International Women’s Day – gender issues in dispute resolution

International Women’s Day is an opportunity to reflect upon what we know about gender equity issues in the dispute resolution field.

Women's_March_(VOA)_03

By Brian Allen, Voice of America – http://www.voanews.com/a/photo-gallery-women-march-worldwide/3686038.html, Public Domain, https://commons.wikimedia.org/w/index.php?curid=55207738

The gender factor in dispute resolution

Carrie Menkel-Meadow has long been interested in the question of the contributions that women make to the dispute resolution field. In 1985 she predicted that increased numbers of women lawyers would shape the profession in a more problem-solving, relational, contextual and caring direction. In 1998 Juliana Birkhoff argued that gender permeates conflict dynamics at the societal and individual level. In 2000 Leigh Goodmark wrote an article about the danger that dispute resolution processes posed for some women, citing an example of a woman survivor of family violence being disadvantaged in a mediation process that was controlled by her husband. Rachael Field wrote about process imbalances in Family Law Mediation that women should be aware of in 1998. Hopefully the extensive work that has been undertaken to make dispute resolution processes safe for people affected by family violence means that women are no longer at such a striking disadvantage. Tamara Relis’ 2009 work is an insightful investigation of the effect of gender in mediation, within the context of complexity of factors. In 2012 Menkel-Meadow noted that the question whether gender is a significant indicator of dispute resolution behaviour remains a live issue. She concluded from her summary of evidence that it’s difficult to unravel gender factors from other interpersonal dynamics and draw any certain conclusions.Nonetheless, gender is bound to play some part within dispute resolution processes, as it does in other human interactions.

Gender bias in dispute resolution

Women appear to be well represented in the dispute resolution profession and academy, which may reflect some gendered attraction to the interpersonal relational focus of dispute resolution theory and practice. This does not, however, mean that women are treated equitably in obtaining work or pay within the field.

There is some evidence of gender bias in selection of dispute resolution practitioner. For example, a study by Gina Brown and Andrea Schneider found that where selection of practitioner occurred through mediator provider lists, 47% of selections were women, compared to only 29% when selection relied upon networking. Women arbitrators were only selected 20% of the time by either manner of selection. Furthermore, women advocates selected women mediators 37% of the time, whereas male advocates selected women mediators only 16% of the time.

In 2013 Victoria Pynchon provocatively wrote a piece titled “Do I Look Fat In This Profession? Escaping Gender Bias in ADR.” Among other things, she discusses unconscious bias and Harvard’s Project Implicit, which is a tool to measure prejudices. Self-tests can equip us to adjust our own practices to overcome our own biases. The strong gender biases in arbitration were usefully discussed in the 2015 “Old, White and Male: Increasing Gender Diversity In Arbitration Panels.”

Agents for change

Diversity and inclusiveness of the dispute resolution profession will support better practice and benefit the field as a whole.

In 1997 NADRAC included a Chapter on addressing gender equity issues in alternative dispute resolution in its “Issues of Fairness and Justice In Alternative Dispute Resolution” Discussion Paper.

The Women in Dispute Resolution Committee of the American Bar Association aims to assess the status of women in dispute resolution professions and academia, as well as identifying barriers and promoting gender equity to increase women’s participation in the DR profession.

Perhaps there is scope for a contemporary Australian focus upon women in the dispute resolution field. There may be an opportunity to replicate some of the research that has been done elsewhere to gather data and identify issues. Perhaps professional organisations could partner with researchers to start such a project. Please comment here if you have data or research findings already to share.

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This entry was posted in Uncategorized by Dr Olivia Rundle. Bookmark the permalink.

About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

5 thoughts on “International Women’s Day – gender issues in dispute resolution

  1. I heartily support the view that there is scope for contemporary Australian focus upon women in the dispute resolution field. Research which I am presently undertaking suggests that, in some cases, lawyer misbehaviour in court-connected mediations is worse in male lawyers who tend to be more competitive and dominating than their female counterparts who are better able to engage in principled negotiation and interest exploration. It seems to me that one of the threats to the safety of parties in mediation is the intimidation that comes from adversarial conduct in a forum which was never designed for that behaviour. More about this later. In the meantime, congratulations to Olivia on a thoughtful and topical post.

    Liked by 1 person

    • Thank you John, I’m glad you enjoyed this piece. I can’t wait for you to start publishing your findings, they are going to make a fantastic contribution to the evidence base about mediation and lawyers.

      Liked by 1 person

  2. Love this post and the renewed focus on this issue, Olivia. This is an issue that i have thought about a lot and would LOVE to do more work on.

    Carol Rose also argued back in the 1990s that women negotiating family law property settlements for themselves will be systematically disadvantaged because they mostly have a greater ‘taste for cooperation’ than men which will be exploited by the men they are negotiating with. (Carol Rose, ‘Women and Property: Gaining and Losing Ground’ (1992) 78 Virginia Law Review 421)

    My own PhD research was a small scale detailed observational study of eight couples attending Australian family mediation (family dispute resolution, FDR). It is published here http://www.federationpress.com.au/bookstore/book.asp?isbn=9781921113031. I found some evidence there there could be a “gendered shadow of the law” meaning that women’s claims to being “backed up by the law” in mediation may be less powerful because they may be less willing to actually go to court (or say they would) to enforce their claims. This is a long way from a representative study but because of the deep look at the structure of negotiation in these cases, it does suggest avenues for exploration in larger scale work.

    Here’s a quote from the final chapter of my book.

    “We must acknowledge that the cases observed had highly specific factors at play in them and cannot be said to be representative of every case that will come to family dispute resolution. The findings of this study cannot mean that every woman negotiating in family dispute resolution will be disadvantaged by her taste for cooperation. However the cases do demonstrate, as Mnookin and Kornhauser and Rose had predicted, the diminishing effect that an aversion to paying the transaction costs of litigation has upon negotiating power. This study also demonstrates how significant many parties to mediation perceive the transactions costs of litigation to be, including the financial costs, the time and delay, the stress, the destruction of relationships and the effect on children. The study also shows how an active concern for the consequences of litigation for children can increase the imperative to settle. This can encourage the concerned parent to accept a lesser offer in family dispute resolution than what they think they may be legally entitled to. When we combine these findings with the knowledge that women generally do spend more time caring for their children than men, we can see that it is likely that more women than men will adopt a taste for co-operation in family dispute resolution in order to protect their children from litigation. This does not mean that such a gendered phenomenon will occur in every negotiation: that will depend on the circumstances of each individual case. However we know, that despite changing attitudes to the care of children, the circumstances for women’s lesser bargaining power are present in the vast majority of cases.”

    Liked by 1 person

    • I would argue that the gendered phenomenon of which you speak, and which you have rightly acknowledged is not present in every case, may be exacerbated in cases where there is a heightened level of adversarialism caused by an inappropriate reliance on rights based entitlements that have no place in a forum where the care of children is in issue. I hope that I will soon be able to publish something about what mediators are saying regarding this issue.

      Liked by 1 person

    • Thank you Becky for these important reminders of your and Carol Rose’s work on this issue. The dynamics of negotiation where one party is cooperatively motivated and the other not is such an important one to explore. Particularly in family disputes where ongoing conflict or an adversary stance will adversely affect other family members, including children.

      Like

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