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April 2010 | EFFECTIVE DIVERSITY STRATEGIES IN LAW PRACTICE MANAGEMENT
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Negotiating Gender: Why So Few Women Neutrals?

By Victoria Pynchon


Is it possible to neutralize implicit gender bias in populating ADR panels? Here's a detailed discussion of key issues involved.

 

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.

 

Recently, however, my all-time favorite "old white man" (my husband) reported back from a training session on an arbitration panel 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 underrepresented, are 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 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 International Institute for Conflict Prevention and Resolution, on whose panel I serve and Diversity Committee I sit, is grappling with ways in which to increase the representation of underrepresented "minorities" as I write this. The committee is active and populated with good people from powerful institutions, including the “client” we attorneys and neutrals both serve.

 

None of us has taken the action necessary to ensure that women and minorities populate ADR panels in sufficient numbers to make a dent in the implicit biases that keep attorneys from hiring them/us. And that’s a shame because I’ve been told by people at the highest levels (the Fortune 50) that it's easier for corporate America to meet its diversity goals by hiring women and minority neutrals than it is for them to do so by hiring women and minority attorneys. Sad but true.

 

The Statistics Reveal the Problem

Despite my own law school’s early inclusion of women in numbers equal to their percentage of the general population (50 percent in my 1980 graduating class at the University of California, Davis), the national law school statistics were this—women: 33 percent; men: 67 percent. In the 30 years since, the percentage of U.S. women attorneys working remains less than their law school numbers in 1980, i.e., only 30 percent of the 1,104,766 practicing lawyers in the United States. If you’d expect 30 percent of people on commercial ADR panels (the top of the food chain) to be women, you’d be misinterpreting those numbers as evenly distributed among practice specialties. They do not represent the percentage of women today who are in a position to retain neutrals to resolve commercial cases, the field in which I labored as an attorney for a quarter of a century without feeling gender bias.

 

(I’ll note that I didn’t feel gender bias because I did not expect to have both career and family—something my male colleagues took for granted. When I graduated from law school, the senior women advised me that having children before one was made partner (then a more predictable seven-year term) would be the death knell of my career. By 1987, what should have been my partnership year, I was 35 and on the brink of divorce. In any event, I’d long before “chosen” career over family.)

 

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 hiring commercial mediators and arbitrators today.

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%. 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 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 woman in ADR, Lucie Barron. Lucie does it backwards, in heels, while spinning 20 plates in the air.

 

ADR Services, Inc., has 13 women on its Southern California panel and 62 men—20 percent women. JAMS has 14 women to 61 male neutrals on its Los Angeles panel, close to 23 percent women. Although both fall far short of the 33 percent women who occupied law school classes the year I graduated, no one should be surprised by these percentages. ADR neutrals are mostly drawn from law school classes between 1970 (when the percentage of women was 10 percent) and 1990 (when the percentage of women was 43 percent, with most neutrals congregating at the older end of the spectrum).

 

How Consistently Are Women Being Hired as Neutrals Outside of Family Law, Estates and Employment?

With no disrespect to my sisters laboring in trusts and estates, family law and employment, these fields are associated with women because they “involve" a lot of emotion," which women are supposedly well-suited to handle. 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 the spectrum of emotionality from anger to 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 20 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 with whom I’ve raised this issue denies and every female neutral I've spoken with confirms.

 

Let's Look at Implicit Bias to Negate the Effect it May Be Having

I'd be more than happy to learn that I'm wrong in this assumption—that lawyers, both men and women, tend to choose male neutrals over women neutrals based at least in part on an implicit bias in favor of 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 percent of the attorneys who hire me to mediate their litigated disputes are male. This reflects the AmLaw 200’s failure to retain and promote women in anything like the numbers in which they enter the ranks of those legal institutions. Because I do not have the space to address that issue, I urge readers to purchase and read Lauren Stiller Rikleen’s brilliant and comprehensive Ending the Gauntlet: Removing Barriers to Women's Success in the Law.

 

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. (I was 20 years old that year and more than ready to set my sights “higher” than the occupations suggested to me—secretary, nurse, social worker or teacher). While writing a post on a shockingly racist incident at my undergraduate alma mater U.C. San Diego, I linked to the Harvard Implicit Bias Project and suggested anyone even remotely interested in diversity issues take one or more of the Implicit Association Tests available there. 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:

http://www.negotiationlawblog.com/uploads/image/gendercareerbreakdown.gif

 

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 20s ('73) and ending when I started law school ('77). I’ve returned to these issues 30-plus years later because I finally have the time to do so and because I have been genuinely shocked at the way in which gender has affected my career opportunities.

 

After learning about one’s own implicit biases at Project Implicit, test takers are directed to an article at Cutting Edge law entitled Neutralizing Your Own Implicit Bias to Avoid Conflict and Increase Flexibility. Here’s the bottom line on implicit bias:

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 25 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 1950s and 1960s, before and during the great civil rights movements of the latter half of the 20th century. Women were wives and mothers. Few of them worked. Dads were fathers, if at all, on special weekend days only. Dads worked. Mothers baked. Blacks lived in another part of town. I never had an African-American classmate until 1966 when I started high school. There was one, Mark, who was captain of the football team and student body president. 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, a university. Having Mark at my high school was a little bit like having Barack Obama for President.

 

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 raising children and working as professionals, managers and entrepreneurs at the same time; where dads parented as much as moms; and where professional accomplishment for women was as expected —and as respected—as it is for men.

 

The only way in which implicit bias will prevail is if we deny its existence. I am not suggesting that women or minorities get “special treatment.” I am only saying that white men continue to dominate American business and continue to wield economic power in far greater numbers than their percentage of the population. And as much as I love them, it’s not because they do a better job than women do. I am also 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 believe—and the social science research and statistics bear this out—that more women in ADR's ranks would be working more often in their chosen areas of legal specialty in the absence of implicit bias.

 

I urge everyone to go on over 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. Because at the end of the day, we all want to be fully “at choice,” hiring the best human being for the job at hand, which in the case of commercial litigation, will often be a woman.


About the Author

Attorney-mediator Victoria Pynchonis a panelist with ADR Services, Inc. She was awarded her LL.M Degree in Dispute Resolution from the Straus Institute after 25 years of complex commercial litigation practice. Among other Internet resources, she writes a blog called the Settle It Now Negotiation Blog, www.negotiationlawblog.com.

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