DDRIOC Publications
WHY PUT PEOPLE INTO THE BOXES WE THINK OUTSIDE OF?
Written by Marc Bhalla, LL.M. (DR), C.Med, C.Arb
From the Disney-Pixar film Turning Red, I have a sweatshirt that says “I Accept All Labels” across the front of it.¹ The garment is not in my usual style but the irony of it being categorized as women’s clothing sold me on purchasing it for my male-identifying self. While it offers a sentiment of inclusion that I embrace, I also struggle with labels. Dividing people into categories could miss who individuals really are. The approach does not strike me as aligned with the field of dispute resolution - a field that embraces empathy, understanding and offers the chance to feel heard. After all, it is difficult to “fit the forum to the fuss” without appreciating the people who all the fuss is about. Tick the box forms that ask people to categorize themselves by pre-defined gender, ethnicity and otherwise risk the projection of label-related generalities onto individuals experiencing conflict as they try to address it.²
As an adjudicator, I do not require the presentation of gender by those who come before me, nor do I assume it. While others feel that the incorporation of gendered, formal salutations is respectful, I question how they come to be formed and why they are needed. Like the old “with all due respect” line, they can also be respectful only superficially. In fact, I recently came across a court decision where a judge put down a lawyer involved in a proceeding and misgendered them while doing so. The judge used a gendered, formal salutation to refer to the lawyer that did not align with the lawyer’s gender identity - adding only further insult to injury.³
Please consider…
Should a party before a decision maker or mediator be required to label themselves?
Does a decision maker or mediator impose labels upon those who appear before them in any event – consciously or unconsciously – based on related cues they are presented with?
How might being labelled impact the experience of those pursuing conflict resolution?
Think these questions through and you start to grapple with concerns related to bias, access to justice and the wider, negative impact of systemic “norms” and traditional practices. (Keep in mind also that a shared cultural understanding of what various labels mean is required. Must such understanding be a pre-requisite to addressing conflict?)
In the publicly released decisions I render as a member of an administrative tribunal, I have developed a practice of going out of my way not to reveal the gender identity of those who come before me, unless relevant to the issues I decide.⁴ I was once asked by a colleague how a party I referred to as “they” in my decision identified themselves. My response was that I did not know. I did not ask and they did not offer. For my role in the proceeding, it did not matter. Even in the context of a text-based hearing, this response was considered baffling. Society tends to long to place labels onto people.⁵
Along with this societal expectation, there is another side to this consideration. One that leads to me wearing my “ladies” sweatshirt with pride. Putting aside labels risks lacking appreciation of how meaningful they can be. A label can speak very personally to one’s identity. I have found this to be particularly the case when a labelled group has overcome oppression or if it has been a journey for one to embrace their label. Ignoring someone’s labels could make them feel invisible or that who they are is not being taken into account in the dispute resolution process they are participating in. We do not want that.
Consider an Indigenous victim of Canada’s residential school system.⁶ For generations, attempts were made to extinguish their culture. It makes sense for them to be proud of who they are and to deeply embrace their heritage as their identity as a result. Having who they are acknowledged may fairly be a requirement for any dispute resolution process they are involved in to be effective. This sentiment applies beyond Indigenous identities as well.
So, how do we reconcile the potential harm that comes with ticking boxes and the need for some to present their labels?
I think this is a question that dispute resolution practitioners should reflect upon. As our processes can be flexible and customized to individuals and the circumstances they find themselves in, we should be able to adapt our practices to appreciate the identities of each person we work with – however and to whatever extent they wish to present them to us. Let parties present themselves as they wish, without a limited number of pre-set selection options, an ostracizing catch-all category or an expectation that they must offer up their labels. Leave it entirely to them.
In practice, I have found that offering parties this type of self-selection can lead to interesting dynamics. For example, in mediation, I have experienced preference variance between parties as to how formally I address them. This has led to me referring to one party in a formal manner and another informally in joint session – altering my degree of formality by who I was speaking to, in a manner not unlike actor Oscar Isaac’s performance in Moon Knight when rotating entities possess his body, each with a different demeanor and accent.⁷ Nevertheless, in my experience, the self-directed approach adds comfort to dispute resolution process participants because they control which labels they present.
As for us process facilitators, it is impossible to know everything those who come before us to address conflict have experienced or what has gone into their discovery of who they are. It is unwise to make assumptions. If we are open to letting parties guide us, letting go of required box ticking, we can better foster outside the box thinking through offering comfort, understanding and acceptance. Let’s all accept all labels.
¹ Turning Red. Dir. Domee Shi. Walt Disney Pictures, Pixar Animation Studios, 2022. Film.
² They can also be a challenge for biracial people, like myself, to complete.
³ I am withholding reference to the case at this time, in part, as I believe this is a wider phenomenon than a single incident but will share that, in the instance discussed, it seems the judge misgendered the lawyer based upon their first name rather than any physical or auditory presentation and related attributes.
⁴ I am a member of the Condominium Authority Tribunal of Ontario and am sharing my views here alone, not those of the Condominium Authority of Ontario or the Condominium Authority Tribunal.
⁵ Marc A Bhalla, Gender Identity & Text-Based, Online Mediation, 2019-2020 6 McGill Journal of Dispute Resolution 78, 2019 CanLIIDocs 4454 at 72, online <https://canlii.ca/t/t2xr>, [perma.cc/PW7K-VUNF].
⁶ My definition of an Indigenous victim for the purpose of this paper is anyone who themselves, has family or knows someone who attended a residential school and feels impacted as a result. It is generally accepted that the residential school system did much harm and intended to eliminate Indigenous culture.
⁷ “The Friendly Type”, Moon Knight. Disney+. Mohamed Diab, Dir. Season 1, Episode 3. Original aired April 13, 2022. Television.
