Women in Dispute Resolution: Parties, Lawyers and Dispute Resolvers: What Difference Does “Gender Difference” Make?

Volume 18 No. 3

By.

Introduction: Gendered Justice?

What does it mean to talk about or study “women in dispute resolution” when women play so many different roles in dispute resolution—as party-disputants, lawyer-representatives, witnesses, experts, negotiators, mediators, arbitrators, special masters and other forms of “dispute handlers?” Any dispute involves many of these roles, now played by people of both genders who interact with each other in different substantive contexts, physical sites, and with a great variety of gender composition in groups large and small. In this essay I review how I, a feminist scholar and practitioner in the fields of dispute resolution and gender and law studies, have evolved, as has the underlying research, from a firm conviction about existing gender differences in dispute resolution behaviors to a more nuanced and contextualized approach to the study and practice of gender in dispute resolution. Gender may matter in dispute resolution, but other factors, especially in such an interactive field of behavior, may trump or smooth out or make more complex any gender differences in the pursuit of dispute resolution. In short, gender matters, but context may matter more.

Twenty five years ago I wrote an article, “Portia In a Different Voice: Speculations on a Women’s Lawyering Process,”[1] which controversially claimed that with the addition of more women in the legal profession, legal processes would be likely to change, and more use of problem-solving, relational, contextual, and “caring” methods of dispute resolution would alter the way in which legal, social and economic problems would be solved. This article, which adapted and applied the even more controversial work of psychologist Carol Gilligan,[2] argued for a “different” approach to legal problem solving and dispute resolution based on notions of care and connection for the parties engaged in disputes, the possibility of less brittle and binary conclusions of right and wrong and legal propriety, and a more “mediated” approach to problem solving. The short-cut example of all this came from the classic “Heinz dilemma” example from Gilligan’s work, itself derived from the work of moral development psychologist Lawrence Kohlberg, in which Heinz needs a drug to save the life of his wife but he cannot afford it. The question posed to subjects of the moral dilemma study was, is it morally permissible for Heinz to steal the drug? Gilligan reported on gendered responses to this dilemma. Jake, the boy, using rules and legal reasoning, balances property rights against human needs and treats the problem like an “algebraic equation,” requiring a single solution.[3] Amy, the girl, prevaricates and looks for other solutions. I argued then, that like a “bad” law student, Amy fought the hypo requiring a single judgment or answer, and instead she looked for both processes and outcomes that could meet the needs of all the parties involved in a dispute. Couldn’t the parties just sit down and talk about it, perhaps negotiating an installment payment plan or some other solution? Wouldn’t women try to resolve such difficult legal, social and human dilemmas differently?

This application of controversial empirical and theoretical work in gender studies to law, at the same time as modern “alternative” dispute resolution was gaining ascendancy in both court systems and private dispute resolution, continues to be studied and argued about, as claims of gender difference or similarity in dispute resolution behavior and legal problem solving continue, in my view, without definitively clear, robust and conclusive findings.

This essay reviews some of the continuing efforts to determine whether gender has any significant or predicable impact on dispute resolution behavior. I continue to think this is an interesting, but inconclusive question, especially because dispute resolution is itself an interactive process involving parties, representatives (lawyers) and dispute resolvers or facilitators (negotiators, mediators, arbitrators and judges, among other roles), so that the mix or context of gendered participants interact with each other and also with the site (court, private mediation, quasi-private arbitration, negotiation) and subject matter of any particular dispute. Although I continue to think that gender somehow matters, sometimes, in some places, more recent research indicates that the difference that gender difference makes is quite variable, depending on case type, context, role of participant (e.g. agent or principal) and now perhaps, different generations of disputants and disputes.[4]

Parties in Disputes

Much of the work on gender in negotiation or legal disputing assumes that disputants, as principal parties, are much affected by their gender. Women are less likely to view disputes and transactions as negotiable events, as Linda Babcock and Sara Laschever noted in “Women Don’t Ask: Negotiation and the Gender Divide.”[5] Women are also more likely to compromise or give in to the other side, especially when there is some relationship (friend, family member, repeat player, or workplace superior[6]), therefore requiring a slew of self-improvement advice for how to be better and stronger negotiators,[7] although when closely examined, most of the advice doled out in such books is not much different for women than what is offered to all in our negotiation canon in such works as “Getting to YES.”[8] Empirical work on women as direct parties in disputes is actually far more complex, with great relevance for what parties want in disputes, and what they ask their lawyers to achieve in represented negotiations, mediations or arbitration, as well as how they behave themselves as parties. Perhaps most important in such studies is to consider if women are negotiating or disputing directly for their own interest (where they are often perceived to be less demanding, conciliatory and compromising) or whether they are working in a more representative capacity (such as a manager of employees, agent for clients, nurse for patients, or mother on behalf of children’s needs), where they are also credited for actually having different, and sometimes “better,” leadership, problem-solving or representative skills.[9]

Recent work on women as parties in disputes, both in mediation and in court settings, indicates that consistent with procedural justice findings generally, process matters independent of outcomes. In one of the most rigorous studies to date of mediation, Tamara Relis has found that women as litigant-parties in mediation processes were more concerned with emotional, not just compensatory, aspects of their mediated cases, were more likely to want alleged harm doers (defendants) to attend mediation sessions and to hope for direct communication with other parties, not just about legal issues, but about “extra-legal” aspects of their disputes.[10] In an earlier study designed to measure whether both women and minorities fared differently in different dispute resolution processes, researchers in rigorously paired cases in litigated settings with court-annexed mediations with different race, ethnic and gendered dispute resolvers (judges and mediators). Among the complex and varied findings of this study was the interesting result that although many women actually fared better in mediation sessions (in relatively small claims matters) they often preferred court adjudication.[11] This was some confirmation of Trina Grillo’s important critique of mediation as being an unfair process for disempowered women many years ago.[12] The perception of fairness or other attributes of a dispute resolution process may turn out to be more important than the actual outcomes themselves.

For many years I have been wondering and teaching about the interesting paradox posed by contradictions in both scholarly and popular views of differences in disputing processes. Grillo, Penelope Bryan, Martha Fineman and others have long argued that in situations of informal and non-public or not strong law-enforcing dispute processing (e.g., negotiation, mediation), women are “disempowered” and do less well than they might in more formal, rule and procedure based settings such as full court adjudication (primarily in family and employment matters). [13] But, researchers outside of law have empirically demonstrated that in fact women are more effective at speaking the language of problem solving which is particularly used in such informal settings as mediation. Deborah Tannen’s bestselling books on gendered communication in both the workplace and in relational contexts demonstrate that women are more forthcoming in communicating their needs, desires and ideas for problem solving than are men.[14] Thus, in at least some of those informal dispute resolution settings, women are actually more comfortable with the language of psychological needs and problem solving and also potentially more patient. In Tannen’s work, men often are impatient to get to a quick and efficient resolution, rather than spend more time on “relational” work or looking at many sides to the problem. Relis’ recent research comments on this, noting that some women plaintiffs are less comfortable talking and advocating strongly in mediation settings, but that female lawyers are more likely to engage in problem solving and collaborative behavior in mediation settings, suggesting that the role that gender plays in dispute resolution is strongly tied to role (professional), as well as to place or site of dispute resolution.[15]

More recent research on women as parties to negotiation or as parties in settings where others represent them recognize more rigorously that context (type of case and setting) and the interactive expectations of opposite parties can affect what happens in a negotiation greatly, so that there is great variance in “performance” in negotiated settings. Borrowing from work in cultural studies, “performativity” in dispute resolution can depend on “triggers,” so that women negotiators working with each other may produce different behaviors than if negotiation dyads are mixed and someone (male or female) makes assumptions of nurturing, problem-solving behavior, or in other studies, overly “aggressive” behavior by women. Expectations of stereotypes may “trigger” particular reactions, but with less stereotyping negotiators are freer to just use whatever strategies and problem-solving skills they have. The point here is that stereotypic assumptions produce reactions (both ways) and that more modern negotiators and dispute resolvers can be taught to read, defuse or “turn” (Deborah Kolb’s term) these stereotypic behaviors into more productive means of dispute resolution.

Knowledge of these stereotypes is important, but newer research of younger generations of negotiators, or those in particular professional contexts such as lawyers, business people, real estate agents, or brokers, seems to be indicating that change is afoot. Neither gender nor negotiation behaviors are immutable. Professional role, time, levels of education, training, preparation, client relations, and dispute context may trump whatever gender variations might seem to some to be “natural” or innate. Gender difference research for decades has debated, without successful conclusion, the relative weights of “nurture” (socialization and education) and “nature” (biological forces) in forming our understandings of how gender operates, both conceptually and behaviorally. As more women enter professional roles in dispute resolution, more training, experience and knowledge of these research studies may be dampening the perceived earlier gender differences, at least in some contexts. In some other contexts, gender difference may still be salient.

Professionals in Dispute Resolution: Lawyers and Other Representatives

Carol Gilligan’s work in the 1980s produced many studies seeking to discern if there were gender differences in different professions, especially the legal profession, and in different decision-making contexts. One of her students studied differences in ethical decision-making by male and female lawyers and learned that when lawyer ethical rules were relatively clear, there were little to no differences in how male and female lawyers decided what was ethically mandated. But when the rules were more ambiguous, such as whether to turn over adverse evidence to a lawyer on the other side of a case, or when actual harm to a person was involved, such as custody issues for children, women lawyers were slightly more likely to consider “justice” to the other side, rather than “pure” zealous advocacy.[16] Later studies by Gilligan have demonstrated some merging of gender differences, that is, more girls moving to the male (clearer “justice” rule-based) mode of decision-making,[17] while a smaller core of girls and young women remain committed to a “care” and relational approach to moral decision making and problem solving, though studies also demonstrate that newer generations engage in more “cross-over” or context specific forms of reasoning.

Earlier work on women in business and other professional settings demonstrates that to the extent women have something particular or different to offer, there must be a “critical mass” (variable in different sectors) for the message to be accepted on its own merits and be “detached” from a gendered representation.[18] Studies of both law students in negotiation classes and now a few of lawyers confirm that negotiated outcomes do not differ by gender. But perceptions of results achieved (e.g., women are more self-doubting and critical, are more likely to take negotiation courses pass/fail) or assumptions that stereotypic behavior is expected continue to document differences between perceptions and assumptions and the actual outcomes and behaviors in negotiation.[19]

Of the more recent studies on lawyer behavior, particularly in the mediation setting, Relis suggests that women lawyers, particularly defense counsel in medical malpractice cases, had greater “extra-legal sensitivity” (the need for non-compensatory items, like apologies, etc.) and concern for parties on the other side of cases than did male attorneys. But Relis also found that more facilitative female mediators, especially non-lawyer mediators, tended to be overpowered by aggressive male litigators in mediation settings, suggesting that some of the earlier observed gender differences are not yet gone.[20] Relis’ study also found that female plaintiffs were more likely to be overpowered by male mediators during mediations than male plaintiffs, demonstrating that the interaction of the gender of the party, lawyer or representative and dispute manager professional (mediator or judge) is complex. It often involves, as Relis eloquently states, “differentially experienced parallel worlds” in mediation by parties, lawyers and mediators, where gender differential is still part of the experience.[21]

Professionals in Dispute Resolution: Judges, Arbitrators and Mediators

When inquiring about gender differences in dispute resolution, people are often concerned most about the gender of dispute resolution professionals who may decide or manage their cases. Both clients and legal scholars want to know, does the gender of the judge, mediator or arbitrator make a difference? A vast scholarly body of work has explored whether the gender of a judge affects both the outcome and the process of judging in adjudicative settings. It is difficult to summarize this literature in a few words, but generally most studies have confirmed little difference by gender, except in a few gender-salient areas – family law, civil rights, employment, criminal law, and domestic violence, and not always in expected directions. Women judges, for example, are sometimes harsher in sentencing female criminal defendants than are male judges, unless there are children present, which can sometimes make a difference. Political party or other background and demographic factors have been shown to have a much greater impact on judicial outcomes than gender alone.[22] 

In my own recent work, however, building on the path-breaking analysis of some of my colleagues who comprehensively studied differential immigration asylum outcomes throughout the United States, the gender of the immigration judge proved to be one of the most robust findings in a study of gross disparities (mostly by region) in the granting of asylum. An applicant for immigration asylum had a 44 percent greater likelihood of being granted asylum if the immigration judge was female.[23] These data demonstrate the importance of case type on gender-differentiated behavior. Women administrative judges seemed to be more sympathetic to claims of persecution, extreme hardship and family unification, and asylum applicants were likely to fare better with all judges if they already had dependent family members living in the . Without belaboring this one context here, it is clear that case-type and legal standard (asylum is both a difficult, and rigorous, but somewhat discretion-based legal standard where individualized fact-finding is crucial to the decision) can make gender more salient than in some other areas. Gendered judicial behavior thus continues to be rigorously studied by social scientists as the number of women judges increases at all level of court in the and abroad as well.

It has been far more difficult to study what, if any, gender differences or effects there are in the mediation and arbitration contexts, in part because so much mediation and arbitration is confidential and not documented by reported decisions. Though the numbers of female arbitrators and mediators continues to grow, some areas, such as international commercial arbitration and the appointment of special masters/mediators for federal courts and mass and class action litigation, are notoriously known for their underrepresentation of women as dispute managers.

In a rare comparative and rigorous study of mediation and litigation that explored the gendered experiences of parties, lawyers and dispute professionals, Relis found that there were gendered distinctions among mediators and lawyer and party preferences. Although many parties, particularly female plaintiffs, were looking for direct communication opportunities, as in facilitative settings, seeking more than compensatory outcomes, the lawyers were much more likely to want evaluative mediators. Male lawyers were more likely to manipulate or disfavor mediation, and female mediators (particularly non-lawyers) were more likely to use more facilitative methods. Thus, Relis’ study, though limited in size, scope and legal jurisdiction, paints a rich and variegated picture of how many variables impact the question of gender difference in dispute resolution: parties and lawyers may have different goals and purposes when they are engaged in dispute resolution, dispute managers/handlers and resolvers may use a wide variety of different techniques, depending on the site (court, private, public, hybrid or pure form of dispute resolution), case type and their own personal styles (facilitative or evaluative).

Though the New Mexico study discussed above[24] also revealed some preferences for third-party neutral ethnic or gender “matching” (parties preferring judges, mediators or other dispute resolvers of their own gender or ethnic or racial demographic), such ideas or preferences of gender matching are clearly not possible in complex cases of diverse genders, which may involve many males and females, as parties, lawyers and dispute professionals in the room in a large case. Data on these complex cases with many interactive factors are needed but extremely difficult to obtain. It is hard to know exactly what gendered justice would look like in many kinds of cases, though in my own experience, female plaintiffs in arbitration in the mass medical product Dalkon Shield litigation, certainly a “gender-salient” case type, were clearly happy to have a female arbitrator whom the parties believed would at least understand their literal pain and suffering.[25]

What Does it Mean, and Where Do We Go from Here?

As both a scholar and practitioner of dispute resolution and gender issues in the law, I remain continuously fascinated by the issues, even though, as I suggest here, research to date does not consistently support universal gendered differences in dispute resolution practice. As a rigorous social scientist and an eclectic (using both facilitative and evaluative techniques where appropriate) and pragmatic mediator and arbitrator, I think that gender difference sometimes matters, when the case is gender salient (medical, physical, emotional harms, discrimination, family matters, immigration, perhaps certain welfare claims, etc.). But I also know that so many other variables may trump, modify or make more complex the role that gender difference may play in the resolution of any dispute that I fear we often oversimplify the role that gender may play in dispute resolution. When one looks at many modern dispute resolution settings, in which litigants, parties, witnesses, lawyers or other representatives, experts, and then different kinds of third-party neutrals in the room gather, we are now more likely than when I first started in this field over 30 years ago to see more gender diversity in the different axes of possible interactions. Still, it is difficult to assert any simple line of behavior, causation, analysis, process or outcome that will be gender determined. Clearly, it would be important to study all of this, but I doubt we would be able to develop sufficiently rigorous “controls” for all of the possibly interacting variables.

My old friend, mediator Gary Friedman, likes to say that “the law is certainly relevant in any mediation, but it may not be determinative.”[26] I think that gender differences, and variations between and within genders, may be relevant or salient in any dispute but, when interacting with other variables, they are not likely to be as determinative as we once thought. All of this, of course, depends on case type, jurisdiction, type of dispute resolution, and, most importantly for me, the continuing issue of the need for continued additional gender representation among those who not only have disputes, but also those who “do” dispute resolution. Without a fair and just representation of women lawyers, representatives, mediators, arbitrators, negotiators and judges, I do know that not all parties would have a fair chance of justice, whether gendered or not. Having professional dispute resolvers and professionals of both genders (and of racial, ethnic and class diversity as well) is essential for democratic representation of the parties in disputes and for the possibility of seeing that how we resolve disputes may be different and depend on greater diversity of ideas for how to solve problems, depending on who is actually there to participate.

Carrie Menkel-Meadow is Chancellor’s Professor of Law at the of , of Law and A.B. Chettle Professor of Law, Dispute Resolution and Civil Procedure at . She is the co-author (with Lela Love, Andrea Schneider and Jean Sternlight) of “Dispute Resolution: Beyond the Adversarial Model” (2nd ed. 2011, Wolters Kluwer Law and Business); “Negotiation: Processes for Problem Solving” (2006, Aspen Wolters Kluwer) and “Mediation: Practice, Policy and Ethics” (2006, Wolters Kluwer), among many other books and articles. She was the first recipient of the Section of Dispute Resolution Award for Outstanding Scholarly Work in 2011. She can be reached at cmeadow@law.uci.edu.


[1] 1 Women’s L. J. 39 (1985).

[2] Carol Gilligan, In A Different Voice: Psychological Theory and Women’s Development (1983).

[3] at 25-32.

[4] Carrie Menkel-Meadow, Negotiating with Lawyers, Men and Things: The Contextual Approach Still Matters, 17 Negotiation J. 257 (2001); Andrea Schneider, Catherine H. Tinsley, Sandra I. Cheldelin & Emily Amanatullah Likeability v Competence: The Impossible Choice Faced By Female Politicians, Attenuated by Lawyers, 17 Duke J. Gender & Law & Policy (2010); Catherine H. Tinsley, Sandra I. Cheldelin, Andrea Kupfer Schneider & Emily T. Amanatullah, Women at the Bargaining Table: Pitfalls and Prospects, 25 Negotiation J. 233 (2009).

[5] Linda Babcock and Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide (2003).

[6] For a good, if somewhat dated, literature review, see Carol Watson, Gender Differences in Negotiating Behavior and Outcomes: Fact or Artifact, in Anita Taylor & Judi Beinstein Miller (eds.), Conflict & Gender (1994).

[7] See e.g., Deborah Kolb, Judith Williams & Carol Frohlinger, Her Place at the Table: A Women’s Guide to Negotiating Five Key Challenges to Leadership Success (2004); Lee E. Miller & Jessica Miller, A Women’s Guide to Successful Negotiating (2002); Elizabeth Austin & Leslie Whitaker, The Good Girl’s Guide to Negotiating: How to Get What You Want at the Bargaining Table (2001); Harriet Rubin, The Princessa - Machiavelli for Women (1997).

[8] Roger Fisher, William Ury & Bruce Patton, Getting to YES (3rd ed. 2011).

[9] Deborah Kolb & Judith Williams, Everyday Negotiation (2003); Deborah Kolb, Women’s Work: Peacemaking Behind the Scenes, in Kolb & Jean Bartunek (eds.), Hidden Conflict in Organizations: Uncovering Behind the Scenes Disputes (1992); Hannah Bowles & Kathleen L. McGinn, Claiming Authority: Negotiating Challenges for Women Leaders, in David Messick & Roderick Kramer (eds.), The Psychology of Leadership (2005).

[10] Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (2009).

[11] Gary LaFree & Christine Rack, The Effects of Participants’ Ethnicity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases, 30 Law & Society Rev. 767 (1996).

[12] Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545 (1991).

[13] ; Penelope Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 L. Rev. 441 (1992); Martha Fineman, Dominant Discourse, Professional Language and Legal Change in Child Custody Decisionmaking, 101 Harvard L. Rev. 727 (1988).

[14] Deborah Tannen, You Just Don’t Understand: Women and Men in Conversation (2001); Deborah Tannen, Talking From 9 to 5: Women and Men in the Workplace: Language Sex and Power (1995).

[15] Relis, supra note 10 at 26.

[16] Rand Jack & Dana Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).

[17]  In my own favorite example, respondents are asked whether moles who have worked all winter to dig their warm and comfortable hole in the ground should permit less industrious and prickly, but cold and homeless, porcupines to enter their “home” in the dead of winter. This has served as an excellent test of different legal and justice principles, -- property, labor, desert, social welfare, care (and problem-solving—cover the prickly part of the porcupines with towels, help them build their own space, etc.).  See Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism and Legal Ethics, in Stephen Parker & Charles Stampford (eds.), Legal Ethics and Legal Practice (1995).

[18] Rosabeth Kanter, Men and Women of the Corporation (1977).

[19] See e.g., Charles Craver, The Impact of Gender on Clinical Negotiation Achievement, 1990 Ohio St. Dispute Res. J. 6 (1990); Lloyd Burton, Larry Farmer, Elizabeth D. Gee, Lorie Johnson & Gerald R. Williams, Feminist Theory, Professional Ethics and Gender Related Distinctions in Attorney Negotiating Styles, 1991 J. Disp. Res. 199 (1991); Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harvard Negotiation L. Rev. 143 (2002); Cf. Sandra Farber & Monica Rickenberg, Underconfident Women, Overconfident Men: Gender and Sense of Competence in a Simulated Negotiation, 11 Yale J. of Law & Feminism 271 (1999).

[20] Relis, supra note 10, at 58-61; 217-223.

[21] at 220-225.

[22] Orley Ashenfelter, Theodore Eisenberg & Stewart Schwab, Politics and the Judiciary: The Influences of Judicial Background on Case Outcomes, 24 J. of Legal Studies 257 (1995).

[23] Carrie Menkel-Meadow, Asylum in a Different Voice? Judging Immigration Claims and Gender, in Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip Schrag (eds.), Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (2009). Though a recent study failed to confirm these results in the Canadian immigration system, see Sean Rehaag, Do Women Refugee Judges Really Make a Difference? An Empirical Analysis of Gender and Refugee Outcomes in Canadian Refugee Determinations, available at ssrn.com/abstract=1963927, demonstrating that gender judging, like gender behavior in all dispute resolution, may be more affected or “trumped” by other variables, as here, in different legal systems and standards.

[24] See note 10, supra.

[25] See my description of this in Carrie Menkel-Meadow, Taking the Mass Out of Mass Torts: Reflections of a Dalkon Shield Arbitrator on Alternative Dispute Resolution, Judging, Neutrality, Gender and Process, 31 Loyola L.A. L. Rev. 513 (1998).

[26] Gary Friedman & Jack Himmelstein, Challenging Conflict: Mediation Through Understanding (2008).

 

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