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.

5 responses to “Doing it backwards and in heels: a prescription for remedying implicit bias in ADR

  1. Diane,

    Thank you SO MUCH for this post – this call to action. I approached our local women’s lawyers organization today – the 90-year old Women Lawyers of Los Angeles – offering to help create and promote a Women in ADR Committee there. The response was inviting and I hope to be able to comment on progress made in the near future. We should, as you suggest here, join forces with all organizations for which diversity and inclusivity are important goals. This is not simply an issue affecting ADR professionals – it is also a justice issue. Some women activists see nothing short of a conspiracy to move the weakest and most vulnerable members of society out of a justice system that has become far more diverse in the past 20 years and into a system of private arbitration and mediation that remains in the hands of white men. Some academics have suggested that mediation, for instance, coerces women to accept harmony over justice. This is not only a challenge to the justice system, it is a serious challenge to the legitimacy of ADR itself. In this context, inclusivity in ADR goes beyond the well-being of its practitioners, to the viability and respect of ADR itself, not to mention the even-handed and non-discriminatory treatment of those whose disputes are being decided.

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  4. I’m in total agreement that there has been an unspoken prejudice against women ADR professionals for as long as I’ve been a lawyer. It wasn’t enough that some of us had to break the ice and be the only “woman trial lawyer” in the firm. Now, we have to be the only “woman mediator” or the one who is overlooked because of being female. I think this started with the same old boys network that kept women from getting good jobs as lawyers for so many years. The fellas wanted to keep it among themselves: they referred to one another, they stuck to the same guys they’d done business with in the past, and they just didn’t think about gender balance or even how a woman in the mediator role might be an advantage for some participants. What’s different now is that some of us have been around longer than the guys. Some of us have our own referral networks. Some of us are even better at dealing with certain situations in dispute resolution than our male counterparts. Crying female litigants, anyone? How do the boys handle that one? Ignore it, of course.
    What needs to change here is the inertia. What also needs to happen is a raising of consciousness, as in the days when the excuse for not hiring women in law firms was, “we just can’t find any qualified women to do the job”. Get over it, guys. We’re here to stay and some of us are really, really good at resolving conflicts. We’ve been doing it all our lives. And unlike some of our male counterparts, communication skills are not new news or some great revelation. We’re notoriously better at dealing with emotion than lots of men will ever be. I’m with Diane. What are ya gonna do about it, guys?

  5. Vickie, I’m the one who should be thanking you. You’ve really got things stirred up. And it is most certainly a justice issue.

    Carolyn, I’m glad to hear from you. Gender bias is real and it’s out there; your own experience stands as testimony. Sounds like you’ve been there, in the trenches, seeing the battle up close. From my early days as an attorney I saw it first-hand, starting with the male attorney who asked me during a law school job interview how I expected to be a good mother to my four-year-old son if I worked full-time as a lawyer (as if he’d have ever dared to ask a man the same question). You just can’t make this stuff up.

    I will say though that I don’t agree that women corner the market on communication skills or emotional intelligence; I’ve met professional women who lack them and also men who possess both in abundance – I know, I’ve raised a son who does. Generalizations and stereotyping serve none of us well. I share your anger and your frustration, but I say it’s time we laid to rest these persistent myths about gender-based attributes and focus instead on ensuring that all of us – women and men – have equal access to business opportunities and professional respect.

    So let’s claim common cause on this issue and pledge to do battle together – I’d be honored to fight with a fierce warrior like you at my side. Thanks again, Carolyn.