacy; and used to subjugate indigenous, African-American, Asian, Latinx & Eastern European people. From my perspective, these understandings are central to know the racial inheritance we’ve all received; and the ways we personally operate among each other and as part of those systems. There is no us v. them; no good mediator v. bad mediator. We all have to engage with these reflections and this study of history because we are all impacted. Even if the mediator(s) and participants were African-American, for example, white supremacy would still show up in the room. So these discourses are timely, relevant and worthy of intentional, ongoing discussion.

An interesting article that assisted in looking at the practice of mediation using a different lens. Useful information to assist mediators in looking at the process and how neutrality a goal that is not always realized.

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