Negotiation Law Blog

Last week at ForbesWoman -- full post here. Excerpt below.

[Last week] I learned that Women Lawyers, Law Students Aren’t Speaking Up in several places including The Lawyerist in its post Women Lawyers: Silence Isn’t Always Golden by Staci Zaretsky.

WTF??????????

The most competitive and ambitious women in the land are stifling themselves?

Looks like it.

• women law students are less likely than their male classmates to participate in classroom discussions
• women law students are less likely to seek advice from their professors
• women law students are more likely to be motivated by fear (that’s ok, of course, so long as you do what the river guides tell you to do – paddle through your fear!)

Still, we graduate from law school and often do so with high honors or we wouldn’t represent such a large proportion of the new associate ranks in the best firms in the land. All first year associates are frightened. They don’t know a thing, really. Certainly not how to practice law.

It Takes Courage!

It’s a very adult task to speak up for a major American corporation likeFord Motor Company (NYSE:F) in court; to make an objection to the question asked by the deep-voiced man of advanced years sitting across the conference table from you harassing your client in a deposition. It takes courage to tell a jury of twelve strangers that your client was innocent even though five by-standers identified him as the guy who robbed the Circle K (CLKSF:OTCUS).

So we “woman up” when we get that first job and speak up, right?

According to a recent study, apparently not.

We argue only 15% of all cases heard by the Supreme Court. One of those 15% tells Stephanie Rabiner that “women don’t like verbal jousting” and are “horrified” by the controversy it might cause to take a case to the highest court in the land.

Really? Really??

There’s Work to Be Done

O.K. You don’t care that much about money. And you’d really rather have a balanced lifestyle, which you’re hoping will allow you to just go to work, put in your hours, come home and tend to the children who, you hope, you’ll be able to comfortably accommodate into your work-life. You ski. You travel to exotic places. You want to buy a home – an acquisition thatChris Buckley says gives you the right to use the Yuppie Nuremberg Defense - I have a mortgage to pay.

That life you’re imagining rests on the shoulders of the women who broke this path for you. But that’s ok. We didn’t want to create a generation of women who were grateful. We wanted to create a generation of women who would stick up for themselves and for their sisters.

As Gloria Steinem once said, “it’s ok if young women don’t remember whoI am. It’s only important that they remember who they are.”

But listen up ladies, women, sisters, fellow barristers and advocates. There’s work to be done in the world. You have  the education and the training necessary to make a difference at the highest levels of power. And if you choose not to use that power  . . . well . . . at least have the decency to feel just a little bit guilty about it.

Here’s What You Have the Power to Change according to Nicholas Kristof’s Half the Sky.

• more than 107 million women are missing from the globe today
• more girls have been killed in the last fifty years because of their gender than men were killed in all the wars of the 20th century
• more girls are killed in this routine gendercide in any one decade than people were slaughtered in all the genocides of the twentieth century
• every year another 2 million girls worldwide disappear because of gender discrimination
• of the 600,000 to 800,000 people who are trafficked across international borders every year, 80% are women and girls, who are imprisoned , beaten and raped many times every day of the week to serve the world’s sex trade
• the global sex trade is larger in absolute terms than the entire Atlantic slave trade was in the 18th and 19th centuries

Feel like speaking up in class yet?

How about that bill pending in an American state legislature that wouldmake the murder of a physician providing abortion services to your sisters, your daughters and your mothers justifiable homocide?

You’re a lawyer. Doesn’t that seem wrong to you?

No well-behaved woman ever made history. Nor did she end the international slave trade in little girls.

Ready to misbehave yet?

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

Spoiler alert:  this will ramble, so anyone who wants a quick shot of mediation or negotiation advice, do come back soon.

The Back Story

When I first dipped my big toe into mediation's waters by taking Mediating the Litigated Case in a downtown hotel ballroom back in the Spring of 2004, generous attorney-mediators like Jeff Kichaven, Laurel Kaufer, Bob Steinberg, Jan Frankel Schau, Steve Cerveris, and Deborah Rothman all arrived on the beachhead of my new profession with advice, support, empathy, and warnings.  Starting a new profession, particularly one that is entrepreneurial, is just like moving into a new neighborhood and these wonderful mediators were my Welcome Wagon (for which I will always be grateful).

It didn't take me long to learn where the landmines were buried. And a lot of them surrounded the perimeter of the downtown Los Angeles Superior Court.  There's an mediation pro bono panel there where new mediators can first practice their new trade, learning the skills, picking up best practices, and, beginning to build a reputation for excellence among the litigation and trial bar.  This was all good and I was grateful for the opportunity to have cases referred to me to test my new-found mediation knowledge and growing skill-set.  Never mind that I was paid to practice my new legal trade as soon as I'd passed the Bar.  I understood that this was a kind of internship and I was happy for the opportunity to serve.

My new mentors, however, as well as pretty much everyone else I met, had some dire warnings about conflict between panel mediators and the Superior Court.  Conflict?!?  By May of 2004 (a month after I'd finished my first mediation class) I'd enrolled in the Master of Laws program at the Straus Institute for Dispute Resolution, not because I thought it would give me a necessary credential, but because I was on fire for this new field of study. 

How could there be simmering conflict in a community of conflict resolvers, I repeatedly asked, long before I realized (once again) that people chose their occupations at least in part to work on improving their ability to handle situations that baffle them.  Yes, we conflict resolvers were, like therapists, "wounded healers."  We had conflict issues!

The Problem

The problem that existed when I entered the mediation profession was this - the pro bono panel had been providing free mediation services to Los Angeles lawyers for years.  There are a set of understandable and complex reasons for the initial "decision" to ask L.A. citizens (panel members are not necessarily lawyers) to provide free mediation services on behalf of the Court to the organized bar. Those reasons, and the unresolved conflict that existed in 2004, are the same today as they were then - witness Jeff Kichaven's recent Daily Journal article excoriating the maintenance of this free service once again, this time on behalf of women and minorities.

Here's the intro to Jeff's article:

August 13, 2010 DIVERSITY IN MEDIATION:HERE'S HOW By Jeff Kichaven