ABA DR Section Survey on Gender Differences
by Andrea Schneider
ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.
Hi all–as many of you know, the ABA Section on Dispute Resolution conducted a survey last year of its lawyer members and the results are in! The report by Gina Brown and myself can be found here. Our abstract is below:
This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.
This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed in the paper, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.
Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.
We look forward to hearing your comments and thinking about what we can do to continue to improve gender equity in the field.
Before Andrea Kupfer Schneider even knew or understood the words negotiation or mediation, she figured a way to outsource her chores to her younger brother by paying him a part of her allowance. Not a new trick, but noteworthy that she hit upon the idea naturally. Such is the somewhat tainted beginnings of what would become a notable career as a professor and prolific writer in the disciplines of legal practice, deal making and conflict management. Only many years later, having obtained her A.B. degree from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University, and her J.D. cum laude from Harvard Law School, and studying with Roger Fisher and others associated with the Negotiation Project, did her interest and passion for understanding how people deal with difficult issues and make decisions begin to gel. And afterwards, she enhanced the breadth of her perspective with study and a postgraduate Diploma from the Academy of European Law in Florence, Italy. She joined the faculty of Marquette University Law School in 1996, where she continues to teach ADR, Negotiation, Ethics, and International Conflict Resolution and is the Director of the nationally ranked Dispute Resolution Program.
Andrea’s writing reflects an integrated perspective of the importance of negotiation and mediation that is not bounded to one or a few particular disciplines. She is either an author, co-author, co-editor, or contributor to numerous books, texts and articles in the field of dispute resolution, including: the forthcoming Negotiation Essentials for Lawyers (ABA 2019) building on the two volume Negotiator’s Desk Reference and, earlier, The Negotiator's Fieldbook all with Christopher Honeyman; Negotiation: Processes For Problem-Solving and Mediation: Practice, Policy & Ethics, and Dispute Resolution: Beyond The Adversarial Model with Carrie Menkel-Meadow, Lela Love & Jean Sternlight; and co-author of two books with Roger Fisher, Beyond Machiavelli: Tools For Coping With Conflict and Coping With International Conflict. And beyond practice theory, strategies and techniques, she also explored the frequently overlooked presence of negotiative process in every part of our society; her book, Creating The Musee d’Orsay: The Politics of Culture in France, explores the place of negotiation and politics in art and architecture, and her most recent book, Smart & Savvy: Negotiation Strategies in Academia, written with her father David Kupfer, a researcher and emeritus professor of psychiatry, as the title suggests, explores the necessity for negotiation in an arena that is not easily or openly admitting of the need for such skills. Andrea has also published numerous articles on negotiation, ethics, pedagogy, gender and international conflict and currently serves as the co-chair of the editorial board of the ABA Dispute Resolution Magazine. She is a founding editor of Indisputably, the blog for ADR law faculty and the 2017 recipient of the ABA Section of Dispute Resolution Award for Outstanding Scholarly Work, among other awards. All of this is capped off with her 2016 TEDx talk entitled Women Don’t Negotiate and Other Similar Nonsense.
Her range and scope of interest in how negotiative work can be done more effectively not only in legal practice but in the surrounding politics and culture of our society makes her perspective all the more valuable.
Additional articles by Andrea Schneider