This is a blog I have shied away from writing. Several times. Even now, as I do so, I am wary of it. But here goes. I’ll come right out with it.
Very few women feature on the lists of “top” commercial mediators.
This year’s Who Who Legal World’s Top Ten features precisely….none. Seriously? Come off it.
Perhaps it was a mistake? Nope. Check out this year’s UK Legal 500. Three of the top twenty are women. This year’s UK Chambers Directory? Four of the top nineteen (though with a big shout for Frances Maynard who tops the list).
Now, I am no student of gender politics or history. And I don’t think of myself as a feminist, or a misogynist, or any other relevant “-ist”. I’m not trying to make any of those points. I’m just a mediator. But I am a mediator who cares about our profession and who recognises that women seem to be grossly under-represented in its top echelons.
We can all speculate on the reasons, and we can all suggest responses. I intend to do neither. That is for sociologists, gender experts, historians, rights campaigners or whomever.
I simply want to do two things:
1. To say it out loud; and
2. To remind us that it is not so everywhere in the world.
When I first started working on mediation in Russia in the late 1990s, I found (to my great surprise, coming from the UK) that the majority of leading mediators whom I met were women. And then I found the same in Slovakia. And then again in Romania, Bulgaria, and Ukraine. And most recently in Belarus. And if I may speak frankly, I have witnessed courageous and visionary leadership on offer from the women mediators in those countries. They carry the hopes and fears of many on their shoulders, not just for the growth of a new profession, but for a better way of doing things in sometimes tough circumstances. They seem willing to counter the prevailing cultural wisdom in a radical and moving way.
Yes of course these are gross generalisations, not statistically-founded research outcomes. But they are still my very clear impressions.
At the highest political level, United Nations Security Council resolution 1325 (adopted 31st October 2000) “reaffirms the important role of women in the prevention and resolution of conflicts, peace negotiations, peace-building, peacekeeping, humanitarian response and in post-conflict reconstruction and stresses the importance of their equal participation and full involvement in all efforts for the maintenance and promotion of peace and security”. You could hardly wish for a clearer clarion call or statement of priority.
This year’s Coventry Cathedral International Peace and Reconciliation Prize went to Thérèse Mema Mapenzi from the Justice and Peace Commission in the Democratic Republic of the Congo, for her work with victims of sexual violence.
And of course we all know that Malala Yousafzai received the 2014 Nobel Peace prize, alongside Kailash Satyarthi.
I am not arguing for a particular answer or response. I am simply asking out loud whether the commercial mediation profession, at least in some parts of the World, is missing out on some much needed talent, and has something to learn from other areas of mediation and peace-making.
Of course in today’s politically correct world, one hardly dare argue some of these points or risk dipping a toe into the shark-infested waters of gender politics. One hardly even dare make reference to gender, along with race and creed.
On the other hand, sometimes these things just need to be said.
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My incautious reaction from the hip is that it’s all about the money. When I was a family mediator in the not-for-profit sector (hourly rate £12) I was surrounded by women – typically around 10% of mediators at training events were male. When I began to develop a workplace mediation practice (hourly rate anything from £40-150) I would estimate the proportion became roughly 50/50. Whenever I have dipped my toe into commercial mediation (hourly rate ?) I seem to meet mostly men in suits. Like you I can’t offer a solution. On this and many other levels mediation seems to reflect the society of which it is a part.
As someone who co-led consciousness raising groups last century, taught assertiveness training to women and men, was the only woman on the county board of supervisors, and on-and-on-and-on, I say I hope I live long enough for all girls and women to be assumed to have the same equality, potentialities, quirks, challenges and value as boys and men. And thank you for writing this though it need not be a whisper IMHO. Oh, and yes, Charlie, thank you, the money is also a biggie issue. Thank you, also.
As bad commercial mediation is for women, it’s much worse in commercial arbitration. I published an article in the ABA Dispute Resolution Journal a couple of years ago in which I cited some statistics and posited some explanations, and I’d be happy to post it here, or send it to whoever would like to look at it. Interestingly, I concluded that the time is still not ripe for women neutrals to expect support from women litigators, who are still trying to get in the game and don’t want to call attention to their gender by going against the prevailing norms of neutral selection. It’s a sad state of affairs. Even Wall Street–which I always thought would be the last bastion of gender discrimination–has cleaned up its act
I can’t say for the West, but in India, commercial matters, whether in litigation, arbitration or even mediation, tend to go to men. Probably because they are seen and heard everywhere. They are in Courts, in Bars and Pubs, in Parties, in Golf Courses, in Flights and Airports, in offices after work times, just everywhere. Women lose out because they end up going home for family after work and not doing general P.R. Men do it all the time because they are free. Secondly, women , overall, do not tend to be overwhelmingly pushy about big money. But when it comes to work , they are no less. They work hard and volunteer for all the causes and meaningful issues. So yes, I suppose I agree with Charlie Evine that women work more for the cause than for the money.
Bill, while I cannot disagree with the point about gender disparity, I will take issue with these lists as a basis for demonstrating the extent of the problem.
If a list requires payment of a fee to be included, for example, then gender disparity simply means that men were more willing to pay to be featured, not that they are better mediators or more highly regarded in the market. Or if the list is one in which parties/corporate counsel are asked to provide opinions, typically it is the professional being evaluated who provides the name of the parties to be queried. Obviously, they don’t refer list-makers to any parties who were unhappy. (Also there is no science in whether the queried parties are qualified to provide views, or whether they have had more than one experience on which to form their opinions…) So, again, the list may say more about an ability to self-promote than genuine reputation or skill.
Finally, none of the lists, as far as I am aware, purport to verify the number or types of mediations that mediators may claim to have conducted….
Again, not to deny there is a problem in gender in disparity, just that lists that are not based on objective methods of data collection or reliable feedback from parties are of dubious value in reaching any sort of conclusions.
Fair comment Mike. But, as you yourself have so often said (and I sgree), there is very little “non-marketing” information available about mediators. So perhaps it is inevitable that lists such as these become a common currency.
True, although there are a number of attempts to create meaningful lists. For example, in mediation there is obviously the IMI list, which is limited to those who have met both certification requirements and provide party feedback. In arbitration, there is the Energy Arbitrator’s List (EAL), which is compiled and edited by peers around the world who are involved in energy and oil/gas disputes. It remains to be seen whether greater use of objective methods of preparing lists will present a different picture of the gender balance (reality could be better but could also be worse).
I agree with Charlie…mediation seems to reflect the society of which it is a part…. In special educational needs mediation (in which pay is clearly not the attraction), the mediators are predominantly female…and this reflects the parties – women in local government children’s services, in schools, mothers as primary carer. It doesn’t have to be that way; it shouldn’t be that way. So why not come out and proclaim ourselves as feminist if we’re concerned about the issue? Some -ists are about positive change, not four letter words. Men can be feminists too, Bill!
Bill, I think the fact that your post has, as I write this, attracted 8 comments, 36 LinkedIn shares and 13 Facebook likes speakers for itself. Whatever your view it’s clearly an important discussion. I’d like to broaden the search and add youth – where are the voices and writing of the younger members of our mediation community? The answer right now is probably “in Paris, stupid” but you know what I mean!
I would agree that the representative bank of mediators reflects the wider range of main players in the particular subject matter of the mediation, because parties will feel more comfortable with a mediator who appears to fit the “mould”. For instance, I am a female mediator specialising in Construction and Engineering disputes. I have 15 years experience in the industry. However, I know from my role as a representative that clients feel more comfortable with male mediators, with more years of experience behind them, notwithstanding that, in facilitative mediation particularly, the mediator’s skills in reality testing and encouraging “thinking outside the box” are often more important than technical knowledge. However, the presumption in favour of the mediator evidencing a long record of technical or legal experience also flows from the widely held misunderstanding by clients of the mediation process, whereby parties often assume the mediator has a role as decision maker. I have found this assumption can be very difficult to redress even after clear explanation to clients of the mediator’s function. In my opinion, another important factor is age, as parties must have confidence in their mediator and such feelings of confidence are often generated by the gravitas imparted with advancing years. So, it maybe that in some sectors (e.g. construction) there are not enough female mediators of a certain age, as women only started to enter such sectors in the last couple of decades, but that, as time moves on, these female mediators will accrue both the necessary experience and gravitas to give comfort to parties of their capabilities.
First let me ask.. why end the article that asks some valid questions with a comment suggesting the world of gender politics is “dangerous”? Second…the invisibility of women is due to our perceived lack of value. This view is not confined to one area of the globe. It’s everywhere – it just looks different in different places. Less obviously missing are the men from less privileged communities also. We live in a world where the lives of some people are automatically considered more valuable than others. Like most of our encounters the presenting issues obscure the complex and multi layered foundations that provide the plinth for our principles to rest upon. Our (the mediator) function in the world is to facilitate communication, which fosters collaborative working styles and which can deliver acceptance for and celebration of diversity and difference….there is no disputing the route is often long and painful. But, ..if we are to achieve social equality people have to make themselves heard. Political Correctness? If ever there was a “dog whistle” phrase that provides perfect cover for bigots this is it. My (more measured) responses to this can be seen in my post https://www.linkedin.com/pulse/article/mind-your-language-jane-swain-llb/edit
Thanks Bill for stimulating this important discussion;
which I suggest could be widened from the issue of gender representation
globally in Commercial Mediation to how we can each support the growth of a
broad base of mediators across the mediation space.
Touching on the gender issue here, I agree with Charlie
that the $ involved has a strong influence on who is drawn to and commissioned
to do work in the Commercial space. I consider it is also about ‘who’ chooses the mediator;
one may say the parties in theoretical terms although it is probably more
accurate to say it is their legal representatives. In large scale litigation, there are likely to
be QCs involved and perhaps a gender imbalance of males on each team making it perhaps
more likely that a male mediator is chosen.
Here in NZ we have a number of outstanding female
mediators operating in the commercial space, I offer out a challenge to the
gatekeepers of the mediation process to use these skilled professionals and
observe the depth of value they deliver.
In summary, to me it is not simply about gender but
rather it is about widening the pool of mediators available so as a mediation community
we can offer the broadest possible range of skilled practitioners available. I note Geoff’s observation/question of where
are the youth mediators. I offer us all
a challenge to make it a goal this day; this week or this year to offer support and mentoring to at
least one other mediator; imagine the impact if every reader of this blog took
up this mantle.
I also can’t help but conclude by noting the obvious
irony of a top ten or exclusive list of mediators and the competitive frame such
a list fits within, in a field where we ought to be striving for collaboration.
Thanks again Bill,
Just a word of thanks to everyone who has participated in this discussion, both here on the Kluwer mediation blog and also on LinkedIn where a good deal of vibrant comment has also taken place! I have really enjoyed the exchange. There are many issues in mediation which need a good airing (of which this is but one) and I hope we will see your comments on the site often in future! Bill
I agree with Charlie…mediation seems to reflect the society of which it is a part…. In special educational needs mediation (in which pay is clearly not the attraction), the mediators are predominantly female…and this reflects the parties – women in local government children’s services, in schools, mothers as primary carer. It doesn’t have to be that way; it shouldn’t be that way.