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.