It’s self-evident that women have a commercial dispute ADR problem.
If women mediators are successful, we are either the Sally Rides of mediation practice (doing it weightless, backwards, and in heels) or we are segregated in “pink collar” specialties—family, elder and employment law—all of which focus on people rather than on commerce or finance.
When I ask AmLaw200 attorneys whether they’ve ever hired a woman mediator, they pause for a very long time, eyes canted upward as if searching that part of the brain storing lost socks, keys, and sunglasses. Sometimes they are silent for so long that I have to answer the question for them.
“The answer is no,” I say. “You’ve never hired a woman mediator and that’s OK because I never did either.” My former colleagues and opponents are always baffled and a little embarrassed at this recognition, which is why I always add the permissive part of my commentary. The part about it being “OK.”
But it’s very much not “OK.” It’s not “OK” for the women in the ADR community or for the profession itself. A woman’s brain is a terrible thing to waste.
I became so tired of having this discussion about professional bias, I eventually left the ADR field entirely. Before I did, however, I collected the many reasons both men and women gave me for not hiring women mediators.
• I don’t know any women mediators (Really? While I’m standing before you?)
• I’d hire a woman mediator, but I don’t think my client would feel comfortable with one (Does your client live on man-planet?)
• I’d hire a woman if the case called for compassion (Is this a trait you find in excess among bet-the-company women litigators turned mediators?)
• Most women can’t close a deal (The last time you had the last word in any argument with any woman anytime anywhere was when?)
• I hire women when one of the parties is a woman or one of the attorneys is a woman (Why are women absent from top leadership positions across all sectors particularly commercial work?)
What To Do?
I don’t know what percentage of this magazine’s readers are women but I’m hoping that we account for more than 20%, because I want women to hear this too.
I personally know the [female] editor of this fine journal and nearly every time I receive a link to its online version, I check out the gender of the contributors. Then I write to ask “why so few women?”
This month, that editor called my bluff, asking me to submit an article and inviting me to ask my professional women colleagues to submit material too.
Which I did.
With little effect.
Not a Pipeline Problem
I wasn’t in the first wave of women who enrolled in law school in the early 70’s, but I was in the wave that raised the percentage of women law graduates somewhere between a third and 50%. My own graduating class of 1980 (U.C. Davis, King Hall School of Law) was 50% female.
That was nearly 35 years ago, time enough to fill up the pipeline of ADR professionals with women. Why, then, do we remain so invisible that our commercial litigator friends feel free to look straight at us and say “I don’t know any women who mediate”?
There are a lot of reasons women aren’t more active in the ADR community, including implicit (unconscious) bias. We can spend the next couple of decades banging our heads on that problem, with little likely effect on actually moving the numbers. But, what we can do is to make ourselves more visible.
Women Doing It For Themselves
The Op-Ed Project (www.theopedproject.org) was founded in 2008, to “increase the number of women thought leaders in key commentary forums to a tipping point.” The Project works with top universities, foundations, think tanks, and the like to scout and train under-represented experts to take thought leadership positions in their fields; connect them with its national network of high-level media mentors; and channel the best new experts directly to media gatekeepers.
When the Op-Ed Project was founded, only 15% of all mainstream media Op-Ed pieces were written by women. But here’s the rub. Only 15% of all Op-Ed pieces in the mainstream media were submitted by women.
In the past five years, the Op-Ed Project and other organizations such as the Women’s Media Center SheSource (www.shesource.org) have raised the percentage of women’s Op-Ed pieces to 22% at The New York Times, 19% at the Washington Post, 17% at the Wall Street Journal, 24% at the L.A. Times, 27% at Salon, and 36% at the [woman-founded] Huffington Post.
We cannot control who is willing to hire us or who is willing to publish us. But we can control how often we submit articles in our own professional journals and the magazines, blogs, and journals our market readers. We can control how often and how well we speak about our profession to business and professional groups likely to refer clients to us or give us business directly. We can control how we deploy our energy, skill, and vision to advance to leadership positions in the Bar and in commerce.
My own writing, which began with a free blogger blog in 2006, brought me my own company’s branded negotiation column at Forbes.com by the end of 2011. By that time, so many women had asked me to speak to, consult with, and train them to negotiate better deals, I was on the verge of leaving the ADR field forever.
The Forbes Blog – She Negotiates – brought me to the attention of NPR’s All Things Considered, The New York Times, The Wall Street Journal and CNN among dozens of lesser media outlets. All sitting at a keyboard in my office sharing my thoughts first about negotiation and later about the ten-year leadership plateau women have reached in business and the professions.
If women in commercial ADR are invisible it is at least partly our own doing – or our own “not doing.” We alone can break through both negative and the benevolent stereotypes that keep us from landing mediation work in the fields we know so well as former litigators and business attorneys.
We do that, as so many of us did 30 and 40 years ago, by standing up and standing out. By saying “I won’t be marginalized in a ‘woman’s’ profession.” By saying “I don’t want to be a nurse, a teacher, a waitress, or solely a housewife. “ We can be more visible by saying “I want to be a lawyer, a doctor, a welder, a fire fighter, a coal miner, or a commercial mediator or arbitrator.”
That means raising up our voices and plastering our photographs all over commercial litigators’ walls, reading what our market reads, attending the events or market attends and speaking to businesses where our market resides.
In the age of the internet, we are told that “content” (not credentials) is “King.” Let’s make ADR content Queen as well.
By Victoria Pynchon