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.