ODR could move beyond tick boxes, formal salutations, new research says
Options like written mediation could provide more flexibility for parties when it comes to gender identificaton, says mediator and arbitrator Marc Bhalla.
Bhalla recently published an article on “Gender Identity & Text-Based, Online Mediation,” in the McGill Journal of Dispute Resolution. The research comes as online dispute resolution has become more popular during the COVID-19 pandemic.
Bhalla was first inspired to research the topic after his LLM studies revealed that much of the scholarship on gender and negotiation relied on comparing men and women, which Bhalla thought worked against the idea that mediation be customized to the individuals involved.
“It's important to recognize how far society has come in understanding the problems with the traditional gender tick box. We've come a long way in recent years to understand diversity and understand inclusion — and do more to let people be who they are, rather than force them to try to fit into some preconceived notion,” says Bhalla.
“So I think that that, along with online dispute resolution, kind of have set the right tone for us to be able to embrace some of these opportunities now when we maybe wouldn't have 20,30 years ago.”
For example, if gender isn’t central to the dispute, and legal names aren’t required in the dispute resolution process, parties can opt to use gender neutral versions of their names online, Bhalla says.
“The closest comparison is the equivalent of an email exchange. So people can participate, not necessarily in real time, but when it's convenient for them. . . . I find that the self-represented parties benefit by being able to have more time to put together what they want to say,” says Bhalla. “We have to be careful, because in certain legal processes, you have to use full legal names. The old idea of somebody going by Pat as opposed to Patrick or Patricia — giving a party before me the option of how they want to present themselves — gives them more choice over the extent to which they want to share.”
Bhalla, who practises at Elia Associates PC in Toronto, says that adjudicators should allow individuals to decide how much they want to signal their genders during proceedings. Restrictions on gender expression could cause participants to become “discouraged from revealing their actual interests or otherwise communicating openly; they may feel that they have to present in accordance with imposed gender- based expectations surrounding what they want and how they negotiate,” Bhalla wrote.
“I don't like the idea of processes imposing gender upon people. If you consider a mediator or an arbitrator who passes judgment on a party before then based on the way that they look. It can create a whole slew of problems, they get into potential discrimination and biases that have no place in the process,” says Bhalla.
Some may prefer to identify their gender, but, Bhalla has seen that when a judge mis-genders someone in court, it can distract the parties.
“I try to get away from formal salutations — it makes it a little bit more comfortable and informal for people to go by their first names initially, but I let the parties before me get as many gender cues as they want as opposed to requiring them or imposing anything upon them. I know sometimes people involved in this field are trying to be respectful to their clients by using those formal traditional gendered salutations. But a lot of times that is a big jump,” says Bhalla. “I don't think there's a place for that in ADR. If somebody wants to be called Mr. or Miss, they're welcome to say that, but I don't think that the process facilitator — particularly when who's supposed to be impartial —needs to bring that into the process.”
As Bhalla writes in the paper, “To imply that all who fit into a particular gender box will behave the same way promotes prejudice and imposes unfair expectations upon mediation participants.”
Bhalla’s paper also notes that, on the other side of the debate, many people do not know how to relate to others without relating to their gender.
“Referring to a party by a number rather than a name could feel dehumanizing. As it is, ‘[p]eople in destructive conflict begin to dehumanize their adversaries when the conflict polarizes relationships,’” the paper says.
“Almost 75 per cent of the original members listed on the [Condominium Authority Tribunal]’s website expressed their gender as female. Removing gender expression from such profiles could propagate perceptions of male-domination in this respect and take away the opportunity to display diversity. Further, removing only gender and not expressions of other characteristics, such as ethnicity cues offered by way of surnames, risks disregarding gender in comparison to other aspects of equality.”
However, now that more dispute resolution is being done online, there are opportunities to use more gender-neutral options if it makes the parties more comfortable, Bhalla says.
In the paper, Bhalla says that stereotyping genders can fracture people into groups, which can perpetuate bias in conflicts.
“Asking a party who they are and who they want to be in the context of their dispute and in connection with others involved in it makes sense. By contrast, asking a party who they are and expecting them to behave in alignment with generalized, societal assumptions about gender categories does not. The inclusion or imposition of gender stereotypes in mediation impedes the ability of parties to participate authentically therein and, by extension, decreases the likelihood of an authentic, collaboratively-designed outcome,” wrote Bhalla.
“The removal of faultlines could move away from a focus on differences in mediation. This would discourage generalizations and minimize the potential for parties involved in a dispute to view one another as belonging to opposing groups, or as failing to adhere to the behavioural characteristics imposed by their general common categorization.”