Excerpted From: David Hoffman and Helen Winter, Follow the Science: Proven Strategies for Reducing Unconscious Bias, 28 Harvard Negotiation Law Review 1 (Fall, 2022) (298 Footnotes) (Full Document)


HoffmanWinterImagine that you are appearing before a judge and your fate is in their hands. Will the outcome be affected by your race? Statistical research suggests that in criminal proceedings, the more Afrocentric your facial features are, the harsher the sentence. if you need medical treatment? Could your race or your gender affect the care you receive? Again, multiple studies show that the answer is yes. You're applying for a job. Will your race and gender, as indicated on your resume, affect your chances of getting an interview? Once again, the answer is yes, based on numerous studies. you are looking for an apartment to rent, will your race affect your likelihood of finding one? Abundant research shows that the answer is yes. imagine you are buying a car. Are you likely to be offered a better deal if you are White and male as opposed to Black and female? A controlled experiment shows that the answer is yes. if you asked the judge, doctor, employer, landlord, and car salesperson if they are biased? We believe that each of them would most likely say “absolutely not!” and mean it. Yet, the studies cited above suggest otherwise. These studies, and others like them, demonstrate that unconscious biases are ubiquitous in our society and have pernicious effects.

A. What is “Unconscious Bias”?

The term “unconscious bias” (or “implicit bias”) refers to a set of attitudes and stereotypes--whether positive or negative--that we are unaware of. This article will focus primarily on negative biases, such as those that result in discriminatory treatment of the kind described above. Some of these biases may be diametrically opposite of our conscious views but nevertheless affect our behavior. Although explicit bias--i.e., conscious attitudes and stereotypes--is also important and correlates with biased behavior, implicit bias is an even more robust predictor of discriminatory behavior. have found that our biases develop early in our lives. One study found that infants aged six to nine months have a preference for people of their own race and a bias against people of other races. There are several theories as to what causes these preferences and biases. Some contend that implicit bias is driven primarily by ingroup favoritism rather than outgroup animus or aversion. Other researchers contend that a major contributing factor is “status-quo bias”--a mental preference for the existing order--and those studies are supported by findings that people from historically marginalized groups favor ingroup members to a greater extent than ingroup members favor those from the outgroup. And, of course, there is abundant support for the view that a barrage of negative messages received by children (and adults) regarding outgroup members shape both conscious beliefs and unconscious attitudes. article does not seek to determine the extent to which each of the factors described above, among others, may contribute to the problem of implicit bias. Instead, our focus is on the effectiveness of bias-reduction strategies. B. Individual Bias vs. Systemic Barriers

Efforts to end invidious discrimination often confront two issues: individual biases and systemic barriers. The two obstacles are related: the exclusion of historically marginalized groups caused by structural barriers can reinforce individuals' biases against those groups, and such biases reduce the motivation to remove those barriers, or even to examine them.

In our view, the reduction of individuals' biases is not a substitute for concerted action to eliminate structural barriers. Instead, we view bias-reduction strategies as supportive of, and synergistic with, campaigns to break down structural barriers. For example, in workplaces where women and people of color are under-represented in management, efforts to reduce explicit and implicit racial and gender bias can help break down obstacles to promotion, but they are not a substitute for creating structures of accountability to make companies and organizations responsible for achieving greater diversity, equity, and inclusion in the ranks of management.

C. Overview of this Article

As lawyers and dispute resolution professionals, our initial goal in writing this article was to provide a “user's guide” to the burgeoning research on bias reduction for our fellow attorneys and dispute resolvers. Attorneys have a professional duty of nondiscrimination, and dispute resolution professionals (e.g., mediators and arbitrators) have a duty to be impartial. An important component of both of these duties is to try to identify--and counteract--unconscious bias. However, once we began delving into the broad expanse of bias-reduction research, we did not want to limit the focus of our endeavor to dispute resolution or law practice. Reducing unconscious bias should, in our opinion, be a goal of all in our society. Many of the injustices in our world today--a few of which are described in the opening section of this article--are fostered, reinforced, and perpetuated by unconscious biases.

Part II of this Article describes some of the challenges that confront researchers seeking to identify and counteract unconscious biases.

Part III reviews the major bias-reduction strategies that researchers have tested in laboratory and field experiments. We also describe the meta-analytic research assessing the effectiveness of these strategies.

Part IV suggests a variety of practical applications of this research for individuals and organizations.

Finally, Part V poses a number of unanswered questions that, in our view, deserve the attention of researchers seeking to improve bias-reduction strategies.

[. . .]

Since the invention of the IAT in the mid-1990s, social psychologists have created an enormous body of research regarding the measurement of unconscious bias and the effectiveness of strategies for reducing such bias. Unfortunately, but perhaps not surprisingly, unconscious bias has proven highly resistant to change. This should be a concern for all and especially for those, such as mediators and lawyers, who have a professional responsibility to be unbiased.

Experiments in the laboratory and in the field provide a substantial basis for optimism that the interventions described in this article--awareness, motivation, individuation, perspective-taking, contact, stereotype replacement, and mindfulness--can be effective in reducing unconscious bias. Among the challenges is developing practices--for both individuals and organizations-- that combine these strategies in ways that could prove to be synergistic and committing to sustain such practices over time. The well-worn path of one-and-done unconscious bias training has been shown to be woefully insufficient.

The research reviewed in this article suggests that implementation of bias-reduction strategies on an institutional level can be enhanced by an articulated and sustained commitment to equity and inclusion, the creation of diverse teams, the use of discussion groups and affinity groups, and periodic trainings.

On the individual level, each of us can be more intentional about shaping our indirect and direct contact and involvement with people whose lives and identities are different from our own--through our social experiences and our experience of the world through art, literature, and other media. In addition, we can be tenacious in self-examination, conscious of the stereotypes we hold, and intentional about our motivation to make the world a better, less-biased place.

David A. Hoffman is a mediator, arbitrator, attorney and founding member of Boston Law Collaborative, LLC.

Helen Winter is a mediator, lawyer and founder of a German peer mediation program, R3solute; she is also a Graduate Research Fellow at the Program on Negotiation at Harvard Law School and a Ph.D. candidate at the European University Viadrina in Frankfurt, German