Combating Implicit Gender Bias in ADR

Now you know the disappointing statistics.  As women have populated the Bench, justice has become more privatized, lessening the benefits of diversity to those whose disputes lead them to Court; to arbitration panels and associations; or, to mediation panels.

(make of it what you will, but I was definitely a boy-toy girl, i.e., trucks, cap guns, baseball gear and the like; no dolls – yeeccchhhhhh)

Here’s the inside scoop – all of it anonymous – and gathered from people in a position to know, i.e., people who manage ADR panels, both in court-annexed programs and in the private sector.  These are observations from the national scene and no one should conclude that they refer to practice in Southern California or to panels with which I’m affiliated – I know a lot of people around the country because I blog and am pretty deeply wired into ADR practices and procedures both nationally and internationally.

1. even on pro bono panels, particularly in the more commercially oriented federal courts, panel users rarely choose women;
2. women are so seldom chosen as arbitrators that at least one urban arbitration panel stopped putting women on a local roster until the decision to “let the market choose” came to the attention of the organization’s higher powers who likely saw this for what it was – intentional gender discrimination;
3. because “women don’t refer” cases to private ADR panels, women’s legal organizations are often excluded from those panels’ marketing efforts; and,
4. women are leaving prestigious ADR panels to commence judicial careers or return to the bench because they cannot make a decent living in the commercial ADR sector.

I’m a Lawyer Who Happens to Also Be a Woman; Not a “Woman Lawyer”

I’ve avoided this topic because I don’t like whining about circumstances that could possibly hinder my own career.  I’m not used to whining.  I’m used to working.  And as I’ve said many many times before, I did not experience gender discrimination as an inhibition to career advancement in commercial litigation.  During the early years of my practice (say, 1980 to 1985) the response to the flood of women entering the legal market was:  (1) we were explicitly told that we had to prove our mettle by taking the “heat” in litigation’s “kitchen” – we accepted this challenge and met it; and, (2) we were supported by our law firms in response to biases in the market.

(image right:  we were trying to figure out who to be)

How supported?

Like this.

Client:  I don’t want Vickie Pynchon assigned to this case (1983)

Senior Partner:  Why?

Client:  Frankly, I don’t want a woman representing my interests in Court or any other venue.  I don’t think they’re tough enough and I don’t think it will give my opponent the right impression of the power I want to project.

Senior Partner:  If you don’t want Vickie on the case, you’ll have to find another law firm because she’s the best associate I’ve got.

As late as 1987, clients in an antitrust action told the senior partner on a case on which I was the senior associate that they didn’t want me to take any of the significant depositions.  At first, the senior partner agreed.  Time passed.  He was a rain maker.  I was a worker.  I knew the facts far, far better than he did.  Critical depositions were scheduled.  The partner continued to assure the clients that he would take those depositions.  Then he “fell ill.”  I was pinch hitter

The clients came, suspicious and angry.  They passed notes among themselves and some to me with suggested lines of questioning.  Eventually, the notes got crossed and I received one of the client-only communications.

It said, “oh my god!! she’s great!!”

I’m not blowing my own horn here.  Here’s my experience with those few clients (half a dozen in a twenty-five year practice) who affirmatively stated a gender-bias to the “senior” male members of my law firm/s –  they judged my performance as simply brilliant because they had such low expectations.  Most women use this to their advantage, as do most litigators.  There’s no better advantage to have in litigation than the low expectations of opposing counsel and there’s no better way to impress prejudiced clients than to perform competently in their presence.

So what to do about gender bias in ADR?  Should we “listen to the market” and provide them with what “we” (think) they want?  Or should we respond to implicit bias in the profession by flooding arbitration and mediation panels with competent women (we do exist in sufficient numbers to easily accomplish this goal)?  As I’ve said to more than one arbitration panel executive “implicit bias will evaporate when the lists of arbitrators sent to the parties by the organization include five women and one man instead of six men or five men and one woman.”

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >