Reflections by retired Judge of Supreme Court of California

I attended a lecture at Melbourne University (old Stomping Ground!) earlier this week to hear Justice Eugene M Hyman a retired Supreme Court judge from California speak about Domestic Violence, Implicit Bias and the Legal System.

The presentation was organised by the Melbourne Social Equity Institute and the Melbourne Research Alliance to End Violence against Women and their Children.

His Honour’s opening comments reflected on the fact that no matter what country he visited, the most unhappy people were those involved in family law disputes and appearing before the court to obtain decisions relating to parenting matters. His view is that this is because these people generally do not have help. Or the help they have is not actually helping. In California, litigants are not entitled to an appointed representative, like in criminal matters, and because the cost of legal representation is so high, between 70-75% are unrepresented. In Australia, we also have a problem with people not being able to access legal representation. There is a huge gap between people eligible for Legal Aid, and those who can afford to pay the ongoing costs of legal representation.

His Honour noted that unconscious or implicit bias in domestic violence has been largely ignored by the Courts. He seemed pleased to note that recently a bill was passed in California to allow for training around implicit bias for judges and attorneys, however this training was not mandatory and is not set to commence until 2021.

Implicit bias, also known as implicit social cognition, refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.  These biases, which encompass both positive and negative assessments, are activated involuntarily and without an individual’s awareness or intentional control. As they are inaccessible to our conscious mind, these biases are different from known biases that individuals may choose to conceal for the purposes of social or political correctness.  For this reason, implicit biases are not accessible through introspection.

The question ‘Why did she stay?’  is so often heard in the context of domestic violence situations, that we don’t see how heavily laden it is with implicit gender bias.  

Justice Eugene reflected on the fact that there is not much known about how to prevent implicit bias, but the first important step is to understand that it exists. Weare only just at the stage of acknowledging that it exists.

Harvard University has done mega studies on implicit bias, and have created an online test that can measure the degree to which, if any, you have an implicit bias in relation to a number of subjects, including between genders. The test for Australians can be accessed here:  https://implicit.harvard.edu/implicit/australia/takeatest.html

Whilst he did not proffer any solutions, he stressed heavily that mediation is very often a more appropriate forum for parenting matters, although noted that the current models of mediation are not necessarily well-positioned to manage the complex dynamics of family violence matters for safe outcomes. His opinion was that mediation is the future because it’s economical, helpful in terms of getting people to resolve their own disputes and it feels better when compared to having an adjudicator make decisions. He considered that when compared to judges, mediators may be more easily able to specialise in domestic violence, engage in more appropriate training and have more time to consider the issues.

Having said that, it is clear that just because a person leaves an abusive relationship, does not mean that the abusive and/or controlling behaviour stops, in fact sometimes it can make things worse. Shuffle mediation (where the parties are in separate rooms and the mediator moves between them) is not sufficient on its own to address the power imbalance that exists in these relationships. There is a need for highly skilled mediators with significant experiences and practical wisdom to manage this power imbalance effectively.

Mediators must constantly be involved in self-evaluation for evidence of implicit bias, and this necessarily must include opening oneself up for evaluation by others, given the unconscious nature of the bias.

One way to mitigate risk of implicit bias in mediators is to have co-mediators with diverse gender identification, and racial and cultural backgrounds. Discrimination can also be reduced via data collection, checklists and rubrics.

I’d love to hear from other professionals in the field, or people who have been in the family law system, as to how big an issue implicit bias is in outcomes to disputes involving domestic violence, and what practices there are than can mitigate the risks posed by implicit bias.