chevron-down Created with Sketch Beta.
March 06, 2013 Practice Points

Do I Look Fat in This Profession? Escaping Gender Bias in ADR

By Victoria Pynchon

When I was a young associate in a major national law firm, my male mentor explained office politics to me with a story.

“A professor was showing his class a chart of the species, at the top of which was man. A student raised her hand, asking why man was at the top. ‘Tortoises are heartier,’ she said, ‘cheetahs more swift, and grizzlies more ferocious. So why are we at the top?’

“‘Because,’ said the professor, ‘man made the chart.’”

It’s natural to favor our own and to negatively stereotype the “other.” Stereotypes are quick and necessary cognitive shortcuts that permit us to decide whom to trust in circumstances where misplaced friendly feelings could cost us our lives.

Stereotypes are the basis for corporate policies against nepotism. They account for the hiring and pay of lawyers, doctors, mediators, and arbitrators. They’re even the reason why there are more men than women musicians in your local symphony orchestra.

Implicit Bias and Blind Orchestra Auditions You’d think an orchestra would hire its members based solely on talent, execution, and excellence. You wouldn’t think that gender plays a role. But it does.

Women musicians complained for decades that they weren’t fairly represented in the world’s top symphony orchestras. They said their paltry numbers were the result of gender discrimination. The orchestras said “nonsense.”

The women said “prove it,” asking that auditions take place behind a screen to prevent any factor other than mastery to determine hiring decisions.

For everyone but the women, the results were shocking. In a study of these “blind” orchestra auditions, Harvard and Princeton professors found that the use of a screen increased the chances that a woman would move past the first round of auditions by 50 percent. In the final rounds, the opportunity for women to be chosen increased by 300 percent. In the next 20 years, the percentage of women musicians in the world’s best symphony orchestras went from 5 percent to 36 percent.

Deny It! Deny It! We have a propensity to deny hard facts.

Even though the election of a biracial man to the Presidency has uncovered some vile open racism, most people are proud to say they are not prejudiced. The idea that we’re all “post-racial” and “post-gender” now, however, clashes with the facts on the ground.

That we do discriminate—often without thinking about it—is beyond contest. We prejudge people based on their gender, race, height, age, color, school affiliation, national origin, accent, religion, and geographic locale.

We associate women with children and family; men with business; African-Americans with basketball and rap music. Look at Harvard’s Project Implicit to find your own prejudices revealed by the implicit association tests offered there.

As a childless woman who has spent the vast majority of her life in the law and business, and who has identified as a feminist (on and off) for the past 40 years, I nevertheless found at Project Implicit that I moderately associate men with business and women with family and children.

Knowing that made me examine the way I made referrals and whom I called when I needed a quote from an expert in my blog. My default was to call men. Now, I consciously split my calls evenly between men and women, and I make an effort to find Asian, African-American, and Hispanic experts as well.

The Wage Gap Applies to You Here’s another indisputable factual proposition. Business and professional women are paid less, moved into leadership roles less often, and hired to speak or act in positions of authority on fewer occasions than are their male peers for no reason other than their gender.

Why this statement remains controversial in the face of repeated testaments to its accuracy is not surprising. No one wants to be at the top of the chart just because he drew it. And that is particularly true in the United States where our highest collective core value is merit, not lineage.

We all want to believe we “made it” because we have special talents that we worked hard to put to good use. I want to believe it. And you want to believe it.

So we weave our own stories of success, eliding the special circumstances that permitted us to achieve. We minimize the role social capital played in getting our careers launched (that summer job at the New York Times we heard about from our uncle who plays golf with the City Editor); the contribution of others to our victories—the clerical workers who corrected our grammar and syntax; the messengers who hopped on motorcycles to get our last-minute briefs filed on time; the paralegals who organized our disorder; and the education we received, if we are boomers, practically free of charge.

Why Women Are Not At the Top of the Chart Every year, the California legal newspaper, The Daily Journal, publishes a list of California’s top neutrals. This year, 15 mid-market ADR Services, Inc. neutrals made the list, of which only three were women: 25 percent. JAMS, which serves the top of the market, is 80 percent male and JAMS women accounted for only 12 percent of JAMs’ “best neutrals” in California.

That these statistics closely mirror the number of women equity partners in the AmLaw 100—fifteen percent—should surprise no one who understands in-group bias. Frankly, given women’s understandable fear of recommending other women (what if they fail?) it’s surprising we’ve made the inroads into ADR that we have.

The number of women chosen to arbitrate or mediate a business or financial dispute often dwindles to zero. I have yet to find an AmLaw 100 commercial litigator (including my own husband) who has ever hired a woman mediator.

Here are the most common reasons I’m given when I ask why:

“I don’t know any woman mediators.” (even though he is talking to me) “I’d use a woman if I had a case calling for compassion.” (I have heard this statement repeated so often by so many that I have the following stock response––do you knowany women litigators?) “Women can’t close.” “My [male] client wouldn’t be comfortable with a woman neutral.” “I need someone who can twist arms.”(as if persuasive argumentation requires actual, rather than virtual, strength)

Benevolent Stereotypes Can Be Overcome Most of these statements about women neutrals evidence the existence of “benevolent” stereotypes, consistent with my own 1950s and 1960s acculturation that included the “fact” that women were soft, warm, and caring.

There’s no shame in having once believed racial, ethnic, or gender stereotypes. I grew up in a segregated city in a segregated neighborhood at the dawn of the civil rights movement. I had no way to “reality test” the “facts” that I was taught, such as “Blacks had rhythm.” I did not have a class with an African-American student until I went to college.

The problem with the “good” stereotypes that my parents taught me is the way in which they presume the people described cannot act outside them. When we expect women to be compassionate, we assume they won’t be up to the task of cross-examining a difficult witness or negotiating a hard bargain. When we assume all men are aggressive, we overlook the softer skills of male lawyers that might help break a negotiation impasse.

What, Then, Is to Be Done? In a recent article at Inside Counsel, Gender Diversity in Dispute Resolution, the Role In-House Counsel Can Play, Kim Taylor, JAMS Senior Vice President and COO, and Margaret Shaw, a JAMS neutral, recommend that ADR providers such as JAMS continue to raise the gender diversity issue with clients; make concerted efforts to increase the ranks of women and minority neutrals through concentrated recruiting efforts; ensure gender/minority balance in all marketing efforts; and provide support for women who want to branch out into specialty areas that tend to be dominated by men.

This is a mighty “to do” list, but it does not put power into the hands of the individual mediator or arbitrator. Here, then, is my list of things to do that will make men and women stop thinking of a woman neutral first as a woman, rather than first as an accomplished, talented, and effective mediator or arbitrator who happens to also be female.

If we want to be in control of our own destiny and we’re operating in a male dominated profession or specialty, we have to do what our male colleagues do to develop business—join the bar associations our market joins, go to the charitable events our market goes to, dress the way our market likes to think it dresses (business suits), read the journals our market reads, write for the publications our market considers authoritative, join the committees who have the power (finance, management), and speak at the continuing education courses our market patronizes.

How we network at these functions—how we speak and what we write to promote our neutral practices—makes a difference.

Leadership guru Gloria Feldt, author of No Excuses: 9 Ways Women Can Change How We Think About Power, stresses the importance of being gender bilingual. “Women,” says Feldt, “have to understand how to talk like men without losing their authenticity.” When I ask if that means reading the sports pages or learning how to play golf, Feldt says it might, but warns that those are stereotypes too.

“Women have come a long way,” she continued. “We’ve opened every door at least once, but we’ve been stuck at less than 20 percent in top leadership roles across every sector for the last two decades. The next leap forward for women will come only when we attain a fair and equal share of economic power.”

How do we do that?

“We go back to being bilingual,” Feldt counsels. “The most effective means of communicating with men is to use simple declarative sentences. We need ask directly for what we want rather than hoping our indirect statements will be correctly interpreted.”

I know I don’t do this enough, and Feldt admits that it’s not easy for her either. Sometimes, all we need is a phrase. Here’s one I came up with in conversation with Feldt: “I’d love to have your law firm’s mediation business. What can I do to accomplish that?”

“Perfect.” says Feldt. “Women tend to recoil at the idea of aiming for wealth and power without a larger purpose. Men choose to accumulate wealth and power for their own sake. Women generally want to believe there will be a positive consequence to their economic success. When I teach leadership, I remind women that power and money are amorphous; they become what we do with them.

“By choosing power,” she says, “We change our relationship with it. That enables us individually and collectively to go forward in an equal partnership with men toward solutions that benefit everyone.”

“It’s like a hammer,” she concludes. “You can build or you can break something apart. It’s what you do with it. Once women realize that money and power can be used for good rather than as oppressive power over others, they drop their resistance.”

We Don’t Want Our Wives There

One final anecdote from the early days of women in the law will suffice to drive home the point that our failure to occupy seats of power in our professional life is too often caused, in large part, by outmoded views of what is an appropriate place for women.

Back in the early 1980s, my extremely liberal business litigation bosses in Sacramento frequented a men’s only club, the Sutter Club. I once asked the senior-most partner how he could square his ACLU membership with his Sutter Club membership.

His response? “Vickie, it’s not that we don’t want you there. It’s that we don’t want our wives there.”

If you think that attitude is a thing of the past, be aware that a recent study has shown that men with non-working wives tend to devalue women more than their colleagues with working spouses. As staff writer Meghan Casserly of Forbes recently wrote,

In the paper Marriage Structure And The Gender Revolution In The Workplace, researchers illustrate how employed men with stay-at-home wives tend to “exhibit attitudes, beliefs, and behaviors that undermine the role of women in the workplace.” Among other things, they have a negative view of the very presence of women in the office, large percentages of female employees and female leaders. But the most troubling finding was that men whose wives don’t work “deny, more frequently, qualified female employees opportunities for promotions.”

So, we still have our gender work cut out for us. Others might deny it, but we cannot afford to do so ourselves. If we want to be viewed as commercial lawyers and hardnosed, pragmatic business neutrals first and ladies second, we need to quite publicly walk the walk and talk the talk. We also need to fearlessly recommend one another as able negotiators of complex commercial disputes without worrying that a single mediocre performance by a woman will taint all women, including us. We need to seriously consider all qualified candidates to arbitrate or mediate a particular case, regardless of gender, race, or ethnicity, and we need to get past our implicit biases and stereotypes.

And, we need to remember that no well-behaved woman ever made history.

Keywords: woman advocate, litigation, mediation, neutral, gender bias, ADR