Litigation and Mediation: Exploring the Gendering of Touchy-Feely Options

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.

5 thoughts on “Litigation and Mediation: Exploring the Gendering of Touchy-Feely Options”

  1. An interesting thought…after 24+ years of working in planning and NEPA, this article may explain why I feel less effective in proposing new approaches to getting work done, as opposed to a colleague who, say, works in forest/timber management. Planning/NEPA is not “real” work, but cutting trees is.

    And does the fact that I have found a collaborative approach that sincerely includes the public (as opposed to saying that we do) to be an effective way to get work done make that approach less respected because I do not approach the interaction as “Forest Service knows best”? My answer? Looks who gets promoted to senior leader positions.

    • Tony, before I started as Planning Director in Region 2, the planning director position was actually at a lower grade level than the other director positions in the Region. I think it’s safe to say that my ideas were not appreciated either- but I actually did have a background in timber management (albeit in the less valued (girly?) parts; silviculture, reforestation, genetics and nurseries). Narrow, indeed, can be the gate of OK-ness in the FS :).

  2. I have found it very interesting that during my FS career (all in the same region) that there has been a transition from mostly male “planners” who did at least some analytical work to determine “where to go next” with project planning to mostly female “environmental coordinators” who deal more with FOIA, objections, updating PALS, and “coordinating” and the timber program manager (mostly male) determining “where to go next”. I have never been sure what to make of that…and especially since there is a striking predominance of women now in the “coordinator” positions.

  3. A. that’s an interesting observation. I wonder what the ratios are within and across Regions.

    I used to say that my job as planning director was appeals, litigation, objections, FOIA, forest planning, NEPA- everything that was paperworky but not administrative. I ended up with climate change and sustainable ops- so that included things that crossed disciplinary silos that other people didn’t want to do. The only exception to this were the social scientists and economists on the staff. I don’t have to give a history of science for folks to know that those folks are a) low on the science pecking order and b) frequently female.

    Perhaps oddly, one of my employees (male) came into my office one day and said “the problem with this staff is that there are too many women.” After thinking about this, now I would say, well, duh!

  4. Like Tony said. Early in my career, I saw people “placed” in NEPA/planning jobs because they were “problems” and “anyone can be a planner.” Then it became more of a job “that other people didn’t want to do” (which doesn’t tend to attract the best people). Towards the end I did see some being “rewarded” with good promotions for doing that job well. I did perceive an increase in women in these positions over time, but wasn’t that true of all positions?

    I’m not sure I buy the “devaluation of mediation” or its gender implications. A lot of mediators are men and a lot of attorneys are women. If mediation required an advanced degree it would probably pay better. (Litigation is not “devalued” for men “due to the lack of knowledge and training that is thought to be required for those working to accomplish what comes “naturally”.”)


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