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Latest News and Views of Walther Family Law

You just took the Stoop Task. The difficulty you experienced is caused by cognitive conflict:  Information normally linked in your brain’s neural circuitry must be disassociated to correctly perform the task.

Our brains harbor all sorts of links that we are not consciously aware of. These links are essential to us.  They are what allow us to make sense of our world, quickly and efficiently, without having to puzzle every last thing out.   We form these neural links over time, adding information with each new exposure, be it from personal experience or information we pick up from ambient cultural influences. We don’t control what links we’ve formed, nor are we consciously aware of them.

Problems can occur when the brain has formed a link associating a certain characteristic with a specific brain group that is not accurate – either for the group or for an individual in the group. Does our brain associate “cuddly” with “cats”? If so, we may be in for a nasty surprise if we try to pick up a stray.

Over the last decade, researchers at Harvard conducting the Implicit Association Test (IAT) have demonstrated that most people have an implicit and unconscious bias against members of traditionally disadvantaged social groups. Further, research confirms that our actions are often informed by our unconscious biases.

The pervasiveness of implicit bias in employment, medical treatment and the judicial system has been well documented, but it doesn’t take a lot of imagination to see how it could impact most areas of Family Law – everything from adoption to the gender role expectations of newlyweds.

When these biases become problematic, especially when they result in prejudicial and harmful treatment, we need to take steps to address them.  But by definition, we are unaware of our implicit biases, so how are we to correct for them? The NCSC has developed a set of guidelines to help those of us working in the judicial system to do just that. Key points include:

  • Be aware that we are all functioning from implicit biases (visit Harvard’s Implicit Bias to test yours)
  • When called on to make a decision that will affect a member of another group, slow down your decision making and make a conscious effort to recruit your deliberate, effortful, higher level cognitive processing.

Implicit bias can only function if we’re not paying attention.

If you are interested in finding out more about implicit bias in our justice system, I strongly suggest reading the appendices of the NCSC report Helping Courts Address Implicit Bias: Resources for Education