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The Mediator’s (Female) Gender:
Irrelevant, Important, or In-Between?

y answer to the question posed in the title is “all of the above.” Generally speaking, the best mediators have what I call the four Ps: Process skills, Preparedness, Patience, and Perseverance.

I doubt that such attributes lodge in our X or Y chromosomes. As a traditional, “Ruth Ginsburg feminist,” I tend to be leery of “difference” talk. Thus, lawyers and clients should focus on picking a neutral with a proven record in these areas (perhaps placing a thumb on the scale for subject-matter expertise).

The mediator, likewise, should ordinarily feel equipped to deal with male and female players, embroiled in any type of conflict, on the same footing as a neutral of the opposite sex.

But context matters, as does the perception of the participants. Circumstances will sometimes give a slight edge to a woman or man or, on occasion, a larger or even dispositive advantage.

Mediation is not about furnishing equal opportunity to male and female mediators in every case — though plainly, at the macro level, individuals of both sexes and all backgrounds must have access to the profession.

Grounded in party autonomy and choice, dependent for success on the neutral’s persuasiveness to her listeners, mediation requires as much buy-in as possible from clients and counsel. Ideally, perhaps, the mediator’s gender, like other protected characteristics, should not count any more than her glove size.

Yet because it may matter a great deal in reality, the subject demands a nuanced approach— not a flat rejection of relevance.

In that spirit, the following are tentative thoughts about ways in which male and female mediators might differ, at least at the margins, and about when and why one might prefer a female in some situations. Because the short answer to “when” is whenever a stakeholder strongly wants one, assuming that all with a vote agree, this article tries to assess the notions behind the predilection from my vantage as a female neutral.

Like so many who venture into the swamp of gender, I emerge with no firm view on whether men (mediators) are “from Mars” and women are “from Venus.” While I believe “earthly” professional qualities—held in common— matter most in mediation, the question of difference remains intriguing and is, therefore, worth exploring.

WHAT ’S THE DIFFERENCE?

Author Carol Gilligan distinguished between two approaches to conflict resolution: one based on an ethics of rights, more frequently embraced by men, the other based on an ethic of care, more often displayed by women. “In a Different Voice” (1982).

Karen K. Klein, chief magistrate judge of the U.S. District Court of North Dakota, observes that “mediation, at least in its facilitative form, reflects Gilligan’s relational, care-oriented model.” Karen K. Klein, “A Judicial Mediator’s Perspective: The Impact of Gender on Dispute Resolution: Mediation as a Different Voice,” 81 N.D. L. Rev. 771 (2005). Klein hypothesizes that women’s increasing presence in the practice of law has influenced the rise of mediation as a way of dealing with legal disputes.

Admittedly lacking empirical studies supporting her view, Klein posits it cautiously. One does not have to accept her conclusion or take a stand on the vexing question of nature versus nurture in order to agree that women bring a distinctive style to resolving conflict. It would, indeed, be most surprising if they did not.

As the Sixth Amendment fair cross section jury decisions have long recognized: “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both. . . .” Ballard v. United States, 329 U.S. 187, 193 (1946). This insight does not preclude other equally evident truths—that males and females have more similarities than singularities and that some people approach disputes in ways more characteristic of the opposite sex. (Like Klein, “I do not wish to exaggerate gender as a factor.” 81 N.D. L. Rev. at 771.)

COMFORTABLE WITH FEELINGS

That said, how might the typical — stereotypical? — female neutral differ from her male counterpart in ways relevant to mediation? Based as much on personal experience as on theory, this author believes that a woman mediator brings to the table a greater willingness to deal directly with emotional issues, as well as express her own feelings like sympathy, empathy, and respect.

Since I have not often co-mediated, this impression admittedly relies on second-hand evidence, such as discussions with other practitioners and conduct observed outside mediation. What I know, of course, is my own behavior as a mediator. The reader can judge for himself or herself whether it reflects a “female style.”

For example, in caucus I attempt to “build up” parties — usually, plaintiffs in employment disputes — whose confidence or self-esteem has been eroded by the events underlying the conflict, such as dismissal, or by my own reality-testing.

To support my point that the courts are an imperfect forum for gaining justice or vindication, I frequently say: “The worth of your case is not the worth of you.” In addition, in trying to move the complainant toward settlement, I may praise him for having stood up for what he believes to be his rights. I note that his complaint has drawn serious attention, as shown by the fact that the defendants’ representatives have set aside their whole day to attempt to resolve it.

At times, too, I comment on matters unrelated to the controversy. Thus, to single mothers I may voice admiration at how well they have raised their children under difficult conditions. To others, depending on the circumstances, I have remarked on attributes like their work ethic, loyalty to friends, resilience in confronting disease, and diligence in seeking higher education. The comments are based on open-ended background questions I ask during a first caucus, which are designed to elicit information that grounds my subsequent observations.

As part of active listening, I often will reflect my sense of the speaker’s unexpressed emotions, as well as summarize her factual account. I might remark: “Am I right that you felt disrespected when your boss reprimanded you in public?” or “I think I hear that you felt betrayed when you were sued by an employee whom you had hired and twice promoted.” The responses I receive are both affirmative and emphatic; several times I have received a thank you!

Two caveats. First, not every mediation lends itself to such approaches; they may well be more suitable to the employment matters I handle than to standard commercial disputes. Second, a little goes a long way. The neutral has to avoid sounding Pollyannaish, patronizing, or insincere. I never say anything I do not mean.

My principal point here, however, is that a mediator’s openness to addressing, and even turning to advantage, the parties’ emotions probably bears a positive correlation with gender. Men may use the same techniques, to some extent; they likely come more naturally to women.

WILLINGNESS TO SHARE

Mediators need to elicit trust and respect from participants and generally should be able to do so irrespective of the vagaries of background or personality. But this bond is more easily created when a client feels kinship with the neutral arising from real or perceived similarities.

Thus, for example, educated women — or, more broadly, upwardly mobile, striving women — tend to gravitate easily toward me. So do many older people. Mediation is one of the few settings where gray hair may bestow an advantage on a female! Age may also neutralize any sexist tendencies to discount the competence of women professionals. Resemblances that lower barriers to communication between the neutral and parties or counsel definitely smooth the mediator’s path.

Yet what if, for whatever reason, the mediator senses that she is not making the desired connection? Or if she feels a need to deepen the existing tie, perhaps in order to surface a difficult topic or to overcome a party’s resistance? In these circumstances, I may share some facts about my own life to maximize the chance that the person will feel I know where he or she is coming from.

For instance, to the defendant who plainly feels that I am too ready to ask him to part with his hard-earned money, I might indicate that I grew up in a family business. To the poor immigrant, who may find it hard to imagine we have anything in common, I may mention that my parents came to this country as refugees with little in their pockets. To a grieving widow, who blamed the company’s insensitivity toward her cancer-disabled husband for hastening his death, I have mentioned that I lost a spouse to the same disease. And when proud parents show me photographs of their offspring, I occasionally display my grandchildren’s pictures.

Once, in a kind of reverse turn on these bonding strategies, I frankly stated to an African-American male plaintiff who appeared to be rather alienated: “I have the impression you think I can’t understand your feelings that you were discriminated against, but you’re too polite to say so.” His silence spoke volumes.

I continued: “I know that I can never really walk in your moccasins since I’m not black.” I then proceeded to mention certain events in my life that I thought had increased my capacity for empathy and said that I felt this quality could at least help bridge the racial divide. The client became less guarded; paradoxically, we connected better after I acknowledged the limits of connection.

TRADING IN ‘HUMANENESS’

Are such maneuvers unduly manipulative? Unprofessional? I think not, so long as the neutral engages in them in caucus and in moderation, having made the judgment that they are appropriate to the specific case at hand, and never allows her own story to usurp the centrality of the client’s. After all, part of the mediator’s job description is “trading” in her humanness. It’s fundamental: Self-revelation should never be ventured self indulgently, but only as a means of increasing the chance that the neutral can put a party at ease and thereby pave the way to settlement.

More important, for present purposes, does gender affect the mediator’s willingness to “open up?” Again, without being able to prove it, I suspect the answer is yes.

PARTICIPANTS' MEDIATOR PERCEPTIONS

The most important difference between male and female mediators resides in the parties’ hearts and minds. Perhaps because of preconceptions about the genders’ relative strengths and proper roles, I think that participants of both sexes are readier to accept “touchy-feely” approaches by women mediators. Gentleness, warmth, “motherliness,” and similar qualities jibe with society’s traditional view of femininity. Accordingly, techniques that reflect or appeal to emotions are less likely to elicit squeamishness or embarrassment, especially from men, when employed by females.

Yet even if the mediator downplays emotions, her sex itself will likely elicit unconscious responses, positive or negative, from the participants that vary from those evoked by males. As in therapy, perception and projection greatly affect the dynamics of the enterprise—and not only regarding gender. A mediator should act on the premise: “I am what you think I am.” Paul D. Butler, The Question of Race, Gender & Culture in Mediator Selection, 55 Disp. Resol. J. 36 (2001) (referencing George Herbert Mead’s “Looking Glass Theory”).

WOMAN PREFERRED?

As indicated, the main reason to favor a neutral of either sex is party predilection rather than supposed gender differences. A smart disputant will usually defer to an opponent’s wishes to give him or her a greater investment in the process and, hence, a stronger incentive to settle.

That being stated, attorneys recommend mediators. Absent a stated client preference, what might influence counsel to favor a female mediator based on her sex?

The previous discussion suggests a potential general answer: the likelihood that a key participant will need to work through strong emotions before being ready to reach resolution. Not only the neutral’s skill in dealing with both conscious and unconscious feelings but also her ability to forge meaningful bonds with people in a short time plays a critical role in these circumstances. Even a lawyer who rejects the idea that these qualities correlate with gender may tip the scales in favor of a woman if the targeted player is viewed as apt to respond better to a female mediator’s “TLC.”

What paradigm situations bring to the fore the issue of the mediator’s gender? Predictably, one of these is a claim of sexual harassment. Some defendants may worry that in such an emotionally fraught context a female neutral might sympathize overly with the complainant. By the same token, however, one could argue that a male might lean toward the person accused.

But empathy does not equate to bias. A woman mediator’s real or perceived depth of comprehension of feelings of sexual imposition need not blind her to problems with the plaintiff ’s case, legal or factual. (Good neutrals of either gender monitor themselves for partiality.) Rather, she will probably succeed better in reality-testing the client than would a male—whose efforts the putative victim might more readily dismiss on the ground that “he just doesn’t get it.”

The female neutral may also have more standing with defendants who truly “don’t get it.” For instance, in the case of a low-level worker who engaged in sex with a supervisor under threat of dismissal if she failed to submit, I made headway with the defense by voicing strong doubt that jury outrage would be tempered by anger at her for having surreptitiously taped an admission by him. The company’s white-shoe lawyer had argued that a jury would judge the victim adversely for failing, in essence, to adhere to Marquess of Queensberry rules.

Although any mediator would have seriously challenged this notion, I believe the defendant’s representative was more willing to accept a woman’s view of the matter.

Equally, in instances of less egregious or more credibly contested charges, I have pointed out to plaintiffs that older female jurors especially can be quite judgmental of women — citing my late mother’s reaction to “date rape” scenarios: “Why didn’t she just slap his face?”

By parity of reasoning, a female neutral may have an advantage mediating claims of sex discrimination in general and, by extension, any dispute in which a woman attributes her injury to male oppression. (Divorce and similar family matters often fall under this heading; yet where both husband and wife harbor feelings of gender mistrust, using male and female co-mediators may be advisable.)

For example, I mediate allegations of minor disciplinary violations brought by clients against their attorneys. A majority of the former are women; the latter, in every case, have been men. Most complaints involve misunderstandings rather than actual misconduct. But these often arise from lawyers’ perceived “talking down” to clients, impatience, and failure to answer questions. A number of complainants plainly believe that they would have gotten better treatment had they been male. Whether or not this perception is accurate — I tend to think many respondents either are blameless or are equal-opportunity boors — I surmise that the women feel more fully “heard” by a female neutral.

More broadly, any breakdown in communications between male counsel and a female client may call for the use of a woman mediator to help resolve the dispute for which representation was sought. It may be hard for the lawyer to tell whether the problems in the relationship stem at all from gender dynamics. In such a situation, however, and surely when gender-based tension is plain, the attorney should assume that a woman will have an edge in dealing with the wary party.

The mediator may assist the pair to bridge the gap dividing them, thereby improving the odds of settling the underlying matter by increasing the client’s willingness to heed the attorney’s advice. Or counsel may take a back seat to the mediator, at times to the point of encouraging her to caucus privately with the client. I have done so a number of times (always receiving the lawyer’s permission), even in cases without attorney-client friction, when I sensed that the mediation would benefit from a “just-between-us-girls” conversation.

Obeying that instinct has several times prevented impasse or knitted up an unraveling deal. A one-on-one talk gives a vulnerable party a tangible sign of respect and attention, which she may crave.

* * *

There surely are additional contexts in which the sex of the mediator may meaningfully affect the settlement process. If nothing else, the overall diversity, or lack thereof, of the expected participants might reasonably influence the choice of a neutral. For example, in a case with a number of key players all or most of whom are male, it would likely make good sense to balance the group by hiring a female mediator.

But I have not offered these thoughts as hard conclusions about the relevance of the mediator’s gender, or as a catalog of the settings where it might prove to be important. My own ideas on the subject are still uncrystallized. I view them more as the opening of a conversation— with myself as much as with others. I hope that the conversation continues.