Negotiation Law Blog

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male.  I generally endeavor to steer clear of this topic because I, as a commercial mediator and arbitrator, have a market that is primarily composed of white men between the ages of 40 and 65. And I don't, of course, wish to offend my market.

(my online female ADR posse Stephanie West Allen, Gini Nelson - now practicing and blogging about Bankruptcy Law - and Diane Levin)

Recently, however, my all time favorite "old white man" (my husband) reported back from a training session on an arbitration panel whose name cannot be spoken that of 29 trainees, only two were women - and women of the type who give the old Astaire-Rogers joke "legs" - those who have done   everything Astaire did, but backwards and in heels.

This made me finally take a look at the composition of ADR panels.  What I found, at least in my own back yard, is that women, while under-represented, are likely fairly proportionally representative of the law school class years from which most neutrals are drawn, i.e., 1970 to 1990 with a tilt toward the earlier decades of the 70s and 80s.

Looking at the "Talk" Before We Examine the "Walk"

The American Arbitration Association (whose diversity we can neither assume nor refute given the absence of statistics on their panel membership) has the following to say about its commitment to diversity:

Our Shared Commitment to Diversity

Our integrity demands impartial and fair treatment of all people with whom we come in contact, regardless of gender, race, ethnicity, age, religion, sexual orientation, or other characterization. Our conflict management services put into practice our goal for the resolution of disputes between parties with different perspectives, experiences and backgrounds.

Because of the breadth of the AAA's work and the global reach of its services, we recognize the importance and contribution of a diverse work force, a diverse Roster of Neutrals, a diverse Board, and commit to respect and increase diversity in all our endeavors.

I recall that JAMS once had a diversity initiative, but I now find no mention of diversity in its Mission, Vision and Values Statement.  The JAMS Foundation appears to have funded one project that has diversity as its goal: it awarded $10,000 to Community Mediation Services in Jamaica, New York for its Intercultural Peacemaking Project for Youth "to help fund a program providing communication and conflict resolution training to youth from diverse cultural backgrounds and assisting them in becoming trainers of diversity and conflict resolution education for others."  It does not appear that JAMS has a diversity initiative for placing women, African-American or other under-represented "minorities" on its panel, nor even a statement of non-discrimination on its website.  If I'm wrong about this, I'd love to hear about it from a JAMS representative.

The International Institute for Conflict Prevention and Resolution, of which I am a member, has an active diversity committee, of which I am also a member, and is grappling with ways in which to increase the representation of under-represented "minorities."  We're making a concerted effort to address the problem and I send bouquets of early blooming parentheses )))((( to CPR in recognition of their commitment.

The Statistics Reveal the Problem

Despite the fact that my own law school class of 1980 was 50% women, the general national statistics at the time were that women comprised 33% of all law students graduating that year.  In the  thirty years that have passed since my own law school graduation, the percentage of U.S. women attorneys working remains less than their law school numbers in 1980, i.e., only 30% of the 1,104,766 practicing lawyers in the United States,  Even those numbers are misleading, however, for women neutrals, like me, who work in the commercial field (a field in which I labored as an attorney with hardly a hint of gender-discrimination for nearly a quarter of a century). 

Here's what the National Association of Women Lawyer's Annual 2009 Report on the status of women in the law has to say about women in positions of power at the type of firms that hire commercial mediators and arbitrators.

In 1980, 67% of law school graduates were men and 33% women. A decade later, by 1990, women had progressed to 43% of graduates. And by 2000, that number had increased to 48%.    For nearly two decades, women have started out in about equal numbers to men when they enter law firms as first year associates.

As steady as the increase has been for women entering the profession, that increase has not translated into staying power and advancement – rather there is a steady decrease of women at each higher position in firms. The impact? An ever decreasing source of women for partnership and leadership roles.

In the typical firm, women constitute 48% of first- and second-year associates, a percentage that approximates the law school population. By the seventh year, the ranks of women have dropped slightly to 45%.14  The gradual erosion of women heightens with seniority. On average, women constitute 34% of of-counsels, 27% of non-equity partners, and 16% of equity partners. This trend has not changed dramatically in a number of years despite the very substantial number of women law graduates who entered firms in the last 20 years.

In the typical one tier firm, where equity is the only form of partnership, 18% of equity partners are women. In two tier and mixed tier firms, by year ten, women comprise only 10% of equity partners. By year 15, women make up 17% of the equity partners and by year 25 it is 18%. The data suggest that not only are far fewer women than men achieving equity status, it takes women substantially longer to reach that goal.

Let's Take a Look at the Composition of the Most Successful ADR Panels

My panel, ADR Services, Inc. is owned not only by a woman, but by the hardest working women in ADR rock 'n roll, the indefatigable Lucie Barron.  Lucie does it backwards, in heels, while spinning 20 plates in the air.  It's exhausting just to watch her walk down the corridor!

ADR Services, Inc. has thirteen (rockin') women on its Southern California panel and 62 men -- 20% women.  JAMS has fourteen women to 61 male neutrals on its Los Angeles panel, close to 23% women.  Although both fall far short of the 33% women who occupied law school classes in 1980 when I graduated, no one should be surprised by these percentages given the fact that ADR neutrals are mostly drawn from law school classes between 1970 (when the percentage of women was ten percent and 1990 when the percentage of women was 43%, with most neutrals congregating at the older end of the spectrum).

How Consistently are Women Being Hired as Neutrals outside the "Pink Ghettos" of Family Law, Estates and Employment?

With no disrespect to my sisters laboring in the fields of family law, employment and trusts and estates, these fields have traditionally been associated with women because they are said to involve "a lot of emotion" whereas my field of practice - commercial litigation - has long functioned under the illusion that "reason" prevails over "emotion" (an illusion I've long said arises from the apparent belief that controlled rage is not an emotion).

Everyone who serves on an ADR panel knows that, while valuable, membership does not assure a steady stream of work.  If I had to make an educated guess (based on conversations with neutrals and discounting everyone's inflation of their own success) I'd say that far less than twenty percent of all ADR work was being done by the 20 percent of women on local ADR panels.  I'm not going to suggest that implicit bias or the paucity of women attorneys with power to make ADR decisions in the AmLaw 200 is solely to blame for this state of affairs.  I am, however, going to suggest that it plays a significant role in the choice of neutrals, a role which every male neutral I've spoken with denies and every female neutral I've spoken with confirms.

So Let's Look at Implicit Bias to Negative the Effect it May Be Having.

I'd be more than happy to learn that I'm wrong in this assumption -- lawyers - both men and women - tend to choose male neutrals over women neutrals based upon an implicit bias toward men and a misunderstanding about the power of mediation, i.e., that it's more about power than it is about influence.   I wish I had statistics to provide on this question and I urge any academic looking at ADR to make further study of diversity among the ranks of ADR practitioners -- an issue that should be a priority in the legal academic community as the U.S. justice system becomes more and more privatized.  In the meantime, take a look at mediator and negotiation trainer Diane Levin's posts on gender in ADR, including Disputant Perceptions of Gender: a Challenge for Women Who Mediate; Boys will be boys:  gender still an issue; Eliminating Gender Bias in Mediator Performance Evaluations; and Bias Hard to Detect in Ourselves.

Anecdotally I can tell you that 80 to 90% of the attorneys who hire me to mediate their litigated disputes are male.  I believe this has something to do with the fact that so few women survive the AmLaw200 race to partnership as explored in depth by Lauren Stiller Rikleen in her brilliant and comprehensive Ending the Gauntlet:  Removing Barriers to Women's Success in the Law. (my review of that book here).

Neutralizing My Own Implicit Bias

I've been engaged in a conscious effort to neutralize my own implicit gender bias since I began reading Ms. Magazine in 1972.  Yesterday, while writing the post on racism at my alma mater U.C. San Diego, I linked to the Harvard Implicit Bias Project and suggested that my readers take one or more of the Implicit Association Tests.  I took the Gender - Career Implicit Association Test.  According to Project Implicit, my data "suggest[ed] a moderate association of Male with Career and Female with Family compared to Female with Career and Male with Family."  Here's the chart of all responses to date:

I'm right there in the majority of all association test takers - moderately associating women with family and men with career.  This is my result despite the fact that I never had children; consciously associate myself far more strongly with career than I do with family; and, was actively engaged in the "second wave" women's movement beginning in my early twenties ('73) and ending when I started law school ('77). 

Neutralizing Your Own Implicit Bias to Avoid Conflict and Increase Flexibility

This is the article all test takers are directed to after getting their results (link immediately above) and here's the bottom line from that article:

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.

In Twenty-Five Years of Commercial Legal Practice, I Never Hired a Woman Neutral

As Project Implicit points out in referring test takers to Cutting Edge Law:

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.

I know I'm biased and I work against it all I can.  I was raised in the 1950's and 1960's, before and during the great civil rights movements of the latter half of the twentieth century.  Women were wives and mothers.  Few of them worked.  Dads were fathers, if at all, on special week-end days only.  Dads worked.  Mothers baked.  Blacks (we called them Negroes) lived in another part of town.  I never had a Black classmate until 1966 when I started high school.  Mark, whose last name I forget, became captain of the football team.  His father was a physician.  Mine sold life insurance door to door until he went to night law school after leaving my mom and marrying someone with a University degree.  No one in my family had attended, let alone graduated from, University.

I think of doctors and lawyers as male.  Still.  How frustrating is that?  And yet, I am finally improving.  Among the handful of neutrals I recommend there are now as many women as there are men.  And I have high hopes for the generations that follow mine - generations in which women were in the work force; where dads parented as much as moms; and, where professional accomplishment for women was as expected as it is for men.

The only way in which implicit bias will prevail is if we deny its existence.  By way of this lengthy post, I am suggesting that the paucity of women (to my own surprise) in ADR ranks is more historic artifact than it is the result of implicit bias.  I do, however, believe more women in ADR's ranks would be working more often in the absence of implicit bias.  I urge my readers to go to Project Implicit, take a few of their association tests and judge for yourselves whether unconscious biases are playing a part in driving your decisions.

As my book nears completion (A is for Asshole, the Grownup's ABC's of Conflict Resolution) I have more and more discussions about its theme, i.e., that "assholes" (and bullies and enemies) are not people but behaviors and not one person but two.

I've had grown men follow me down the hallway at my mediation home - ADR Services in Century City -  to convince me just how wrong I am about this.  Earlier this week, in yet another conversation on this topic with one of my oldest and most pacific attorney friends, I realized that I needed to differentiate between "assholes" with personality disorders (sociopaths - Tony Soprano;  borderlines - Burton and Taylor in Who's Afraid of Virginia Woolf; and, narcissists - film noir femme fatales such as Barbara Stanwyck in  Double Indemnity) on the one hand and the "rest of us" on the other.  

It's "the rest of us" that the ABC's of Conflict Resolution is about, i.e., those of us who are capable of behaving like an asshole without being one, as well as we who can unwittingly create, exacerbate or fail to counteract asshole-ishness in others.  

Our Part in It

When someone cuts in front of us in line; drives 50 miles an hour through a school zone; behaves boorishly at a party; or, shouts at workplace underlings, is there anyone to "blame" other than the asshole?  Without giving away the revised version of the first chapter, let me first say that we are all blinded to the part we play in disputes by cognitive biases.  Those biases include: 

• fundamental attribution error (over-attributing intention and under-attributing circumstance to another's harm-causing behavior while over-attributing circumstance and under-attributing intention to our own harm-causing behavior /1;
• clustering illusion (seeing patterns where none exist); and,
• confirmation bias (selecting from a vast amount of data only that which confirms our pre-existing opinions)

These biases play a major role in our perception whether "the other guy" is an "asshole" because the central element of assholishness is intentionality. /2 If I told you that the man who cut in line did so in an emergency room because his daughter was bleeding to death on the sidewalk; that the motorist going 50 miles an hour was being chased by gun-toting mafiosi; that the apparent "boor" was suffering from the sudden onset of a debilitating physical condition; or, that the workplace bully was urging his co-workers to leave a burning building, you wouldn't call any of these characters assholes.

Mistakes about the intentions and motivations of our fellows, as well as the constraints under which they are working, are so common in the litigated disputes I mediate that I've been forced to acknowledge just how much of other people's behavior is colored by my untested assumptions.  It naturally follows that my part in disputes has loomed much larger in its resolution than it ever did before.  When a fight is poised to break out between me and my husband, for instance, I will much more readily ask myself whether I made enough inquiries to determine the source of his distressing behavior; whether I've been afraid to start a conversation with him about the matter at hand because might prove "difficult" or who reveal a weakness in my own character or error in my own judgment; whether I'm taking something personally that's not directed at me; whether I'm nursing a grudge long after he's forgotten the event that cause if; and, whether there's a cry for help beneath his accusation.

I have friends in 12-step programs who tell me that "the program's" recommended practice is to keep their own side of the street clean and leave the other guy's faults to himself.  They quote me chapter and verse from their "Big Book":

 Putting out of our minds the wrongs others had done, we resolutely looked for our own mistakes. Where had we been selfish, dis­ honest, self-seeking and frightened? Though a situa­tion had not been entirely our fault, we tried to disregard the other person involved entirely. Where were we to blame? The inventory was ours, not the other man’s. When we saw our faults we listed them. We placed them before us in black and white. We admitted our wrongs honestly and were willing to set these matters straight.

What then do we contribute to the creation of an asshole?  First, we judge the behavior of others tending to believe - without sufficient evidence --  that their injury-causing behavior was meant to harm us.  Opposing counsel filed his ex parte application at 5:00 on the evening before Thanksgiving for the purpose of making our lives miserable.  Second, we see patterns where none exist.  The practice group leader's decision to take associate X to a client meeting following associate X's assignment to a high profile case, means that associate X is being groomed for partner while you are being marginalized.  Finally, we believe our own B.S., which prevents us from accurately assessing the true situation so that we can deal with it effectively.   

And that's what I mean when I say an "asshole" is not a person but a behavior and not one person but two.

_______________

1/  That we do this even with animals whose minds we can't possibly know was brought into sharp relief this week as pundits pondered whether a killer whale "meant" to kill his trainer or was only "playing" with her.

2/  The social scientists have recently discovered that we actually feel more physical pain when we believe has intentionally struck us than accidentally caused us harm.

Helping law students master the skills necessary to mediate civil harassment cases last week put me in mind of two recent items -- the e-Discovery Dystopia video posted over at Commercial ADR ( The Horror, The Horror); and, Jared Lanier's new book, You Are Not a Gadget:  a Manifesto excerpted this month in Harper's.

The Dystopia of e-Discovery lies at the bottom of the slippery slope created by the internet information avalanche as it intersects with loose rules for discovery ("reasonably calculated to lead to the discovery of admissible evidence") crafted when a few Bekins boxes of documents might relate to the subject matter of the action - a time before I personally became engaged in litigation involving millions of documents that were reviewed by associates and paralegals for at least a year before being shipped to the Philipines for coding by date, subject matter, author and recipient and then uploaded to a data base (the mid-90s).

You Are Not a Gadget (as you'll see below) refers to the international "project" of reducing qualities (primarily personality and desire) to quantities for the ultimate purpose of selling one another goods and services.  The reductive dimensions of this on-going process struck me as the way in which we are now training law students to "handle" the "facts" to which they'll "apply the law" as if they were going to spend their professional lives taking and re-taking the Bar Exam rather than helping their clients secure a relatively predictable future (the transactional lawyers) or resolve conflict without the bitter aftertaste of injustice in their mouths (litigators).

Those are the thoughts that were occupying me when I visited a local law school mediation clinic to guide a hypothetical mediation of a civil harassment action in which one or both of the parties were seeking restraining orders. I found the exercise slightly distressing.  After a year and a half of law school, the student mediator was already busily suppressing and avoiding conflict, pushing back against the parties’ attempts to tell their  conflict story -- one sufficiently emotional that they were willing to ask a Judge to enter an Order that would make either or both of them subject to arrest by the Los Angeles Police if violated.

Pause for a moment here to imagine the force of the anger and fear that would bring people to such a pass.

What distressed me was the degree of subtle coercion exercised by the student mediator to “move past” the past and “focus” on the future.  Because the students’ “purpose” in the Los Angeles Superior Court is to help the Judge avoid making a decision (charitably called "clearing the calendar") their efforts were focused on achieving an a restraining agreement rather than a restraining order or, alternatively, negotiating an agreement that included a stipulated restraining order.

The students did attempt to negotiate a “deal” that would resolve disputes outside the Court’s jurisdiction (loans of money; theft; a dispute over the terms of one party’s sub-tenancy; and, recompense for the physical violence at the heart of the request for the restraining order).  Their efforts to do so were, however, repeatedly derailed by the parties’ attempt to justify their own behavior; and, blame the other for causing the losses sustained.

Unable to obtain compliance with the admonitions to bury the past and focus on the future within the first few minutes of the hypothetical mediation, the student mediator suggested that the remainder of the mediation proceed in separate caucus.  I bit my tongue until the first separate caucus ended with one party making a “demand” that was better than he actually desired so that he would have “bargaining room.” At that point, I interrupted the session; brought the other party in from out of the cold and asked the student mediator what she is trying to achieve.

(continue reading after the jump)

Continue Reading

Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by  Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management.  Hat tip to Guy Kawasaki's Holy Kaw! where Ed. picked it up.

Kolb appears to be saying that the research on "women don't ask" is somewhat skewed because it generally concerns distributive (single issue) negotiations; doesn't control for anything other than gender; and, gives experimental subjects "asks" that are not representative of real world negotiations.

The lecture also covers "gendered" work; organizational obstacles to women's commercial success; women's exclusion from rainmaking networks; the motherhood penalty; and, work's relationship to personal life. 

Kolb discusses the issues that must be addressed by the researchers before they can provide genuinely useful negotiation guidance to help women begin to close the wage gap in business and the professions.

Kolb touches on negotiating work-place flexibility - whether it is harmful to those who seek it and how Deloitte's Women's Initiative has shown that customized careers can benefit both genders and the organizations in which they work.

In a recent article at Women's Media - Listening to Women:  New Perspectives on Negotiation - Kolb and co-author Judith Williams have the following negotiation advice for women (which is also excellent advice for men)

• Take stock of your value. 
  People negotiate because they need something from you. Being clear about the value you bring empowers you in a negotiation.

• Make your value visible. 
  When value disappears, so do influence and bargaining power. The other person must be clear about the benefits to them from negotiating and the consequences of failing to do so.

• Anticipate challenges. 
  An effective advocate must be ready to move in the shadow negotiation not simply to promote her interests, but also to block any attempt to undermine her credibility. Once possible objections have been identified, they can be countered.

• Appreciate the other's situation. 
  Consider five good reasons the other party might use to justify his or her stand and create opportunities to talk about them.

• Make it easy for the other person to say yes. 
  Listen carefully for his or her ideas. Connect those ideas to yours and build on them to create agreements that meet both your needs.

• Pay attention to the other party’s image. 
  Image is a concern for everyone. How negotiators look to themselves and to others who matter to them often counts as much as the particulars of an agreement.