Category Archives: Gender Matters

Top ADR site Mediate.com adds resources on gender

Premier dispute resolution web site Mediate.com has demonstrated its support for raising awareness of gender bias in ADR. Showing leadership and its commitment to social justice issues, Mediate.com has created a new section on gender, as well as a page on gender bias links.  This is just one more reason among many to visit Mediate.com, the top web site for news, information, and resources on ADR and negotiation.

Other features that make this site outstanding include:

To my good friends at Mediate.com, thank you as always for your support.

Women bloggers proclaim National Women's History Month

Now, therefore, be it resolved by the Settle It Now Negotiation Blog, Mediation Channel, and the Blogs of all other women who are making and recording the history of the United States of America every working day, that March is designated as Women’s History Month. Every woman blogger and every male blogger whose life has been enriched by the presence of women in it is requested to issue a proclamation each March, calling upon their fellow bloggers to observe March as Women’s History Month with appropriate programs, ceremonies, and activities.

This resolution, calling upon “the people of the United States to observe March as Women’s History Month with appropriate programs, ceremonies, and activities” was passed by Congress in 1987 and successive years since then.  For more information about the origin of National Women’s History Month, or the activities of the National Women’s History Project, visit the National Women’s History Project.

This blog is celebrating National Women’s History Month by drawing attention to a series of posts on implicit gender bias in ADR.  The first two posts are written by me, and the subsequent five by my colleague, commercial mediator and author Victoria Pynchon:

Victoria Pynchon’s series on gender and bias:

Doing it backwards and in heels: a prescription for remedying implicit bias in ADR

Yesterday I pointed readers to an electrifying series by commercial mediator and arbitrator, Victoria Pynchon, which rips the lid off the ADR profession’s secret and unacknowledged shame: the absence of women and minorities from the prestigious ADR panels:

Not content to merely name the problem, my colleague today proposes solutions in “Combatting Implicit Gender Bias in ADR“.

Turning to Americans for American Values for ideas, Pynchon identifies the cure, a detailed action plan, which you can read in her post.  It’s going to take strong medicine to cure what ails us.

It takes guts to do what she Pynchon has done. She warns readers “that the topic of implicit gender bias is ‘toxic'”,with the potential of poisoning her market against her and costing her opportunities. Her post stands as a challenge to other women – and men, too – in ADR to break the silence and speak out. In solidarity, I stand shoulder to shoulder with my colleague on the West Coast.  I issue a call to arms of my own:

It’s time for ADR membership organizations to make the vanquishing of implicit bias a local and national priority – and actually do something about it. The ABA Section on Dispute Resolution has a diversity committee, but it has apparently posted nothing new on its site in two years. This is also a committee limited in size with membership by appointment only. How about opening it up to those of us out here hungry for change and ready to act? The Association for Conflict Resolution has a diversity committee as well – what is it doing right now to actively battle implicit bias and improve access to business opportunities for all ADR professionals? What about the numerous regional and state associations for ADR professionals? NE-ACR? SCMA? TAM? This problem affects your membership – what will you do to make a difference? State bar associations with ADR committees, where are you on this? Exert your influence. And let the rest of know what needs to be done so we can roll up our sleeves and get to work.

There’s been time enough to talk. It’s time at last to do.

Diversity, bias, gender, and race in ADR: a hard fight to level the playing field

Blind justiceAs I was getting ready for the start of the mediation training I was teaching, one of the participants, just arrived, approached me to tell me to get him a cup of coffee. Despite my power suit and the flip chart markers in my hand, he had mistaken the lead trainer for a member of the support staff.

If you think that this is an isolated incident in the life of an ADR professional who happens to be a woman, think again. Challenge yourself by reading commercial mediator Victoria Pynchon’s gutsy series on gender, race, and diversity in the ADR profession:

Negotiating Prejudice at U.C. San Diego

Negotiating Gender: Why So Few Women Neutrals?

Update on Gender Diversity in the Judiciary and in ADR

Then do as Vickie suggests and take the awareness-raising tests at Project Implicit, an ongoing research project inquiring into the implicit biases that affect our judgment. What associations do you draw about identity, capability, and role?

The log in your eye: eliminating gender bias in mediator performance evaluations

evaluating mediators without biasThe hot-button issue of mediator credentialing and credentialing seems to be on the minds of many folks in the ADR field these days. It has generated discussion, here and on other blogs (including Tammy Lenski’s, Vickie Pynchon’s, F. Peter Phillips’s, and Philip Loree’s).

Although I have not ruled out my support entirely for public credentialing for mediators in private practice, I have concerns aplenty not only about the wisdom and necessity of such schemes, but also about the challenges in establishing workable and meaningful ones – concerns which I would need to see fully addressed before I’d give my thumbs up.

Public credentialing of mediators will necessarily involve some kind of evaluation process – which raises a whole host of vexing questions. Among the many that I anticipate is one that particularly troubles me: given the realities of implicit bias, and the difficulties still facing women and minorities in gaining visibility in the upper reaches of our field, what would be done to ensure that any evaluation of mediators is free from it?

While sorting through the email that piled up while I was away on vacation during the first 10 days in August, I came across a message from the ABA Commission on Women in the Profession announcing that the latest issue of the electronic version of Perspectives, their quarterly magazine, was now available. It got me thinking. In that issue is an article by employment attorney Consuela Pinto, “Eliminating Barriers to Women’s Advancement: Focus on the Performance Evaluation Process“.

Emphasizing the importance of awareness-raising, Pinto sets out her recommendations for creating a bias-free evaluation process – recommendations that may transfer readily to a very different profession, mediation. I particularly like Pinto’s tips for evaluators:

  • Get educated about gender bias and examine your own biases.
  • Base your comments on actual performance and not potential.
  • Comment only on performance during the period under review.
  • Base your assessment on factual examples of behavior.
  • Weigh individual competencies similarly for all evaluatees regardless of gender.
  • Avoid using derogatory, disrespectful, or overtly biased comments.
  • Avoid basing comments or scores on the evaluatee’s adherence or failure to adhere to traditional gender stereotypes.
  • Review completed evaluations for consistency and objectivity.

Photo credit: Dominik Gwarek.

Lawyers are from Mars, clients from Venus: differing perceptions of mediation documented in new book

lawyers and their clients inhabit parallel worldsAfter attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled  “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.

The June 2009 newsletter of the Resolution Systems Institute is out and includes a review of a recent book (PDF), Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, by Dr. Tamara Relis, a British Academy Research Fellow in the Law Department of the London School of Economics and Political Science.  Relis’s book describes a vast perceptual gulf between lawyer and client, who hold opposing views and expectations of mediation. From the review:

Relis uses quotes effectively to demonstrate the parallel worlds lawyers and parties inhabit. Moving chronologically from parties’ aims in litigation through their experiences with mediation, the quotes show that lawyers’ and clients’ views and experiences were often completely different. When asked what the plaintiffs wanted from litigation, lawyers unanimously stated it was entirely, or primarily, money. Plaintiffs, on the other hand, discussed a need for explanation, admission of fault by the doctor and/or hospital, and apology. Money was not their focus. These parallel worlds had a significant impact on the cases, the mediations and the resolutions because lawyers maintained control…

Relis documents striking differences not only between lawyers and clients but also between men and women:

Interviews also indicated gender differences among lawyers and parties in perspective and approach to mediation, and among mediators in their ability to control the lawyers. Female lawyers were more likely to see merit in the emotional aspect of mediation. Female parties were more likely to feel trepidation about the mediation, to be more concerned about how their statements were perceived, to be influenced by mediators’ statements and behavior, and to be less likely to talk during the mediation. Female mediators were viewed by the parties as being less in control of the lawyers and the mediation.

An excerpt from the first chapter is available for downloading.

Dr. Relis is also the author of an earlier work, “Consequences of Power,” an article that appeared in Harvard Negotiation Law Review and  available as a PDF download at the Social Science Research Network.  It describes a disconnect between attorneys’ objectives and those of their clients and shows that the intentions of plaintiffs and defendants in mediation are more closely aligned than one might suppose–and  all too often thwarted in their desire to communicate with each other.

I hope that my brothers and sisters at the bar are listening.

Gorilla in the room: the dividing lines in mediation practice

the gorilla at the mediation tableLast week’s annual spring meeting of the ABA Section on Dispute Resolution was endowed with an optimistic title: “ADR: Building Bridges to a Better Society”. Despite the noble sentiment it carried, something else – unwelcome and ignored – was present.

It was there in the plenary meetings and in the sessions I sat in on. No one explicitly named it, but plainly there it sat: the dividing line that separates one practitioner from the other. It was there when the famous scholar declared that cases involving legal issues are best mediated by attorneys only. It was there in one of the workshops when a facilitative mediator declared an evaluative intervention to be “wrong” and “bad mediation”.  It was there when a law professor dismissed lawyers – the original dispute resolvers – as flunkies and functionaries of a heartless judicial system. It’s the line that runs straight between attorneys who mediate and mediators who don’t practice law. It’s the line that separates facilitative mediators from mediators who evaluate. It’s the line between theory and praxis. We ADR professionals pay lip service to the values of community and collaborative effort; but the reality is otherwise for those willing to look more closely.

Other lines divide us, too, along the borders of gender and race. Women and people of color remain excluded from premier ADR panels. Women, who face gender-specific hurdles when it comes to negotiation anyway, confront particular disadvantages when it comes to the selection of mediators who assist at negotiations. Meanwhile, in the recent issue of the ABA Dispute Resolution magazine, dedicated to diversity, and which arrived the day before I departed for the spring meeting in New York, the concluding page of one article (a critical look at the lack of diversity in ADR’s upper echelons) faced an advertisement for a prestigious training organization with head shots of trainers who were white and male, with only a single woman represented among them. Yet still at the conference I heard an honored guest speaker look back on a moment in history when women faced barriers in ADR as if that time belonged solely to a long-ago past and not to the present.

It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.

So, in the words of Joan Rivers, and mediators everywhere:

Can we talk?

Negotiating disability

barriers to negotiationLast summer an online magazine for entrepreneurial women elevated form over substance when it advised its audience to accessorize for that big negotiation and mimic the “look” of the person on the other side of the table. I responded with a post criticizing the undue focus on physical appearance:

Behind it lurks a whole array of social justice issues uncomfortable to discuss but urgent for us to face — women and aging, youth and beauty, race and skin color, antipathy toward the obese, prejudice against those with disabilities or deformities.

In urging women to “mimic” the look of their bargaining counterpart, how would the author of this article counsel the 60-year-old woman negotiating with her 30-year-old prospective boss? Or a woman of color negotiating in a predominately white workplace? Or a woman wearing a hijab? Or a woman with a face disfigured in a car crash, negotiating with people who are unscarred and whole?

We are told not to judge a book by its cover yet repeatedly we do nonetheless, reducing others to something less than the sum of their parts. We make snap judgments, too often wrong ones, on the basis of physical appearance. We mistake mere emblems of authority — the business suit or the white coat — for actual authority. We rely on beauty as a proxy for intelligence, social skills, and talent.  And our discomfort with differences can lead those who are not disabled to stigmatize and shun those who are.

Consider the recent case of BBC children’s television host Cerrie Burnell. The BBC’s decision to cast Burnell, who has only one hand, sparked strong reaction from some parents who claimed that her disability would frighten children.

The BBC made the decision to hire Burnell; others obviously would not have. For those with disabilities not all barriers are made of concrete or stone. And some still block access to a seat at the negotiating table.

(Hat tip @NaropaPeace.)

Girl Scouts get to yes with lessons in negotiating

teaching girls to negotiateRecognizing how important the acquisition of negotiation skills is for women for educational and career advancement, Carnegie Mellon University’s Program for Research and Outreach on Gender Equity in Society (PROGRESS) has developed a negotiation badge to be awarded to Girl Scouts in fourth through sixth grade who have participated in a curriculum that teaches them negotiation and problem-solving skills.

This program not only teaches girls how to ask for what they need and negotiate win-win agreements, it also encourages them to pass along what they have learned to others:

Now that you have learned about negotiation, share your knowledge with a friend, sibling, or relative. Teach them the steps to negotiation, and the importance of approach, preparation, and practice.

You can download the activity book (in PDF) from the PROGRESS web site.

You go, girls.

Federal law would create negotiation training programs for women and girls

Negotiation justice for womenOn January 9, 2009, the U.S. House of Representatives approved two bills that would remedy paycheck discrimination.  One, the Paycheck Fairness Act, would eliminate gender-based pay disparities.

What is especially significant about this Act is that it would establish a grant program to fund training for women and girls in negotiation skills. Section Five of the Act provides:

An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program that empowers girls and women. The training provided through the program shall help girls and women strengthen their negotiation skills to allow the girls and women to obtain higher salaries and the best compensation packages possible for themselves.

Congress has at last recognized and aims to remedy a problem that women themselves have long been aware of: that social barriers prevent women from negotiating effectively.

(Hat tip to Concurring Opinions.)