I ran across an interesting paper here on the gendered aspect of mediation compared to litigation. I think that it gets at some of the vibes I received when I was working for the Forest Service in litigation. I also think it’s germane to the Forest Service in that cooperators would like it if FS individuals had better “people skills.” In some cases, in the past at least, working and leading NEPA efforts have not been as highly valued by the FS as other kinds of work. Could some degree of gendering be one reason? I think it’s worthy of discussion. Of course, it is not about that men can’t be as good as women at any of these things.. it’s just that there might be underlying and unconscious thoughts that might make a person think “hey, she’s good at leading people on NEPA efforts, but that doesn’t translate to becoming a line officer because…” Or if NEPA and collaboration are unconsciously less valued, then men who do those jobs are also undervalued.
The authors make it easy to read this piece even if you don’t keep up with the field of gender studies. The lead author, Dr. Jennifer Schultz, is a law school professor at University of Manitoba and the second author Jocelyn Turnbull, is a lawyer in private practice.
Jennifer Coates examined gender-differentiated language and the role it plays in the continued marginalization of women in the professions. Her study found that men are socialized to be more competitive and to use competitive discourse throughout discussion, whereas women are socialized to use cooperative discourse. Men in the study were more individualistic, while women often define themselves and understand their world with reference to their relationships. Mediation mirrors this genderization of goals by focusing on cooperation, consensus, and the parties’ relationship. Litigation, on the other hand, takes a masculine approach through competitive discourse and individualistic understandings of relationships. This is because the goal of litigation is best described as winning.
David Berg, an American trial lawyer, recalls the chief justice at his call to the bar telling the new lawyers, “You worry about winning. Let us worry about justice.” Of course, he acknowledges that winning also “includes great settlements, especially in an age of alternative dispute resolution. But you can’t get great settlements without the credible threat that you will go to trial.”The goal of litigators is to use threats and intimidation to win their cases at the expense of their opponents. This winner-takes-all approach, which pits one party against the other, is conventionally masculine.
In order to foster good communication in mediation, adroit facilitation is essential. Facilitation skills, generally known or understood as “soft skills”, include good communication skills, emotional intelligence, and interpersonal adeptness, and are explicitly gendered female, as is obvious by the reference to “soft”. It is often assumed that women more naturally possess these soft skills, and therefore it is simply taken for granted that these skills are traits of women, and not truly mediation skills. Soft skills – communication to assist and understand others – are highly feminized, focusing on listening, caring, dealing with emotions, and thinking creatively, all in the context of a privately facilitated process, and can be contrasted with the advocacy skills required for litigation.
Successful litigators realize that “much in the way of preparation, imagination, ingenuity, and oratorical skill is required to mount the most persuasive presentation” before the court in an effort to win their cases. Litigation skills focus on the individual litigator and his or her ability to manipulate, coax, and persuade a particular view point, in a public forum, to benefit one party at the expense of the other. Litigation skills are generally assumed to come more easily to men, whereas the “soft skills” of mediation come more easily to women. As a result, mediation becomes gendered female to allow for the appropriate worker pool to be established. When those who do the work are “naturally” suited to work in
that area, the work becomes devalued due to the lack of knowledge and training that is thought to be required for those working to accomplish what comes “naturally”. These differences contribute to the gendering of both processes.
Of course, the most important avenue to pursue is the much more complicated process of revaluing gender. The devaluation of mediation would be rectified if as a society, we overcome our prejudice against all female processes. If we valued female mediation as much as male litigation, we would not need to write this article. Revaluing gender is a crucially important, long-term goal that cannot begin without better education. Unless and until mediative, problem solving approaches become the focus of legal education, mediation will continue to be devalued and viewed as a secondary process to litigation by law students and society alike. Most importantly, it will mean that many who might benefit from the wonderful process of mediation will never be offered, or will not embrace, the opportunity.