Out of Your Element
The challenge: Pretend you are someone else when reading this article.
The goal: Figure out why women and minorities don’t get most commercial conflict resolution neutrals’ jobs.
The recommendations: Among them, providers need to stop trumpeting diverse panels and work it much, much harder.
I didn’t talk about diversity or inclusivity in the legal profession for nearly 30 years. Nor did I want to speak about women lawyers or later, female mediators.
“It’s a toxic topic,” I’d say to people who asked me to comment. “I don’t want to be a woman lawyer. I just want to be a lawyer.”
Feminists told me “a woman’s voice is the only voice you have.” But I didn’t want to speak with its cultural stereotype.
Though “compassionate” under some circumstances, I am not in the business of handing out cash and prizes to every weeping sister and for every sob story that comes my way. Though attuned to the needs and desires of my fellows, I am neither weak nor compliant.
After 25 years of high-stakes commercial litigation and trial experience, I do not lack persuasive power. Nor am I unable keep two contradictory thoughts in my head at the same time—F. Scott Fitzgerald’s test for “a first-rate intelligence.”
I am fearless and uncompromising yet able to change my mind when circumstances call for it.
These are not characteristics typically associated with women but they are typically associated with the vast majority of those women of my generation who went to law school in the 1970s.
As far as I am aware, being a woman in a law firm never affected my clientele, my opportunities or my income—at least since the mid-1980s when some of my law firm’s clients were vociferous in their opposition to having a woman on their litigation team.
I was rudely awakened from my gender-slumber the moment I stepped into ADR in 2004.
ADR: OLD, WHITE & MALE
The first thing anyone notices when they drop out of the legal profession and into the “neutral” business is the time warp. It’s not exactly an old folk’s home or assisted living facility, but it is populated primarily with the people who were already practicing law when I entered the profession in 1980.
Those people were in their 30s then. Now they’re mostly over 60. They’re white. And they are male. Don’t get me wrong. These are my guys. The ones with whom I hung out, tried cases, kicked up a ruckus and hatched hundreds of schemes and plans.
It is not I who stereotype them. It is they—and many women who might hire me—who stereotype me today.
I’ve been to dozens of women’s conferences in recent years. The few men in attendance are generally nervous and jumpy, no matter how much you try to put them at ease. They’re clearly not used to being the minority. They take offense if you mention their gender—“Are you going to throw us out of the room?”—and they gather together in same-gender clumps in the back by the coffee pots..
If you are a white male neutral and/or a white male lawyer, manager or executive, I’d like you to imagine yourself in this primarily female environment for the remainder of the article. Throw in a hefty helping of minority women as well—Latinas, African Americans, Muslims, and the like.
It’s good for all of us to know what marginalization feels like, but it’s particularly helpful for mediators and arbitrators to walk in the shoes of their women and minority clients.
The feeling, should you have trouble identifying it, is slightly disconcerted, hyper-aware, easily startled, somewhat diminished in stature . . . and a little bit defensive.
WHY YOU DON’T HIRE WOMEN
The first time I bothered to ask random attorneys—usually those practicing in my husband’s AmLaw 100 firm—whether they hired women neutrals, I was surprised to hear that they had never hired a woman neutral to mediate a commercial dispute. I was even more surprised to learn why.
• “I don’t think my client will listen to a woman.”
• “I need someone to lean on the other side and I don’t think most women can do that effectively.”
• “I hire a woman mediator when I need someone with compassion.”
• “I hire a woman mediator when gender is an issue—if opposing counsel is a woman or my own client is a woman.”
When thinking about hiring a mediator, people—not just men, but people—ask themselves whether the men suggested for the job have the right background, education, experience and word-of-mouth “praise” to understand and handle the dispute’s legal and factual issues. They also ask about his reputation for “closing.” They don’t assume “men can’t close” when 50% of the male mediators they hire fail to do so. But it only requires one or two experiences with a mediocre woman mediator to write off the entire gender.
When talking about women mediators, lawyers of both genders act as if women, unlike men, have a single set of generic characteristics that make them a good or bad “fit” for the task at hand.
Once, mediating a construction dispute between a downtown L.A. nightclub and a contractor, the contracting side clued me in to the club patrons’ sexual preference. They were lesbians, wink wink. It was assumed I’d understand that the club proprietors also were gay women and that a jury would not be sympathetic to them.
Their settlement, it was further assumed, would have to reflect their lack of “appeal.”
“Ohhhhh,” I said. “Les-bee-ans. Didn’t know.”
“Why,” the contractor’s attorney asked, “do you think we hired you?”
I found this comment offensive on so many levels—Did they think I was gay or did they simply presume gay women wouldn’t be persuaded by a man?—it was a struggle to maintain my neutrality. As long as I was wearing my mediator hat, however, I was able to just let it go. Once the mediation was successfully concluded, the contractors’ attorneys told me how pleased they were with my work, and how likely they were to hire me or another, generic, “woman” for “similar cases.”
“If you’re ever looking for a mediator with 25 years of complex commercial litigation experience,” I said, “along with first-rate facilitation and negotiation skills, and enough experience as an arbitrator to impress their clients in an evaluative mode, I am a good choice for you.”
“But please,” I concluded, “don’t ever hire me simply because I’m a woman. I am likely to disappoint your expectations of how a ‘woman’ might handle your mediation. Gender, like race, is the least reason you should ever give for hiring a neutral.”
If you doubt that we are are all somewhat blinded to individual talents, skills, strengths, idiosyncrasies, and characteristics by race and gender, the experience of professional musicians proves the point.
World-renowned orchestras vehemently denied that gender played any role whatsoever in their hiring decisions. The decision to hire a musician, they protested, was based entirely upon gender-neutral decisions about the quality of the work. Musical excellence cannot be objectified. It is necessarily subjective. Therefore, women had no way of proving that their underrepresentation had anything to do with their sex.
Maybe women were just not as good as the men. Or they hadn’t had the time to practice as often as their male peers given their presumed child-bearing and -raising activities. Or perhaps they were more distracted by their family obligations than men were and that accounted for their purportedly deficient performance.
But when women finally convinced orchestra hiring committees to conduct blind auditions, the results were dramatic. Blind auditions increased the probability that a woman would advance from preliminary rounds by 50 percent and the likelihood that they would be ultimately selected increased several fold. (See “Blind orchestra auditions better for women, study finds,” Princeton University website (2000) (available at www.princeton.edu/main/news
Gender played a role after all. Changing hiring practices resulted in more equitable hiring decisions and improved orchestra performance at the same time. When you unconsciously exclude half the human race, you’re bound to miss a few geniuses and hire a few clunkers.
If you are not a minority in U.S. culture or a marginalized majority—women—you do not have to think about your place in the society. You are the society. You are not a “male” lawyer or a “white” doctor. You’re simply a doctor.
You do not believe that people hire you because of your gender or your race because you’ve rarely been deselected for those reasons.
Talk of white, male privilege in America makes people uncomfortable, even angry. It surely makes me uncomfortable. I want to believe I live in a pure meritocracy where gender, race, sexual orientation, disability and the like are no more consequential to my ability to earn a living than the color of my eyes or the freckles on my skin.
That’s because our national ideal is equality, meritocracy, and inclusion. We want to believe we live and work in a system that is not rigged either in our favor or against our interests. We want to rise or fall on our own merit. We don’t want to believe we were born on third base or will forever be consigned to the dugout.
So let me just state this: Bias is not my fault and it’s not your fault. It’s the way we’ve been acculturated. And as soon as we bring our implicit biases about “others” to consciousness, we immediately start to work on changing them because we’re all fair-minded people.
The Daily Beast addressed the perils of “benevolent” stereotyping in an article titled The Stereotype Trap. According to the social scientists whose research was cited there, “the favorable traits stereotypically associated with women often serve to perpetuate their lower status.” They explained,
When people see women as warm and caring but less competent than men, they may give women positive evaluations but still feel that women need men to protect and take care of them. Thus, women’s subservience is justified. Men are not exempt from this type of ambivalent sexism; the stereotypic characteristics of men can also be analyzed into hostile and benevolent components that are analogous to those that apply to women, but women’s hostile attitudes toward men do not erase men’s dominance. This type of benevolent prejudice may rationalize racism as well as sexism, casting the dominant group as benevolent protectors rather than oppressors.
(The Daily Beast article can be found at www.thedailybeast.com/
When I say, “Please don’t hire me because I’m a woman,” these are the stereotypes to which I refer. Rarely do litigators engaged in a bet-the-company, high-stakes piece of commercial litigation believe they need a warm and caring mediator to help them negotiate a settlement that satisfies all of the parties’ interests well enough to terminate litigation.
My husband and several other men I know asked me why I didn’t want to be hired based upon my gender. I tried the “Would you like to be hired because you’re Jewish?” angle, and that didn’t help.
So I called lawyer, author and diversity consultant Verna Myers, who heads her eponymous Baltimore consulting firm, for some help. She explains that applying stereotypes to women and minority professionals limits their clients’ understanding of what they bring to the task at hand, what they can contribute, and how they can contribute it.
Stereotypes, says Myers, create a box for women and minorities based upon their perceptions of who you are or who you should be. Those perceptions will limit women’s and minorities’ ability to show up for you with all of the knowledge, education, experience and sophistication they bring to the job.
“If you have a way of thinking about women,” she says, “then women can’t break out of your descriptor. And if they do—by being aggressive, for instance—they’re often penalized for doing so.”
According to Myers, both negative and positive stereotypes put the stereotyped individual into a double bind. “If she acts differently than the way you expect a ‘woman’ to behave, she’ll upset the people who have circumscribed her role. She’s in the double bind because if she acts [or] behaves as a generic, stereotypical ‘woman,’ she may have trouble doing the job you’ve hired her to do.”
As Gloria Steinem once said, all women are female impersonators. If you get that, then you understand the problem of stereotypes.
There are many reasons why Majora Carter’s TED talk, Greening the Ghetto is so popular.
This extraordinary young woman tells a classic American story about a poor kid making good and doing so in and for her own community. (See Carter’s speech at www.ted.com/talks/majora_
renewal.html.) And her accomplishments are extraordinary. She’s young and she is black and she has “embraced her inner capitalist” by making “greening the ghetto” a profit-making enterprise.
Her pertinence to women in ADR can be found in this observation from her TED appearance.
When I spoke to [Former Vice President Al] Gore before breakfast, I asked him how environmental justice activists were going to be included in his new marketing strategy. His response was a grant program. I don’t think he understood that I wasn’t asking for funding. I was making him an offer. . . . Don’t get me wrong, we need money. But grassroots groups are needed at the table during the decision-making process. . . . I have come from so far to meet you like this. Please don’t waste me.
Women and minority mediators have much the same to say. Please don’t waste us, even if using us requires you and the ADR panels from which you choose neutrals to reassess your own implicit biases, a confrontation with our deepest held secrets that requires all of us to suffer just a little diminishment of our existing self-image.
Considerably understating the matter, Lakshmi Ramarajan, an assistant professor of business behavior at Harvard Business School says that “talking about and studying diversity . . . raises a fair amount of anxiety for people.”
A lot of times the context of the conversation is around diversity as a problem—isolation, prejudice, conflict—that seems to be so closely associated with working across group lines and group differences. And that makes a lot of people wary.
In a recent working paper, A Positive Approach to Studying Diversity in Organizations (available at www.hbs.edu/research/pdf/
11-024.pdf), Ramarajan and fellow HBS professor David Thomas “argue that focusing on the benefits of a diverse organization will lead to workplace policies that embrace diversity, instead of grudgingly accepting it or pussyfooting around it.” Carmen Nobel, “Taking the Fear Out of Diversity Policies,” Working Knowledge website, Harvard Business School (Jan. 31, 2011)(available at http://hbswk.hbs.edu/item/
Diversity training, like sexual harassment training and most other corporate “do good” programs generally are not well received by the people down whose throats they are forced. Too often, those training sessions make as many false assumptions about white men as they do about women, ethnic minorities, African-Americans and the LGBT community.
No one addressed this problem better before or since than President Obama did while running for the nation’s highest office. As he said in Philadelphia on a fine spring morning in 2008,
Most working- and middle-class white Americans don’t feel that they have been particularly privileged by their race. Their experience is the immigrant experience—as far as they’re concerned, no one’s handed them anything, they’ve built it from scratch. They’ve worked hard all their lives, many times only to see their jobs shipped overseas or their pension dumped after a lifetime of labor.
They are anxious about their futures, and feel their dreams slipping away; in an era of stagnant wages and global competition, opportunity comes to be seen as a zero-sum game, in which your dreams come at my expense.
So when they are told to bus their children to a school across town; when they hear that an African American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed; when they’re told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time.
This is true for all of us. Who among us has not experienced prejudice, from the petty tyrannies middle-school boys impose upon one another based on size and strength; to the cutting words teen girls so quickly learn to use as rapiers to pierce another’s sensitive heart, sap her confidence and leave her demoralized and confused; to the sororities and fraternities who apply all measures of metrics to the detriment of those who are blackballed; to the cruel jokes about gender, race, religion, nationality and disability?
Who among us has not, at one time or another, used these invidious and pernicious stereotypes about our fellows to shore up our own sense of importance in a world that tells us every working day that we are not good enough, smart enough, canny enough, wise enough, fair-minded and compassionate enough to proudly take our place in the life of the culture—let alone to serve as a role model of upward mobility and achievement in the face of the thousands of obstacles that daily threaten to defeat each and every one of us?
Author Victoria Pynchon, with Gloria Steinem at far right.
SCRATCHING THE SURFACE
You may think I’ve gone too far afield from a topic as seemingly inconsequential as bias in ADR. I think I’m just scratching the surface. While recognizing the existence of bias in the professional choices we make is an important first step, it cannot solve the problems that beset us.
Here, for example, are the many reasons excellent mediators are routinely excluded from ADR assignments in the field of litigated commercial cases:
• He’s too young.
• She wasn’t a judge.
• He doesn’t have the necessary subject-matter expertise.
• Men aren’t right for this assignment because we need someone able to reach the female plaintiff.
• I understand he’s a very skilled mediator, but my client wouldn’t feel comfortable with an African-American mediating this case, particularly because the opposition is from Mississippi.
• She went to a second-tier law school and practiced at a small firm; we need someone whose Ivy League credentials will impress our clients with the wisdom of a collaborative business-oriented resolution.
• My client is in the construction industry and he won’t respect a gay male mediator; I’m not prejudiced but my client probably is and I can’t risk hiring someone who’s gay just to show how PC I am.
• Women can’t close a deal.
• I don’t believe a woman can exert the kind of pressure on the other side that’s necessary for them to see reason.
Some of these rationales for mediator choice are based on experience, expertise and the like. Others are based on presumed characteristics shared by all the members of a particular group—women, for instance, gay men or African-Americans.
It’s not so much that we do a disservice to others when we choose individual mediators based on the presumed attributes of their race or gender—it’s that we deprive ourselves of the opportunity to find the best individual for the job.
SEVEN WAYS TO MOVE FORWARD
When I asked consultant Verna Myers for her help communicating women’s distress at being hired because they are women, I also asked her for ways in which we can resist our biases, and thereby seek and find the best individual for any job.
Here are seven quick tips she provided:
Of all these suggestions, I believe that the sixth is the key to resolving the gender gap in the law, in politics, in business and, of course, in ADR. Put your own skin into the game of a woman neutral who has done a good job for you, remembering that you hire and re-hire men who are simply good but often refuse to re-hire women unless they’re unbelievably great.
I have heard executives and ADR panel owners—the entire provider industry—repeatedly justify discrimination against their women and minority neutrals by saying “The market has spoken,” and “We have to give them what they want—old, white-male mediators and arbitrators,” preferably retired judges.
“Our diversity efforts have failed,” I’ve heard them say, “and we must move on.”
But the market was also speaking way back in the late 1970s when I and most other women neutrals went to law school and commenced practice. The market wanted white men too, even though 33% of all law school students were then women.
Had our law firms listened to their “market” back then, we would have faced the same discrimination faced by Sandra Day O’Connor, our first woman U.S. Supreme Court justice, when she graduated from law school. The only job she could get was a legal secretarial position.
Women lawyers were integrated quickly into law firm practice because there was simply no avoiding us. And that’s the only way we’ll be integrated into ADR commercial dispute practice anytime soon.
ADR panels must flood their lists with women and minorities. But simply having marginalized neutrals on a panel’s roster is not enough. Any roster can be diverse. What it needs to be is inclusive.
ADR panels are diverse when they add women and minorities. They are inclusive when they make us prominent choices, that is, when they promote women. Law firms and businesses who hire neutrals also should assure themselves that their internal “go to” neutral lists include at least as many women and minorities as are present in their local communities.
There is no justification for ADR panels to be 70% to 80% white male. None. The American Arbitration Association’s pledge to put at least 20% women and minorities on every list of neutrals recommended to its clients is insufficient. (See William K. Slate, “Diversity at the American Arbitration Association,” 63 Dispute Resolution Journal (February 2008).) We know it’s insufficient because the implementation of that policy has not moved the needle of diversity even a digit.
We women and minority mediators and arbitrators exist in sufficient numbers to easily accomplish the goal of ensuring that we are represented in something approaching our population in the community.
This is not only an issue for neutrals. It is a justice issue. As the bench has become more diverse, people, small businesses and even Fortune 500 corporations have increasingly been moved out of the public justice system and into court-mandated mediation programs, or contractually required arbitration proceedings.
Picture yourself, a white male litigant, being forced to arbitrate your case before a three-arbitrator panel composed of an African American, a Muslim and a Latino woman. Enough said.
Here are just a few suggested programs to increase the retention of women and minority neutrals by clients of ADR providers:
• Include at least 50% women and minorities in percentage of their presence in the population on all ADR panels;
• Create a high-profile marketing campaign touting the accomplishments of women and minority panel members;
• Include at least 50% women and minorities by percentage of their presence on the panel on any list of potential arbitrators or mediators recommended by the ADR provider;
• Providers should encourage their employees to recommend women and minorities as often as possible and to ask themselves why they tend to recommend the same white men over and over again;
• Arbitration providers should stop making it easy for panel patrons to choose only white men as arbitrators in commercial cases;
• Promote your women panelists whenever you market;
• Let ADR provider clients know that the firm is actively promoting its women and minority panel members, while at the same time reminding clients that they have their own diversity and inclusivity goals to meet.
• Reward neutral panel employees with raises, bonuses and promotions for achieving internal diversity goals.
• If you sponsor continuing education programs to advertise the availability of your neutrals to local bar associations, ensure that women and minorities are included in your presentations.
It’s time that we all made a conscious effort and took deliberate steps to end bias in business and the professions. It’s good for business, it’s good for justice and it’s good for ADR professionals.
The author is a mediator with ADR Services Inc., in Los Angeles, and an arbitrator with the American Arbitration Association, where she mediates and arbitrates the same type of commercial matters she litigated during a 25-year career. In 2010, Pynchon launched She Negotiates Consulting and Training with her business partner, Lisa Gates, an adult learning specialist and negotiation consultant. Pynchon’s new book, “Success as a Mediator for Dummies,” will be published this month by Wiley Press. Her previous book, The Grownups’ ABCs of Conflict Resolution is available on Amazon in paperback and Kindle. Pynchon gives negotiation advice three times weekly at the She Negotiates Blog at ForbesWoman. For more information, visit http://victoriapynchon.com.
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