Neutralizing Your Own Implicit Biases to Avoid Conflict and Increase Flexibility

Since lawyers deal with every kind of person in matters requiring impartiality (those involving legal rights, fairness and social justice), we acknowledge there is no place for bias. We are all very familiar with the bigot's open, unapologetic contempt for individuals based on their membership in a group defined by race, ethnicity, religion, disability, age, gender and sexual orientation. This type of bias is explicit, because it is conscious. The bigot is fully aware of his view that some groups of people are inferior and he will vigorously defend it.

Bigotry of this kind flourished when the legal-political climate allowed adults to teach children that some groups of people were more capable, more valuable, more virtuous, more deserving of respect and more entitled to the good things in life than others.
Consistent with that climate, the socio-economic order favored some groups and disfavored others. The developments of the last fifty years has substantially changed how we live, including who can go to law school, who can rise within the ranks of a law firm, who lawyers can represent in court, and so forth.

Is bias based on stereotypes of race, gender, age and national origin still a problem for lawyers today? Yes, but not the conscious kind. According to social psychologist Mahzarin Banaji, Ph.D. of Harvard University, implicit bias based on racial and other stereotypes is universal. Implicit bias is unconscious. It dwells within the minds of even the most liberal and progressive lawyers. It operates in a subtle and insidious fashion. Dr. Banaji developed several different tests to uncover its existence. The most famous one is where you push a button to endorse an adjective paired with a characteristically white or black name. Whites and blacks were both more quick (by hundredths of a millisecond) to endorse negative adjectives when a black sounding name appeared on the computer screen than when a white sounding name appeared.

Dr. Banaji, and others in her field, say that implicit bias is a feature of human evolution. In the days of cave people, survival meant forming close social bonds with your immediate family and a small group of relatives; cooperating with them; and sticking to them. This wired the brains of developing humans to trust and feel safe with people who looked, sounded and acted like them. It also wired their brains to see difference as a grounds for suspicion and fear, which promoted aggression against outsiders.
Dr. Banaji and her colleagues say we can learn to spot our implicit bias and learn to inhibit it. Laughing at a racist or sexist joke and forwarding the e-mail to your friends to laugh at with you is not harmless fun, but serves to perpetuate implicit bias. Meditation is one way to overcome implicit bias by widening your circle of compassion.

Another type of bias wired into the brains of our ancestors was the feeling of being right when having to make a decision or adopt an opinion. Without some trust in our gut instincts we couldn't cross the street to our office or buy lunch, since each action involves a number of choices. The problem in a sophisticated profession like law is that the issues are highly complex, they involve many variables and they are susceptible of many different conclusions. The lawyer's feeling of certainty that he is right in this environment of ambiguity can produce rigidity and defensiveness. Anyone who develops opinions for a living is at risk of being terribly wrong and needs some a bit of humility and flexibility. Cognitive neuroscientists who track this sort of thing have found that TV's political pundits and print journalism's highly esteemed economic forecasters are wrong more than 50% of the time.

Where does the feeling of being certain you're right come from and why is it so strong? In On Being Certain, neurologist Robert Burton, M.D. says the feeling of being certain comes from a hidden layer of the brain where the operation of neuronal circuitry is beneath the level of consciousness. Thus we experience the arrival of this feeling much like the mental sensations of heat, cold, pain, hunger, thirst or lust, which are undeniable. Believing you're right is pleasurable. Dr. Burton says this harks back to our reptilian ancestors. When they got hungry and saw prey, their brains produced a small squirt of dopamine to focus attention for the chase and a much bigger squirt of dopamine once the prey was caught to produce sensations of relief and pleasure. When we are researching a legal point we undergo the same process, and once we have the answer we are certain is right, we get that big squirt of pleasure producing dopamine.

Neuroscientists who study what happens to the brain in the face of opposition say that having your views opposed activates different parts of brain and different neurotransmitters. The outcome of opposition is not pleasure, but stress, confusion and anxiety. Wanting to avoid those unpleasant feelings and wanting to hold onto the comfort of being certain can make us hammer opposing counsel to agree with us even when that obviously won't happen.

If we are all rational beings, how is that we can have such different opinions while each being certain we're right? Here Dr. Burton is at his most provocative. He says that our unique genetic code wires the brains of individuals to be religious (or irreligious), to have (or not have) addictions, to take liberal (or conservative) political positions, to take (or not take) risks and so forth. Genes create tendencies not destiny. The environment in which one is raised, educated and mentored, and where one works, interacts with genetic tendencies to produce the behavior of the specific individual.

I wholeheartedly agree with Dr. Burton's position that we would all be better off if instead of saying I'm right and you're wrong, we could say something like, "Based on the information I have right now, my opinion about situation x is y, but I remain open to modifying my opinion should I receive new information."
How can we get there? One way is through the daily practice of meditation. Meditation calms reactivity and defensiveness and promotes mental flexibility. It helps loosen our attachment to some views and weaken our aversion to others. It makes us less judgmental about people simply for holding views that differ from our own.

Another technique is the "poles apart" exercise developed by clinical psychologist Marilyn Van Hecke, Ph.D., the author of Blind Spots, and leader of Open Arms seminars. She has her students study and interview people whose views strike them as incomprehensible, aburd and morally repellent. Examples of people who are poles apart are Palestinians vs. Israelis over the fate of occupied lands; scientists who use animals in research vs. animal rights activists who believe in the use of terror to eliminate the practice; or Christian fundamentalists vs. people who believe abortion should be legal, safe and available to all pregnant females who request it.

Dr. Van Hecke has found that her students are initially very afraid of the assignment, because they fear studying their ideological opposite will contaminate them and lead them to give up their values and adopt those of their enemy. What they eventually find, however, is that the people who hold the opposite views can be understood and even accepted as rational, without causing the student to give up his core values or his views.

All of us want to act in an unbiased, inclusive manner. All of us want to do the right thing ethically. All of us want to come to the right position after studying a legal point. None of us wants to be accused of bias, of unethical behavior or of being wrong on a legal point. Once we see that implicit bias and the feeling of certainty we're right are hardwired into our brains, we can laugh at ourselves and not be so defensive anymore. The urge to laugh at a racist or ethnic joke doesn't make us bad people. It is a manifestation of implicit bias we can inhibit. The tightening of our jaw, fists and gut, when another lawyer objects to our position is a manifestation of our mental sensation of certainty.
Maybe we're right and maybe not. Maybe there are a dozen different ways to look at the same problem that could lead to a more peaceful, expeditious and fruitful resolution. We cannot get there unless we recognize that no matter how smart we think we are, we are susceptible at all times of being wrong and of being tricked by our own mental sensation of certainty.