Gender Differences in Mediation
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.[11]
The Literature
This sub-topic is much too large for a detailed presentation, but I will try to mention what I view as some of the more important points. The literature is vast regarding gender differences in negotiation.[12] Surprisingly, the literature is sparse regarding gender differences in mediation, which, of course, is a type of negotiation, but the presence of a neutral substantially alters the model. Indeed, the neutral is part of the context referred to by Ms. Menkel-Meadow, a leading author in this field.
Stated concisely, the literature on negotiation differences is not all that enlightening. It refers to the stereotypes of women being more caring and collaborative while men are more direct and combative. It refers to men being more assertive and tending to try and dominate while women are less assertive and more subtle. And it bolsters the idea that men tend to interrupt more while women are more patient and, frankly, more polite.
Menkel-Meadow’s article does, fortunately, focus on gender differences in alternate dispute resolution. A significant point made by Menkel-Meadow, which she refers to as “context”, is the number of variables at issue in trying to assess gender differences in mediation. What is the nature of the dispute? Is the mediator male or female? Are the parties male or female or a mixture? Are the lawyers male or female or a mixture? If a mixture, is the plaintiff represented by a male or female? The defendant? In a multiple party mediation, do the female lawyers outnumber the male lawyers? Do the female parties outnumber the male parties?
Tamara Relis found that women, as parties in mediation, were more concerned with emotional, as opposed to compensatory, aspects of their cases and were more likely to want defendants to attend the mediation with a hope for direct communication about legal and “extra-legal” aspects of their disputes.[13]
The studies as to female mediators versus male mediators are even more rare than those already referred to. Relis found that female plaintiffs were more likely to be overpowered by a male mediator than were male plaintiffs, and she acknowledges that gender differences are still part of the experience.[14]
Reflections
Some words about my own experience. An obvious, but important, point is that generalizations are dangerous. Thus, I will avoid them, as the following observations are specific to mediations where I was either the mediator (a substantial majority) or counsel for one of the parties.
A good number of the cases in which I have served as a mediator involved construction disputes over expensive homes. All the mediations, except one, were attended by husbands and wives, as plaintiffs. Without question, the wives (most of them were working outside the home) had stronger feelings, perhaps grounded in emotion, than the husbands. Without question, they were tougher negotiators. While they started out as less direct, conforming to one of the stereotypes, they certainly did not remain that way as the mediations progressed. In those mediations, all parties were represented by male attorneys. Had there been some female attorneys (see below), I tend to think that the process would have been somewhat different, but I’m not sure the outcome would have changed.
I have also mediated several cases with husband-and-wife teams as defendants. In those, I found the female part of the team to be somewhat happy, as best I could tell, to let their male counterparts and their counsel do most of the talking.
As to female counsel, I have seen no discernible differences between them and their male counterparts.
As an advocate, I have represented parties where the mediator was female, although the sample size is small. The female mediators were slightly calmer than their male colleagues and more nuanced.
This blog post is part of David Schaefer’s peer-reviewed article, “Some Thoughts About Mediation,” published in the Litigation Counsel of America’s Litigation Commentary & Review. For more information or assistance regarding alternative dispute resolution, please reach out to request a consultation, call us at 216-696-1422, or visit David’s bio for his contact information to reach out to him directly.
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[11] Carrie Menkel-Meadow, Women in Dispute Resolution: Parties, Lawyers and Dispute Resolvers, What Difference Does “’Gender’” Make? 18 No. 3 Disp. Resol. Mag. 4 (Spring, 2012)
[12] See e.g., F. Peter Phillips, Gender and Negotiation: An Interesting Study of a Perennial Topic
[13] Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (2009).
[14] Id. at 220-225
