Gender dynamics in mediation: Seeing the big picture

Issue November/December 2016 By Sarah E. Worley

"You arranged everything according to your own taste, and so I got the same tastes as you - or else I pretended to. I am really not quite sure which - I think sometimes the one and sometimes the other." - Henrik Ibsen, A Doll's House

Henrik Ibsen's masterpiece, A Doll's House, premiered on stage in 1879 and chronicled the married life of its protagonist, Nora Helmer, who cut deals and manipulated family finances in secret, while her husband and his cohorts assumed that she spent her days ruminating over recipes, fashions and children. Throughout his work, Ibsen paints a picture of a marriage in which only the man has a voice and the authority to determine his family's path. Long a staple piece in any good literature program, the action in A Doll's House offers a glimpse into the dynamics of gender often at play in the arena of mediation. The role of gender in mediation is frequently overlooked but critical to successful dispute resolution. The topic also requires some uncoupling.

There are two areas in mediation in which gender dynamics are most important and often ignored: the first is environment and the second is process. One of the great benefits of mediation is that it allows the parties to create an environment in which a case can be discussed and, hopefully, resolved. By the time a legal matter reaches mediation, the parties involved are in some level of distress; if the parties are engaging in mediation, they are already mired in a legal dispute. When parties get to mediation, by definition something has gone wrong - a marriage, a business venture, a construction project, a medical procedure. Whatever the circumstance, clients turn to lawyers to guide them through the legal process, a trajectory that can be bewildering, frustrating and, at times, frightening. With the encouragement of the court system, more lawyers recommend mediation to their clients to resolve their disputes. The mediation process allows the parties to select by mutual agreement the time and location of mediation and, most important, the mediator.

Typically, lawyers bear the responsibility of recommending a mediator to their clients. In selecting a mediator, lawyers consider breadth of experience, subject matter expertise, demeanor, reputation and any number of other characteristics. Lawyers also tend to gravitate toward mediators with whom they work well. In choosing a mediator, it is critical to understand how a client views the world and use that information in selecting a mediator. Some clients do not work well with women. Some cases arise out of subject matter that is gender-sensitive. Some clients, raised in cultures that adhere to very specific gender roles, will not have a productive mediation experience if those roles are challenged from the outset by the selection of the mediator. In choosing a mediator, lawyers have a responsibility to create the best environment in which a case can be resolved. The selection of a mediator goes beyond considerations of gender equality or gender neutrality; the choice of mediator should always take into consideration the personality and background of the client. Lawyers should ask themselves, "In this instance, is there a gender dynamic at play with my client or decision-maker that should factor into the selection of the mediator?" The answer may be "no," but if the answer is "yes," that issue must be addressed before, and not after, the selection of the mediator.

Once the parties have selected a neutral and their case moves into mediation, gender dynamics often come into play in the mediation process. Those gender dynamics are sometimes wrapped into family structures. In many cases, regardless of the subject matter, members of the same family attend mediation, either because they are party litigants or they are present to provide support to family members who are party litigants. In either instance, the role of the mediator is not to judge and alter the gender dynamics at play, but rather to observe those dynamics, understand them, and then craft a process most likely to allow the parties to resolve their dispute.

Contemporary culture has coined the phrase "mansplaining," which is commonly understood to describe a situation in which a women makes a statement that is ignored or disregarded, followed by a man rephrasing or repeating the same statement, at which time the statement is acknowledged by the listener. This phenomenon plays out frequently in the mediation arena and it is not limited to male/female stereotypes. In one family, the members may always defer to a male family member as the speaking authority; in one company, the officers may always defer to the female department head as the final word. Regardless of the dynamic, an attentive neutral can dramatically improve the process of mediation by recognizing a strong gender dynamic and making an effort to encourage all voices to be heard.

Some gender dynamics are physical. Is there a person in the room to whom others turn their back when speaking? Is there someone who constantly interrupts another? Whether or not those kind of behaviors happen along gender lines, a mediator can neutralize tension caused by those tendencies. Most mediators know how to manage a room: a mediator adds value to the process by making sure that people who want to speak can do so. A neutral can recognize when an individual is being pushed aside or dismissed or is struggling to express a viewpoint. An effective neutral can step in and create space for that viewpoint to be heard. People who are heard are empowered. People who are empowered can make decisions. By creating an environment and a process in which people see that their thoughts, opinions and viewpoints are at least acknowledged, a mediator lays the groundwork for the resolution of a dispute.

Challenging a gender dynamic for the sake of doing so in mediation is not a productive use of time or resources. However, a neutral can observe the influence of gender roles in any given mediation and accommodate them. Part of that accommodation is to create a process in which each participant, regardless of their place in the gender dynamic pecking order for discussion or decision-making purposes, is heard and valued. Attention by a mediator to this level of engagement helps to establish a forum in which parties experience true ownership in the process and are therefore more committed to and engaged in crafting a solution to their legal dispute.

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