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."

Why?  Because striking five women from a list of six would create cognitive dissonance in the minds of panel patrons, none of whom believe they possess biases (take one of those implicit bias association tests at Project Implicit (Harvard) right now. 

Finished?

We all have implicit biases, even women against women and Blacks against Blacks.

But, it's now well established that we want to be unbiased and that egalitarianism will trump implicit (unconscious) bias if we are reminded that we need to pay attention to those knee-jerk biases.  All we need to do is stop denying that we have prejudices. 

Here's some supporting research.  Two trials were conducted with mock jurors - in the first trial, race was overtly mentioned - a black man referenced race while robbing a white man.  In the second trial, the race of the accused (black) and his victim (white) was not an issue. 

So here’s the question: In which case do you expect White jurors to show more racial discrimination against the Black defendant?

If, like me, you said Trial A (the crime with overtly racial connotations) you would be wrong.  It may be counterintuitive, but there’s an increasing body of work suggesting that when race is overtly discussed as a factor in decision-making, prejudicial decision-making by whites decreases.

Samuel R. Sommers and Phoebe C. Ellsworth discuss this phenomenon in their paper White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom.  They believe that because “many whites embrace an egalitarian value system and a desire to appear nonprejudiced,” overt racial issues serve as a reminder to whites to avoid discrimination.  Conscious egalitarianism trumps subconscious bias. If race isn’t made an overt issue at trial, however, “contemporary norms of egalitarianism are not necessarily triggered” and thus,  unconscious bias may rule the day.

From Americans for American Values

• high profile campaigns marketing panel women on every arbitration and mediation panel in the country;
• the placement of far more women on private ADR panels (we who do it backwards and in heels, i.e., those of us who made it through the "gauntlet" of private legal practice, particularly those now of ADR-"age," who are among the most ambitious, dynamic survivors of an age when positive,  intentional discrimination might have stopped us; we've self-selected for across-the-board consistent excellence and really really hard work);
• arbitration panels should stop making it easy for panel patrons to unconsciously exclude women based upon implicit bias - it's easy to do so when there is only one woman on the list of potential arbitrators - once panels are fairly representative of the qualified women ready, eager and trained to serve, every list of proposed neutrals should reflect their percentage of the panel population, which should, at a minimum, be at least a third of all panel arbitrators;
• promote your women whenever you market;
• let your customers know you're promoting women because the Fortune 1000 has diversity and inclusivity goals they must meet; I've been told it's easier for them to meet those goals by hiring diverse arbitrators and mediators than to satisfy their goals by hiring diverse and inclusive law firms - this is a client interest that hasn't begun to be tapped and the client perspective (based on high-level conversations with executives who wish to remain anonymous) will be the subject of my next post.

The research supporting these suggestions for overcoming implicit gender bias in ADR?  I turn again to Americans for American Values.

In Color Lines in the Mind, a chapter in the book, Twenty-first Century Color Lines, Nilanjana Dasgupta, a Research Advisor to AAV, authored a summary of the research on combating implicit bias.  Dasgupta recommends three courses of action:  (1) increasing diversity in local environments; (2) enhancing motivations to be egalitarian; and (3) providing opportunities for people to practice being non-biased. We discuss these three tactics below before moving on to a discussion of specific studies.

Increasing the Diversity of Local Environments. Dasgupta’s research shows that increasing diversity and contacts between various kinds of people helps lower implicit bias.   This method has been shown to be successful both through increasing actual inter-personal contacts among whites and people of color in socially valued roles, and altering the media’s depiction of people of color.   Dasgupta states that:  “Explicit decisions on the part of media executives to give more air time to racial and ethnic minorities in news media, advertisements, TV shows and films is likely to go a long way toward increasing the visibility of these groups and creating unconscious associations linking such groups with positive images.”

Increasing Conscious Motivation and Control over Prejudiced Responses. While she acknowledges that implicit prejudice is “not easily derailed” by conscious thoughts, research shows that people have the capacity to “make themselves mindful about their thoughts and actions” and to monitor and correct their behavior to reduce prejudiced behavior.  For example, according to one study, “people who are vigilant and who train themselves to suppress negative stereotypes when they pop into mind can, over time, erase implicit bias from their thoughts”.

This series of posts is not without risks.  I've been told that the topic of implicit gender bias is "toxic," as if I didn't already know that.  No one wishes to go on record about it.  But silence is not the way we early pioneers of the Second Wave Women's Movement accomplished the following:

• elimination of "women wanted" and "men wanted" employment ads;
• Title IX, giving women the same rights as men to participate in collegiate sports
• granting married women the right to have credit in their own names
• equal pay for equal work
• opening the First Feminist Credit Union (we did that in San Diego when I worked for a Women's Center as a Vista volunteer in the early '70s)
• opening up the skilled trades to women, which included training women in "stuff guys know" like "what's a socket wrench" (also in the course of my work as a Vista volunteer)
• creating career opportunities for women outside those I grew up believing would limit my potential - wife and mother (not a bad occupation, but men got to be husbands and fathers without having to give up meaningful and remunerative work outside the home); teacher (K-12); nurse; clerical; social worker and all other "pink ghetto" jobs - not, again, to "dis" the jobs, but to say they are a very narrow box into which women of vastly different talents were expected to stuff themselves

And these are just representative; there are dozens more.

So here's the question I finally asked myself and one I'd like my ADR sisters to, at a minimum, pose to themselves.  Am I more afraid now of limiting my own opportunities by raising "toxic" subjects and potentially offending my market, then I was in my twenties?  "Yes."  The next set of questions - whether I was proud of myself; and, whether I was being a good role model to my niece, my step-children and my eventual step-grandchildren, as well as to the women lawyers who followed me in the profession - I had to answer those questions in the negative.  And I didn't like that.  If I don't have the courage to risk depressing my relatively good standard of living, what would I do when acts of true courage might be required of me?  I didn't like the answers.

This isn't really even courage.  It's simply the right thing to do.

Tomorrow - what's the client got to do with it?