Negotiation Law Blog

I've been talking a lot about gender bias this month (National Women's History Month because I need an excuse to do this).  It's opened my eyes so wide that all I really want to do in April is to shut them again!  But I've never let myself off the hook that easily even though some people are, well, irritated with me.  Particularly women.

(as you page through this post, please identify the man who is not gay; you are disqualified from playing this game if you already know the sexual orientation of more than two of these men)

Don't ask.  Don't tell.  Get along.  Go along.  Be productive.  Don't whine.  It's not about gender bias, it's about the lack of available . . . pick one . . . women who want to be CEO's; women who pay more attention to their career than their families (shame on them); and, women who want to work as hard as the men at the top of the AmLaw 100 or Fortune 500 do.  Come on, admit it, ladies, we really would rather just stay at home!  

(break for a research study done by the social scientists:  when asked to count dots on a square for money - "keep counting until you believe you've earned the $4 dollars we'll pay you," women worked 20% longer and 20% faster than their male counterparts before they believed themselves to be entitled to the $4 dollars)

The images we carry in our heads about what the "others" look like, and the opinions we form about who they are based on the image we carry of them, makes more of a difference to our occupational opportunities than any of us wants to believe.  I don't want to believe it.  I just want to work.  That's what I do.  Work.  I'd almost go so far as to say that's who I am.  

Most people who know me don't think of me as a woman attorney.  They think of me as an attorney and then, in some order according to their degree of intimacy with me, their friend, colleague, opponent, mediator, arbitrator, professor, Board Member, speaker, trainer, coach.  A few people, mostly those in my writers group of sixteen years, think of me more as a writer than I do even though I'm finally on the brink of publishing this book and even though I've published a fair amount of short fiction, poetry, and literary non-fiction in the small University Press ("yes, mom, those are the people who still read poetry"). 

I suppose some people think of me as a blogger or someone in their Twitter network but I don't put those things on my vitae nor resonate with them sufficiently to make them Vickie-descriptors.  I'm a step-mother but I don't think my adult step-children think of me that way.  They grew up in a good two-parent home and only after they were grown and dad had been single for a few years did he meet this woman named Vickie who surely didn't look anything like a mother.  Or at least not like their own, beautiful and caring mother, though Steve's former spouse and I are more similar than we are different.

I write this final piece on the status of women (with a hat tip to the brave women at Newsweek who openly addressed the workplace issue that cannot be named until someone gets so discouraged that its name appears in a law suit - professional suicide for women lawyers) because I'm told that raising implicit bias to consciousness pretty much solves the problem of marginalization. 

How easy is that?

O.K., it's not easy.  It's hard.  We're fair minded people raised in the Great American Enfranchisement Era.  We've got political-issue and compassion-fatigue.  Really?  Some people still feel hampered by racism?  We've got an African-American President for gosh sakes.  Isn't that enough for you people?  And look at Hillary Clinton!  She's Secretary of State!  Women can do anything they want to. If  they're not, it's not any of my doing buddy, there just aren't enough qualified women out there.  Women lawyers make sixty cents on a male lawyer's dollar you say?  Well, that just proves they don't want to work as hard as men.  There are no restrictions.  I know a woman who . . . . . .

(by the way, it's nobody's fault - but we do need to help one another move past racial, religious, national, gender, sexual orientation, disability, and poverty stereotypes)

Here's the hilarious, fearless and brutally honest Chris Rock on minorities and money:

I live in Alpine, New Jersey, in a $3 million home. There are 4 other black people that live in my neighborhood. So it's me, a fairly successful comedian, then Mary J. Blige, one of the greatest R&B singers of all time, Jay-Z, one of the greatest rap artists, and Denzel Washington, one of the great actors today, right? Everyone else is white.

You know what my neighbor does?

He's a dentist!

He's not the greatest dentist of all time. He's not a superstar dentist. He's just a dentist!

You know what it would take for a black dentist to live in that neighborhood? If a black dentist wanted to live in that neighborhood, he would have had to invent teeth!

(not quite verbatim quote from Zen Personal Finance). I hear this story when people give me their successful women-ADR-neutral lists (they're pretty short lists) or tell me how few deserving women ADR professionals there are.  Deborah Rothman is the name most frequently mentioned on the "deserving women" short list.  She's a friend of mine and the Mary J. Blige of ADR. 

Deborah Rothman.  (from whom, by the way, I did not seek permission to mention)

(No, Deborah is not part of the "Which one of these Men is Not Gay Test).

Deborah was in Yale's first graduating class of women along with Meryl Streep - the first class of women in the history of the Ivy League to graduate from Yale University.  With Magna Cum Laude honors no less. Then Deborah went on to earn her Masters Degree in Public Affairs from. . . .  ready?  Princeton University.  And her law degree from NYU.  

(Meryl, as the archetypal evil woman executive in The Devil Wears Prada)

Before becoming a high-stakes commercial ADR neutral in 1991 (that's nearly twenty years of experience folks) Deborah Rothman worked with one of the top ten law firms in town - Manatt, Phelps.  Then, when she had children, she formed her own successful business, Baby Fair Enterprises, for which she served as CEO for four years.  Then she became an ADR neutral at a time when people thought "mediation" was "meditation" and the ranks of ADR professionals were almost entirely drawn from the ranks of retired Judges.  Deborah - breaking every glass ceiling she's ever failed to see.

Here's Deborah's resume.  How many neutrals of any gender have qualifications like this? 

Deborah invented teeth!   

When you think "woman arbitrator" or "woman mediator" I want you to think of Deborah.  I do not want you to call to mind the image of woman mediators an attorney recently told me popped into his head when he thought "woman mediator."  These women are fairly representative of the picture he painted except that they're not also crying.

(sorry, sisters, you look great but you don't appeal to my market!)

Here is what just a few of my Southern California commercial mediator women friends look like:  

 Occupations of the pictured men:  Air Force weapons systems officer; NASA astronaut; NFL star; rocket scientist (for major US defense contractor); television personality and style-maker; Governor of an American state; television series star; U.S. Congressman. 

Which one is not gay?

TRUE STORY:

Lorrie is a working mother and a trial attorney with two children under five years of age. Though working part-time for a part-timer’s salary, during the six months preceding year-end bonus time, she'd been billing more hours than most of the firm's other attorneys.  She was putting in the extra hours at considerable hardship to herself as she helped prepare for trial a case for one of the firm’s most important clients. The client was extremely pleased with Lorrie's work and had singled her out for particular praise.

Because Lorrie had worked so hard and so well, Lorrie's supervisor recommended that Lorrie receive the full $10,000 bonus the firm’s Executive Committee had earlier approved for all full-time associates who met their billing requirements. The Executive Committee approved the request and authorized the firm’s Managing Partner to give Lorrie the good news.

When the Managing partner called Lorrie into his office, he told her that the firm was considering giving her a $7,000 bonus, which bore the same percentage to $10,000 as her part-time salary bore to full-time associate pay at her level.  Lorrie said she understood; that she greatly appreciated receiving any bonus at all; and, thanked the managing partner for the $7,000.

When Lorrie’s supervisor heard about the bonus, she immediately called the Managing Partner and demanded to know why Lorrie wasn’t given the $10,000 bonus she'd recommended.

"I thought you said the Executive Committee approved it."

"Oh, the Executive Committee approved it,” said the Managing Partner.  “But Lorrie seemed so happy with the $7,000 bonus I thought I’d do the firm a favor and save it three grand.”

"She’s talking about leaving the firm."

“I don’t understand,” the Managing Partner replied.  “She was so happy.  If she wanted more, why didn't she ask for it?  I was expecting her to negotiate.  $7,000 was my opening offer." 

A month later, Lorrie left the firm, to the great disappointment of her supervisor and the firm’s client.

WHAT’S THE PROBLEM HERE?

If I were advising the firm rather than women studying negotiation, I'd have a few choice words for the Managing Partner about being penny-wise and pound-foolish. But we’re not talking about corporate America here. We're talking about your well being; your family's well being; and, your ability to immediately change the income gap between you and your male counterparts (an American gap of 76 cents on the dollar in general and sixty cents on the dollar for women lawyers)

The prescription is available at You Can Negotiate Anything here. 

We begin on April 1 so sign up now!

Five years ago, after twenty-five years of high-stakes complex commercial litigation, I left legal practice to pursue a full-time ADR career.  At the time I left practice, these were the questions my teams and I were asking about the qualifications of mediators:

"Do we really want to hire an attorney mediator for this case?"

"Don't you think the client wants a Judge?"

The ADR profession has mostly passed that hurdle.  Though some litigators continue to say "my client needs to hear the bad news from a retired judge," most litigators understand that mediation is more about influence, deal making, subtle persuasion, specialty knowledge, "real life" experience, people skills, and raw intellectual speed.  

(why is the second edition of this book pink?)

I've been reading Women Don't Ask:  Negotiation and the Gender Divide by Babcock and Laschever in preparation to teach my month-long You Can Negotiate Anything course for women over at Lisa Gates' shop, Craving Balance. Wow!  It's like reading The Second Sex for the first time in college.  It explains so much.

Right now I'm going to remind my readers that well-behaved women rarely make history.

These are the conversations taking place at the highest levels when someone suggests my name as a mediator.

"Do we really want a woman mediating this case?"

"The client won't accept a woman mediator."

"This case doesn't have women's issues in it."

"If it was an employment case, a woman might be appropriate.  Those cases involve a lot of emotion. Women are good at that." (I'll say it again:  if you don't believe men are emotional about litigation, you don't understand that anger is an emotion)

Why are they even talking about my gender?  Why is it relevant?  They don't ask "do we really need a man to mediate this case?"  Except on those occasions when women's issues are involved.

How do I know this?

I've got the statistics from Babcock and Laschever; I've got the knowledge of how high-end litigators talk deeply embedded in my genetic code; and, I've had the following way too recent conversations.

Conversation Number One with the CEO of a Successful ADR Panel

Victoria:  "Let's put WLALA (Women Laywers of Los Angeles) on the list of organizations to send marketing materials to."

CEO:  (without a beat) "No.  Women don't refer."

Conversation Number Two with (male) Litigation Client in Separate Caucus

Victoria:   "Do you worry about jury blow back because your clients don't have green cards?"

Attorney:  "Not any more than I'd be worrying about what they'll think of the Lesbians in the next room."

Victoria:  "Ohhhhhhhh, they're Lesbians!"

Attorney:  "Why do you think we hired you?"

Conversation Numbers 3-10 with Separate Litigation Clients in Separate Caucus

Victoria (as an aside):  "You know I didn't practice personal injury law."

Male client:  "We know.  But we needed a woman for this case." (# 1:  injuries to the scalp at a hair salon; #s 2-5:  injuries arising from Botox treatments; #s 5-8:  women real estate brokers or agents and women clients; # 9:  medical malpractice:  wrongful cliterectomy; # 10:  medical malpractice:  wrongful vasectomy).

Conversation Number 11 with the Head of a Federal Settlement Panel

"The attorneys rarely choose the women on the panel." (and we're free!)

Conversation Number 12 with an ADR Insider

"So few attorneys were choosing African-American and women arbitrators that they stopped putting them on the panel."

A Baker's Dozen:  Conversation Number 13 with a Fellow Mediator (Male)

Mediator:  "Why don't you pursue the women's market?"

Victoria:  [speechless]

Although the answer to this question could have been:  "because women don't refer."

Get the picture?  Yes we see.

Why "Women Don't Ask:  Negotiation and the Gender Divide" makes this all make sense tomorrow.

I was at a meeting of settlement officers for the U.S. District Court (Central District of California) last week when someone complained of a proposed rule change that attorneys would "game the system."  I said (snarkily) "is there any other way?" 

An early mentor told me:  anyone can win on the merits - it takes a great lawyer to win on procedure. 

That was the least of it.  Here are some other words of wisdom handed directly down to me from lawyers past:

you don't get paid to settle; you get paid to win

if the other side wants it, you don't; if you can't see how it will hurt you now, you haven't thought enough about it yet

we don't give extensions of time, period, ever; we make them regret the day they sued our clients (or defended theirs) 

come back with your sword or on it

make her cry (pre-deposition instruction about opposing counsel; I did; came back and said "don't ever ask me to do that again")

bury them in paper

bury it [the smoking gun document] in paper

object, object, object - the other side has to meet and confer anyway

I solicit more of this litigation oral tradition from my readers. 

Of course we "game" the system. Isn't that what our clients pay us to do?  To walk up to the line of wrong-doing; stop just short of it; and, make them regret the day . . . . Has it changed?  Here's what the State Bar of California would like litigators and their clients to do:  be civil.

RESOLUTION OF [_____________________________]
APPROVING AND ADOPTING CALIFORNIA ATTORNEY
GUIDELINES OF CIVILITY AND PROFESSIONALISM
RECITALS

A. As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.

B. Civility and professionalism have been affected by a number of factors, as a result of which there is a need for attorneys to recommit themselves to the principles of civility and professionalism.

C. On July 20, 2007, the Board of Governors of the State Bar of California adopted California Attorney Guidelines of Civility and Professionalism.

D. The Board of Directors of [________________] are of the unanimous opinion that the Guidelines will be of significant assistance in encouraging members of [________________] to continue to enhance their reputation and commitment to civility and professionalism.

RESOLUTION

The Board of Directors of [________________] hereby approves and endorses the California Attorney Guidelines of Civility and Professionalism and recommends that all members of [________________] commit to and agree to be guided by such
Guidelines.

Dated: _______________
[________________________]
By: _____________________
California

The full California State Bar "Civility Toolbox" here.

Xan Skinner, a lawyer, mediator and restorative justice practitioner, lived for four years in China and speaks Mandarin.  Yesterday, at the Orange County Mediation Conference, Lee Jay Berman of the American Institute of Mediation, gave the keynote on Cross-Cultural Negotiation.  Xan's joining Lisa Gates and my on-line community learning course You Can Negotiate Anything at Craving Balance.  In response to a few tweets from the Mediation Conference about Lee Jay's talk, Xan (@xanskinner) directed me to her post about negotiating in China, which begins with the ominous warning, "never get into a bar fight with a Thai" and ends with the following observation.

A  Hong Kong shopkeeper once told me why he likes Americans as customers.  He says, "Indians have money, but they are very sharp.  They're skilled negotiators, and they haggle a hard bargain.  Americans, on the other hand, are great customers.  They have a lot of money, and they're not too smart."  A fool and his money are, truly, soon parted!  I guess, after first accepting that I'll never be wealthy, I have to admit to myself that my true, main goal is not to end up dead on the bar room floor. 

If your true "main goal" is to insure that those with heart and soul also wield a little economic power, avail yourself of the opportunity to get in on the ground floor of Lisa's and my new joint venture, priced so low you might under-estimate its potential value to you.  What is that value?

You will learn:

• how to negotiate retail
• how to to let your bargaining partner have your way and strengthen your relationship at the same time (answering Xan's troubling question:  isn't getting the best deal for me selfish, unfair, wrong, even downright immoral)
• how one woman, using "female" interest-based negotiation tactics, survived a round of lay-offs by simply refusing to be laid off.
• how to know whether your bargaining partner is "taking" you
• how not to be "taken"
• how to be at choice in the great "money vs. quality of life" conundrum

At the end of the course, you will be able to:

• save at least $1300 on the purchase of your next car (this is the sum buyers are said to lose every time a woman negotiates the purchase of a vehicle)
• ask for and get the raise you deserve especially in this difficult economy
• ask for a get the "lifestyle" concessions you want without giving up salary in return
• get the better part of the bargain even when negotiating from a position of weakness
• negotiate better deals for your clients, friends and family

And you do not have to be aggressively competitive nor change a single thing about yourself other than to practice the skills we teach you -- how to negotiate in an interest-based collaborative, problem solving way.

The Comparables

One of the primary ways we learn to test the value of an offer is to check out what the competition is charging for the same services.  When the services are this unique (Lisa's life-altering coaching skills coupled with my dynamite negotiation training) it's difficult to find anything comparable, but here's my attempt to do so.

• How I first learned what I can now teach you
  • the Straus Institute course on Mediating the Litigated Case
    • $2,195 for 42 hours of training
  • the Straus Institute LL.M I earned after Mediating the Litigated Case changed my life
    • $40,000, give or take a few thousand on either side
• Other negotiation courses
  • the two day Karrass Negotiation course - $900-$1,000 (this is the one you read about in your in-flight magazine)
  • the American Mediation Institute's one day Strategic Negotiation Skills Course
    • I actually recommend you take this great course
    • it's a great bargain at $345
    • the next class will be on March 27 - if you're local, spend the coin to spend the day with master negotiator Lee Jay Berman
  • Negotiation Dynamics Core Training Program on CD
    • $297
    • this is probably a great bargain but I know nothing about the bona fides of this course so cannot recommend it
  • My own corporate "in-house" tailored one-day negotiation course for lawyers, executives or managers:  $5,000 for up to 50 people

Why us?

First of all, we're women.  In my market - the negotiated resolution of complex commercial litigation with hundreds of millions of dollars at stake, I can tell you frankly that my gender is not a selling point.  It should be because conflict resolution and negotiation are more about influence and people skills than they are about power and authority.  While we wait for the guys to get it, we can (men, don't read this) totally overtake them by learning what they know (distributive, competitive negotiation strategy and tactics) while at the same time using what we already know (interest-based, collaborative, problem-solving negotiation strategy and tactics).

Are you with us?  Come on the journey.  Change your life and the lives of those you care about by adding economic power to the powers you already possess in abundance.  It's the Century of the Woman.  We need you to step up to the line because this is not just about getting the best deal on your next flat screen TV purchase. It's literally about saving the planet!

I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month.  Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.

Litigating and trying complex construction disputes requires visionary strategic talent; incisive tactical skill; wise management abilities; and, dogged persistence.  Now construction litigator, trial attorney and mediator Ron White brings those qualities to the settlement of complex construction disputes with his newly launched blog, The Critical Path, Tools for Resolving Construction Disputes.

Take a look at Ron's most recent post, Negotiations and the Samurai Code:  Seven Habits of Highly Successful Negotiators.

I especially like the opening "habit" - vision. Below is an excerpt, but you'll want to stroll on over to Ron's new shop to check out the entire post.  While you're there, welcome Ron to the ADR and Construction Law Blogosphere.  I long ago told him that we're like a small town in Iowa where people still leave their doors open and the welcome wagon arrives with lists of local services; good advice; and, baked goods. Don't make a liar out of me!

"A successful negotiator," Ron writes

has outstanding vision; he sees both the strengths and weaknesses of his case. He has the capacity to look beyond the narrow focus of advocacy and peer into the broad spectrum of possible outcomes through the eyes of the judge or the jury. He meticulously evaluates the law and facts advocated by his opponent, knowing, as did the samurai, that “You must understand the conditions on the opposite shore to comprehend your side of the river.” This perspective minimizes negotiating mistakes, which, studies have shown, occur more frequently with plaintiffs, but that when defendants do make them, they are really big mistakes resulting in awards much higher than plaintiff’s last pre-trial settlement offer.

Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day.  They do so by:

1. their reputation for success at trial;
2. their ability to choose the right moment to first discuss settlement;
3. their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
4. their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
5. their persuasive skill set - both with opposing counsel and with the mediator;
6. their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
7. their determination to make aggressive but reasonable first offers;
8. their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
9. their ability to bring the right people to the table at the right time; and,
10. their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.

Some of these skills are in all litigators' arsenals.  Where most litigators are the weakest is in the negotiation of settlements.  I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.

Here are two new resources you should have at hand every working day.  "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds. 

Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace.  There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really).  Laywers love numbers in the way only people who don't understand them can.  I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation.  For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers.  Do check it out.

There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator.  This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.

The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for.  Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%.  Today Lee Jay mourns the passing of a giant in our field - Richard Millen.  As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.

Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.

How to Negotiate Anything: Free Intro

Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of the major reasons for the persistent wage gap for women in all work-related activities.

Celebrate Women's History Month this March with a free introductory teleclass taught by lawyer/mediator Victoria Pynchon and hosted by Lisa Gates of the dynamite Craving Balance Learning Community. You will learn the difference between competitive bargaining and collaborative interest-based negotiation. You'll also asses your negotiation challenges and discover your focal point for truing up not only your major challenges, but your everyday negotiation skills.

Prior to the free teleclass, we highly recommend following this link to complete a Negotiation Assessment. Taking the Assessment will help you get the most value out of your time on the call. It will show you where you are now, and give you a clear and personal foundation for identifying your next steps. Taking the Assessment will also help us identify the specific needs of the group and allow us to speak directly to your real life challenges.

Complete information on the month-long online journaling and learning course that follows the free teleclass can be found by following this link.

Class size is limited so register NOW!

I received this from a senior in-house attorney (male) at an international Fortune 500 company in response to my posts on gender bias:

international arbitration . . . tends to be dominated by white males with European surnames.  The closed pool presents something of a problem for parties who are not enamored of a scrub-each-others'-back (consciously or unconsciously) form of decision-making.  One way of injecting energy into the process is to apply diversity to the appointment of neutrals, arbitrators or mediators.  It forces us to actively look for the right skills, talent, [and], reputation for the particular dispute.  [W]ithin [my company], where we seek to measure whether we are hiring diverse outside counsel, my own division has been able to claim some diversity credit by appointing women arbitrators.  (and, between you and me, I have to say that we've never been disappointed - the dancing backwards rule always applies.

I am not advocating here for "special treatment" for women neutrals.  I am advocating for the end (or simply the diminishment) of "special treatment" for male neutrals.  Here, the client speaks.  Hiring with diversity in mind forces clients to find the best and most talented person for the job free of the "quid pro quo" burdens of the old boys' network.  "Sorry, Chuck.  That was a great getaway to your country club and I enjoyed the golf, but we've got these stupid diversity goals to meet so I'm afraid I'm not going to be able to reciprocate your many kindnesses by throwing as many cases your way as I used to." /1

Diversity Makes Good Business Sense

If diversity makes good business sense to the Fortune 500, shouldn't it make good client relations to the AmLaw 200?  Consider the following item from CNN (I'll track down the link again soon).  

On Oct. 1, Indra Nooyi takes the helm at PepsiCo (Charts). And with that, the soda and snacks giant becomes the largest U.S. company by market cap to put a woman in charge. .  .  Since 2001, CEO Steve Reinemund has enforced aggressive hiring and promoting rules. Half of all new hires at Pepsi have to be either women or ethnic minorities. (Half!) And managers now earn their bonuses in part by how well they recruit and retain them. Today 25% of Pepsi's managers are women, up from 22% four years ago. Six of its top 12 execs are now women or minorities.

Is Pepsi simply being a good corporate citizen?  Is it putting social concerns above  profits?  Hardly.

The diversity push is part of Pepsi's game plan to better understand the disparate tastes of new consumers as it continues to expand globally. That's probably the new CEO's biggest challenge. But Nooyi--who as Pepsi's CFO led its successful acquisition of Quaker Oats--should be up to the job. The thing that got her hired, after all, wasn't being a woman. It was being a sharp strategist. /2

Women Improve Performance

A study by Roy Adler, a professor at Pepperdine University in Malibu, California, tracked 215 Fortune 500 companies, comparing their financial performance to industry medians. He found that “companies that smash the glass ceiling also enjoy higher profits.” In a recent Harvard Business Review article presenting his findings, Adler showed that “the companies with the highest percentages of female executives delivered earnings far in excess of the median for other large firms in their industries.” The Canadian Conference Board findings support those of Adler. It tracked the financial well being of firms with two or more women on their boards in 1995 to see where they stood six years later. It found that firms with women board members were much more likely than companies with all-male boards to be leaders when ranked by revenue or profit. .  .

From Women on Corporate Boards Makes Good Business Sense.

What might be the cause of the dramatic differences that women on boards make to corporate bottom lines?  Consider the following:

In May of 2002, The Conference Board of Canada published findings of a major study they did of women and corporate boards. These findings suggest a strong link between female numbers on boards and good-governance credentials. The researchers found that 94% of boards with three or more women (compared to 58% of all-male boards) insist on conflict-of-interest guidelines; that more female than male directors pay attention to audit and risk oversight and control; that women, more than men, tend to consider the needs of more categories of stakeholders and; that women, more than men, tend to examine a wider range of management and organizational performance. The findings reveal that 72% of boards with two or more women conduct formal board performance evaluations, while only 49% of all-male boards do; that companies that provide boards of directors with formal, written limits to authority have a greater percentage of women directors than do organizations with no formal limits to authority and; organizations that provide boards of directors with formal orientation programs have a greater percentage of women directors than do organizations with no such program.

Id.

Gentlemen and ladies, start your engines!  The economy needs all of us and it needs all of us right now!

Update:  concluding the recent American Lawyer lead article on substantial recent declines in law firm diversity are the comments of DuPont's and General Mills' GC's:

"Just listen to Roderick Palmore, general counsel of General Mills, Inc., whose 2004 Call to Action set off a major diversity push by U.S. general counsel. "The challenge is that we cannot look at these statistics and these results and sit still," he says. "We're in a dogfight." Adds DuPont's Sager: "I think [firms] ought to be concerned how [a decline in diversity] is perceived at law schools, in the legal community, and most of all, by their clients."

Diversity Scorecard 2010:  One Step Back

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1/  In the "old days," these "kindnesses" included nights out at strip clubs and the occasional retention of a hooker for foreign clients.  No kidding.  And I was told early in my legal career (the late '80s) that I could, if I wished, accompany the client's CEO and the senior partner to the strip club if I wished to be part of this particular "networking" opportunity but I wouldn't be blamed for foregoing it.  I always forewent strip clubs.  I could drink prodigiously with clients but I could not comfortably stick a hundred dollar bill into a stripper's panties.

2/  Note that no one ever says "[t]he thing that got [him] hired, after all, wasn't being a [man].  It was being a sharp strategist."  This article is from 2007, and the journalist must still make it clear that there are competent women out there to do jobs still seen as the domain of men.

Now you know the disappointing statistics.  As women have populated the Bench, justice has become more privatized, lessening the benefits of diversity to those whose disputes lead them to Court; to arbitration panels and associations; or, to mediation panels.

(make of it what you will, but I was definitely a boy-toy girl, i.e., trucks, cap guns, baseball gear and the like; no dolls - yeeccchhhhhh)

Here's the inside scoop - all of it anonymous - and gathered from people in a position to know, i.e., people who manage ADR panels, both in court-annexed programs and in the private sector.  These are observations from the national scene and no one should conclude that they refer to practice in Southern California or to panels with which I'm affiliated - I know a lot of people around the country because I blog and am pretty deeply wired into ADR practices and procedures both nationally and internationally.

1. even on pro bono panels, particularly in the more commercially oriented federal courts, panel users rarely choose women;
2. women are so seldom chosen as arbitrators that at least one urban arbitration panel stopped putting women on a local roster until the decision to "let the market choose" came to the attention of the organization's higher powers who likely saw this for what it was - intentional gender discrimination;
3. because "women don't refer" cases to private ADR panels, women's legal organizations are often excluded from those panels' marketing efforts; and,
4. women are leaving prestigious ADR panels to commence judicial careers or return to the bench because they cannot make a decent living in the commercial ADR sector.

I'm a Lawyer Who Happens to Also Be a Woman; Not a "Woman Lawyer"

I've avoided this topic because I don't like whining about circumstances that could possibly hinder my own career.  I'm not used to whining.  I'm used to working.  And as I've said many many times before, I did not experience gender discrimination as an inhibition to career advancement in commercial litigation.  During the early years of my practice (say, 1980 to 1985) the response to the flood of women entering the legal market was:  (1) we were explicitly told that we had to prove our mettle by taking the "heat" in litigation's "kitchen" - we accepted this challenge and met it; and, (2) we were supported by our law firms in response to biases in the market. 

(image right:  we were trying to figure out who to be)

How supported? 

Like this.

Client:  I don't want Vickie Pynchon assigned to this case (1983)

Senior Partner:  Why?

Client:  Frankly, I don't want a woman representing my interests in Court or any other venue.  I don't think they're tough enough and I don't think it will give my opponent the right impression of the power I want to project.

Senior Partner:  If you don't want Vickie on the case, you'll have to find another law firm because she's the best associate I've got.

As late as 1987, clients in an antitrust action told the senior partner on a case on which I was the senior associate that they didn't want me to take any of the significant depositions.  At first, the senior partner agreed.  Time passed.  He was a rain maker.  I was a worker.  I knew the facts far, far better than he did.  Critical depositions were scheduled.  The partner continued to assure the clients that he would take those depositions.  Then he "fell ill."  I was pinch hitter

The clients came, suspicious and angry.  They passed notes among themselves and some to me with suggested lines of questioning.  Eventually, the notes got crossed and I received one of the client-only communications. 

It said, "oh my god!! she's great!!"

I'm not blowing my own horn here.  Here's my experience with those few clients (half a dozen in a twenty-five year practice) who affirmatively stated a gender-bias to the "senior" male members of my law firm/s -  they judged my performance as simply brilliant because they had such low expectations.  Most women use this to their advantage, as do most litigators.  There's no better advantage to have in litigation than the low expectations of opposing counsel and there's no better way to impress prejudiced clients than to perform competently in their presence.

So what to do about gender bias in ADR?  Should we "listen to the market" and provide them with what "we" (think) they want?  Or should we respond to implicit bias in the profession by flooding arbitration and mediation panels with competent women (we do exist in sufficient numbers to easily accomplish this goal)?  As I've said to more than one arbitration panel executive "implicit bias will evaporate when the lists of arbitrators sent to the parties by the organization include five women and one man instead of six men or five men and one woman."

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