The Game is Changing

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This article was first published by the Missouri Lawyers Weekly (August, 2001)

In my $280
Ferragamo pumps with the 2 inch heel, I stand six feet tall. As a woman litigator, my height has been my
ally. Not only do I stand toe-to-toe
with my opposing counsel, who are mostly men, but I also stand eye-to-eye. The women reading this article may already
know where I am going with this. For
the men, I’ll explain. Litigation is
largely a competitive game of one-upsmanship.
It’s a boys game (no put- down intended) fashioned in a boy’s style of
conflict resolution. Deborah Tannen, a
Ph.D. linguist at Georgetown University, explains the early developmental basis
for the competitive approach men tend to take when in conflict.

Boys tend to play
outside, in large groups that are hierachially structured. Their groups have a leader who tells others
what to do and how to do it, and resists doing what other boys propose. It is by giving orders and making them stick
that high status is negotiated… Boy’s games have winners and losers and
elaborate systems of rules that are frequently the subjects of arguments. Finally, boys are frequently heard to boast
of their skill and argue about who is best at what.

Tannen, You Don’t Understand:
Women and Men in Conversation (Ballentine Books 1990) at 43.

Now
I have played the litigation game successfully for nearly 20 years. And I attribute at least part of that
success on the inability of men, with whom I am eye-to-eye, physically to look
down on me and to treat me (read: dismiss me) like a little girl. Perhaps it helped that I was the only
daughter in my family and in regular conflict with my three younger
brothers. But quite frankly, I’ve
always felt that I was forcing a round peg in a square hole in terms of the
approach I wanted to take to conflict resolution. Tannen has something to say about that too.

Girls, on the other
hand, play in small groups or in pairs…Within the group, intimacy is key:
Differentiation is measured by relative closeness. In their most frequent games, such as jump rope and hopscotch,
everyone gets a turn. Many of their
activities (such as playing house) do not have winners and losers…Girls don’t
give orders; they express their preferences as suggestions and suggestions are
likely to be accepted. Whereas boys
say, “Gimme that!”…girls say, “Let’s do this,” and “How about doing that?” And much of the time [girls] simply sit
together and talk.

Id. Barbara Johnston has concluded from her
linguistic studies that:

[M]en live in a
world where they see power as coming from an individual acting in opposition to
others and to natural forces. For them,
life is a contest in which they are constantly tested and must perform, in
order to avoid the risk of failure. For
women . . the community is the source of power.
If men see life in terms of contest. . .for women life is a struggle against
the danger of being cut off from their community.

Id at 178. In other words, girls naturally want to
pursue a more collaborative, “win-win” style of conflict resolution; boys
prefer an autocratic, positional “win-lose” style.

Until
now, I have kept these notions to myself.
At the same time, I knew at the close of my first 16-hour mediation
class, that mediation appealed to my natural preferences and style. From that moment forward, all I wanted to
learn, write and talk about was mediation and collaborative, interest-based
styles of conflict resolution. Yes, I still litigate with just as much success
as before, but quite frankly, it is not as much fun. As a mediator, I know a better game. It has fewer rules, but it requires more diverse skills.

Many
studies report the unhappiness, stress and depression experienced by
lawyers. S. Daicoff, Know Thyself: A Review of Empirical Research
on Attorney Attributes Bearing on Professionalism, 46 AM. U. L. REV. 1337,
1375-85 (1997). The people researching
this issue suggest that we, as lawyers, overemphasize analytical skills while
ignoring the need to develop our people skills and our emotional intelligence. That this is a source of our misery. Steven Keevan’s recent book, Transforming
Practices: Finding Joy and Satisfaction in the Legal Life (Contemporary
Books 1999), notes that the message we
get throughout law school and during
years of practice is that “[w]hat really matters is winning.” Id. at
10. He continues: “Caring, compassion,
a sense of something greater than the case at hand, a transcendent purpose that
gives meaning to your work – these are the legal culture’s glaring
omissions.” Id. at 11.

Len Riskin, Professor of Law and Director of
the Center for the Study of Dispute Resolution, University of Missouri-Columbia
School of Law, writes:

What happens on the
[Lawyer’s Standard Philosophical Map] is determined largely by the power of two
assumptions about matters that lawyers handle: (1) that disputants are adversaries
– i.e. if one wins, the other must lose – and (2) that disputes may be resolved
through application, by a third party, of some general rule of law…Lawyers are
trained to put people and events in categories that are legally meaningful, to
think in terms of rights and duties established by rules, to focus on acts more
than persons. This view requires a
strong development of cognitive capabilities, which is often attended by the
under-cultivation of emotional faculties.

L. Riskin, Mediation and Lawyers, 43 OHIO St. L. J. 29, 44 (1982).

The Mediation
Field Guide: Transcending Litigation and Resolving Conflicts in Your Business
or Organization (Jossey-Bass Publishers 2001), by Barbara Ashley Phillips
brings a number of these themes together.
One reviewer quoted on the jacket cover says the book “exposes the
feminine face of dispute resolution in a way all of us can embrace.” Phillips suggests that mediation is the yin
to litigation’s yang.

The book opens
with a great quote from a European engineer who was speaking at a conference on
construction industry disputes (yea, the rough-tough guy litigation). Guenther Raberger said: “Our civilization is like a bird with one
wing, flying round and round in circles.
The other wing is the Feminine. Without
it, we cannot go anywhere.” Id.
at xiii.

Phillips
believes that people are hungry for the opportunity to have their problems
viewed from a much broader perspective and to tell their stories to a careful
listener. She served as an Assistant United
States Attorney in San Francisco before becoming a mediator twenty-years ago. She says:

When people want
more involvement in their search for solutions to controversies that affect
them, and those controversies are perceived as problems to be solved rather
than as victories to be won, the whole social underpinning of civil litigation
begins to give way.

Id. at xvi. She advocates two general strategies for
resolving conflict: listening and speaking from the heart. Id. at 38-43.

For those of you
who find all this just a tad bit too touchy-feely, the book is packed with
practical information about the mediation process – including the who, what,
when, where and how – of the process.
For lawyers preparing for mediation or for mediators seeking to improve
their understanding of conflict and its resolution, Phillips offers great
insight and vision in a very readable style.
She provides specific examples of the barriers to negotiation to which
parties (and their counsel) cling. She
reports the success of mediation in the employment context, in the construction
industry and in complex public policy disputes involving many
stakeholders.

In what she
calls “old-mind thinking,” litigation is the preferred method of dispute
resolution – the norm. Everything else,
including mediation, is “alternative.”
She asks us to consider whether this makes any sense anymore. First, litigation has really become
pre-trial practice. Most cases settle
some time before trial. Second,
litigation undermines the possibility of a continuing business or personal
relationship with the opposing party.
Third, litigation cannot result in a quick resolution of the
dispute. Fourth, litigation requires a public
airing of the parties’ dirty laundry.
Fifth, litigation is ridiculously expensive. Unjust discharge cases in California cost employers anywhere from
$81,000 to $208,000 in attorney’s fees.
See Daily Labour Report
1988 at A-10.

In sharp
contrast, the United States Postal Service’s REDRESS program resolves 61
percent of its employment cases in mediation.
The average mediation takes four hours.
Eighty-eight percent of participating employees are highly satisfied
with the confidential process and the control, respect and fairness it
provides. “Moreover, both employees and
supervisors are equally satisfied with ADR.”
See Interagency Alternative
Dispute Resolution Working Group, 2001 at 4, cited by Phillips at 211. Perhaps just as importantly, supervisors and
employees take their new conflict resolution skills and attitudes back to the
workplace. They seem to be getting
along better. Employee complaints
dropped 24 percent during the first full year of the program’s implementation. Id.

For
those of us trying to play a new conflict resolution game, Phillips has this to
say: “When one person in the game
changes, the whole game changes.” Id.
at 255. Anyone for a game of
hopscotch? I’ll wear my $5
flip-flops.