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Bias in the courtroom

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Imagine a judge presiding in a courtroom. What comes to mind? Do you have the sense that this person in a black robe interprets the law fairly, and rules on cases in an unbiased manner?

If so, two recent American Bar Association Journal articles may give you pause, and perhaps shake your faith in judges’ abilities to remain unbiased when handing down justice.

The article, “Implicit bias is a challenge even for judges” gives examples of bias found “from various studies over the years” such as “darker skin leads to longer prison sentences.”

Fortunately, there are judges and others who are working to recognize and overcome their biases.

“We view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” Court of Appeals Judge Bernice B. Donald told a gathering of judges, state and federal, from around the country. Donald was on a panel for a program by the association’s Judicial Division titled, “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” at its annual meeting in San Francisco.

Such programs are a positive step in making the courts fairer. But the problem of bias may be greater than we know.

An article entitled, “Louisiana juveniles got longer sentences after unexpected LSU football losses, study finds,” in which “juvenile judges in Louisiana imposed longer sentences in the week after an unexpected football loss by Louisiana State University,” reported that:

• The average length of dispositions — which included probation and custody — handed down by the judges was 513 days for the young people studied. But that average increased by about 35 days after an unexpected loss, according to the researchers.

• When Louisiana State University was ranked in the top 10 before the game, an unexpected loss had a bigger impact — the disposition was 63 days longer an average, according to the study.

• The increased disposition was even higher — 74 days longer — if the judge attended the school as an undergraduate, leading the researchers to conclude that the results are driven by those judges who received undergraduate degrees from the university.

• Black juvenile defendants bore the brunt of the lengthier dispositions.

That a defendant might receive one sentence if a football team wins, and another if it loses, is an injustice. Justice itself becomes petty and arbitrary.

So, what do these articles have to do with divorce?

The answer is, everyone has biases — including your judge, if you are litigating your divorce.

I often write about mediation. But how do the court process and mediation process compare when it comes to bias?

Well, mediators have biases, too, like everyone else. However, the mediation process has protections for parties that the court lacks:

• In mediation, parties speak directly with the mediator. Many mediators will specifically and repeatedly invite corrections from the parties, by saying things like, “Tell me if I understand you. What I think I heard you say is that …” I would say that at least once each session, a spouse clarifies or corrects my understanding of his or her statements.

• In mediation, if the mediator isn’t listening to and understanding you, you’ll probably know and feel it. And, if you feel that the mediator is biased, you can end the process at any time.

• In court, if you have a lawyer, you probably will not speak a single word directly to the judge. It is hard and often impossible to know whether and how the judge is understanding what your lawyer is saying on your behalf. In court, you can’t end the process on your own. If you feel that your judge is biased, you’re stuck with that judge, with rare exceptions.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to http://lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.

Updated 4:38 pm, December 9, 2016
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