I have represented women as employees over my whole career and in doing so have found that the presence of stereotypical thinking is pervasive and provable in the gender discrimination cases that have merit. Nevertheless, I confess to having had a serious senior moment when I agreed to write an article on the delicate topic of perceived differences between male and female ADR professionals. What was I thinking? I hasten to tell you that the following commentary should not be taken as my own thinking. It is, instead, the product of research that reflected some studies that exist on these perceived differences.
Neither men nor women always behave in gender-stereotypical ways. There are always visible exceptions to the general perceptions of how men and women act in the conflict/negotiations arena. But there are common perceptions. In Resolving Conflict, Gregory Tillett listed the following perceived negotiation traits: Men tend to talk the language of fact; women talk the language of feelings. Men talk the language of reality; women talk the language of perception. Men tend not to disclose feelings; women will disclose feelings. Men tend to focus on problem solving; women tend to talk about changing a relationship. Men tend to talk in the present; women tend to talk in the past and the future. Men focus on content; women focus on relationship. Men tend to be competitive and need to compete even to their disadvantage; women tend to compromise and often appear willing to yield. Men tend to be very concerned about saving or losing face; women are not concerned about losing face.
Similar themes have been found in the ADR world. In 2010, Victoria Pynchon, who writes the Negotiation Law Blog, reported on her "unscientific poll of women in business concerning their skills, attitudes and fears about negotiation." She used a 1-10 scale for answers, with 10 as the most agreement. Here are some of the results:
"I do not like negotiating over price" - 8.4.
"Before negotiating I plan my arguments to support my offers/counters" - 4.7.
"It is difficult for me to say no." - 5.5.
"I am afraid I under value myself" - 8.
"I am afraid that if I ask too much I'll be harshly judged" - 7.7.
"I am afraid of making offers that others might reject." - 8.1.
"I am afraid that others will consider me pushy or too aggressive if I negotiate price." - 7.3.
"I do not like competitive bargaining." - 8.7.
"I prefer cooperative negotiations to competitive ones." - 9.2.
"I do not know what to do at impasse." - 7.8.
"I am afraid of offending my bargaining partner." - 7.9.
"Relationship is more important to me than money." - 8.2.
These attitudes tend to show up when mediation styles of men and women are analyzed.
Carol Gilligan, in her book “In a Different Voice,” described a significant difference in how men and women think about conflict. She suggests that men think of conflict in terms of rights, but women consider conflict in terms of dynamic relationships. Thus, if mediation is a facilitated process, a woman's approach may be more likely to produce settlement. In choosing a mediator overall, if the case argues strongly for a rights-based approach mediation, this foundation will come more naturally to a man. If the mediation calls for an interests-based approach, women who may be more likely to look to female values of interpersonal connectedness, care, sensitivity and responsibility to the other party may be the more natural mediators. If there remains a preference for male mediators over female, Pynchon in her blog suggests that sometimes the reason may be a fundamental misunderstanding. Advocates choosing mediators in certain cases may believe that they need a mediator who will persuade the other party regardless of what the other party's lawyer thinks. That is, the mediator should overpower the opposition, exerting (what may be false) authority. That line of thinking would compel choosing the judge over the attorney, or the man over the woman.
Mediators Jan Frankel Schau and Nina Meierding, beginning from the premise that men and women tend to argue differently, have reviewed how negotiations and communications differ in mediation. They believe that "there are certain ways that men communicate that are distinct from 'a woman's voice.'" One difference is the use of language itself. Schau and Meierding suggest that women use conversations to build relationships, establish connections and share experiences. Men tend to share information. Men also may be more likely to utilize "ritual opposition," which is winning an argument purely through skill and logic. This tactic pays no attention to building any rapport, creating a relationship or allowing another party to save face, and thus it may be interpreted as a personal insult or attack. Gender differences also appear in the context of apologies. Men apologize, but generally only when something was their responsibility or their error. Women may apologize because they are trying to create a bond or restore a relationship, and men may misconstrue the apology assuming that the woman is accepting fault and taking responsibility. Finally, Schau and Meierding found, women are more likely to tell jokes about themselves when they are using humor, but men are more likely to tell jokes about others. Thus, to a man a woman may appear to be putting herself down and lacking in confidence in her use of humor about herself. But, to a woman, a man may be perceived as making a personal attack when he makes what he considered a joke in describing someone else's conduct. All of these observations are, again, generalizations that are by no means true for every man or every woman, but they provide decent clues on how to listen to the other gender, in mediation and/or negotiations.
These different ways of looking at conflict, and mediating to resolve a conflict, argue that skillful mediators may be women or men. In the area of arbitration, however, there seems to be more difference in perception.
The most striking disparity between men and women as arbitrators is in the international arbitration field. In 2009, a study found that only 4 percent of international arbitrators were women. While some of them were very busy and highly respected, the numbers were very small. Objectively, it would be difficult to point to anything a male arbitrator could consistently do that his female counterpart could not. But referrals in this arena continue to be made to males. This is true even when general counsel or the business decision-maker is a woman. The observations are consistent that women don't refer cases to other women. The exception, of course, is that referrals are made to the very small core group of females who have established themselves as international arbitrators. Perhaps the reasoning is that if a female decision-maker chooses a relatively untested woman as her arbitrator, and her client loses the case, the criticism could be far more intense than if she had chosen as her arbitrator one of those among the large group of male arbitrators. Whatever reasoning it is, it should be re-examined. Just as in the legal community overall, there is a significant supply of female arbitrators who are experts in their field.
Robi Ludwig, a psychotherapist and author, suggests other reasons why it may be so difficult for women to break into the arbitration business. In an article about the challenges facing women as bosses, she cited recent studies about the workplace, where three-quarters of men said they would rather work for a man than a woman. A quarter of women thought that their female bosses were backstabbers who had poor personal boundaries when it came to sharing their personal lives in the workplace. Another study found female bosses to be easily threatened, emotionally unpredictable or irritable. A study by the American Management Association disclosed that 95 percent of women felt undermined at some point in their career by other women. A group of German researchers found that women who reported to female supervisors had higher rates of depression, headaches, heartburn and insomnia than they would have had if there bosses were men.
Hopefully, however, we are in a process of evolution. It remains true that high management positions are scarcer for women than for men. It is certainly possible that female bosses may legitimately feel more threatened and less generous about sharing their positions of power in part because there are fewer opportunities for them. Unfortunately, sometimes women who reach high positions try to manage like male counterparts, but it may not work out well because the same management style will be perceived differently and less generously toward the woman. But because there is evolution as more women break the glass ceiling, it is highly likely that women will increasingly gain confidence in their own management styles. In the meantime, female arbitrators, who must be chosen by decision-makers who (even if they are also women) have feelings as outlined above in the earlier paragraph, bear the brunt of these problems. People, whether men or women, who feel that female bosses are poor managers may be unlikely to choose female arbitrators to decide an important case.
The agencies administering arbitrations have been working hard to promote diversity in their rosters of arbitrators. Anecdotally, at least, it appears that women are making more and more progress as advocates in arbitration, and women are beginning to lead arbitration practice groups in larger firms. Many of these same larger firms, however, do not encourage partners, whether men or women, to sit as arbitrators. Conflicts of interests can arise, billable rates for arbitrators are often less than rates for advocates and the neutrality required of an arbitrator is more difficult to obtain while continuing to work inside a law firm. If, to become a successful arbitrator, women advocates must retire from their law firms, it will still be a while before women become a numerically strong force in the arbitrator community. In the meantime, that transition will become easier if both men and women who are deciding who to choose to arbitrate a case, more consciously consider women with excellent backgrounds but minimal experience as arbitrators. The more this happens, the more prevailing perceptions will change, all for the better.
Joseph D. Garrison, is the managing shareholder of Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C., , where he focuses his practice on employee rights. Mr. Garrison is increasingly active as a mediator and arbitrator, particularly in employment cases, and is listed as a mediator and arbitrator on AAA's employment panels. In 2009, he was appointed to AAA’s Board of Directors. He can be contacted at email@example.com.
 Gregory Tillett, Resolving Conflict: A Practical Approach (2006).
 Victoria Pynchon, Women’s Attitudes, Skills and Fears About Negotiation, Negotiation Law Blog (June 2010), available at http://www.negotiationlawblog.com/she-negotiates/womens-attitudes-skills-and-fears-about-negotiation/ .
 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1993).
 Jan Frankel Schau & Nina Meierding, Negotiating Like a Woman – How Gender Impacts Communication Between the Sexes, mediate.com (May 2007), http://www.mediate.com/articles/schaumeierding.cfm .
 Michael D. Goldhaber, Too Few Women among Top International Arbitrators, law.com, June 30, 2009, available at http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202431880807&slreturn=1 law.com.
 Robi Ludwig, Bad Female Boss? She may have Queen Bee Syndrome, Today.com (April 12, 2011), http://today.msnbc.msn.com/id/42549761/ns/today-relationships/t/bad-female-boss-she-may-have-queen-bee-syndrome/#.T1dttGC1njU .