Analogies between a finder of fact (a judge or jury) and referees or umpires (the arbiter of a game’s rules) are often made. It is open to debate whether the analogy firmly holds. However, it is often interesting to discuss whether any “neutral” decider of an outcome (game rules or rules of law) have biases.
When a party enters the courthouse or arbitration room, each party expects (and hopes) that the person(s) making the decision as to who is “right” is being impartial and fair. It is certainly open to debate how to define fair, which is usually in the eye of the beholder. Each time I went through arbitration training (to be a private judge), the class is asked to perform an exercise. The class is broken up into groups of three people. One person plays the arbitrator, one person the complainant and the other the respondent. Each group is given the same exact fact pattern and the parties make their cases. After a specified period of time, the arbitrator makes their ruling which is turned into the person running the training. Every single time I’ve done the exercise, the distribution of rulings in the room fall out from one end of the possible spectrum to the other with everything in between.
Why? Everyone had the same exact case to argue. Shouldn’t “justice” be consistent? In reality, several things happen. First, not every party presents the case the same exact way. Some people are more effective than others, just as some lawyers are better skilled than others. In a real case, anyone who speaks (lawyers, witnesses) can have good and bad days. Trials are performances. Second, every single human being has biases. We grow up with things we like or don’t like. We have all had good and bad experiences with things, people and scenarios. These create the filters through which we see the world. There is also a theory many attorneys ascribe to which states that whomever the jury or arbitrators likes better in terms of attorneys and litigants will win the case. Likability trumps “rightness”.
Getting back to the sports (referee) analogy, there have been some recent studies showing bias in referees. And I am not referring to the Tim Donaghys of the world who seek personal gain from their on-the-court rulings. In the Netherlands, two professors discovered that soccer (the other football) referees are more likely to call ambiguous fouls on taller players. A study out of England showed that referees favored home teams in their calls, especially in disciplinary sanctions (yellow and red cards). From the world of Tae Kwon Do, referees tend to award more points to competitors wearing red uniforms.
In the U.S., college basketball referees tend to also favor the home team by calling fewer fouls. The college refs also try to level the playing field for the teams by issuing “make up” calls, calling more fouls on the team in the lead, and trying to even up the number of fouls between the teams regardless of the aggressiveness of the level of play of each team. A 2007 study also found that white NBA referees tend to call more fouls on black players than white players.
Even just looking at the games you watch, do you agree with each decision the referee or umpire makes regarding your team? How about instant replay, the analogy of an appeal in court? Does the referee get it right even when they have a TV with 20 angles and slow motion to look at each play? Sometimes not.
So what does all of this tell you? Try to resolve the case without having someone else decide it for you. That’s what mediation helps the parties accomplish. The outcome is on your terms and is unaffected by the biases of others.
Please contact me if you would like to further discuss how mediation can help facilitate a resolution to your lawsuit, divorce or family dispute.
Tags: Arbitration, Commercial Mediation, Divorce Mediation and Law, Elder Mediation and Elder Law and Issues by Marvin Schuldiner
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