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The International Council for Commercial Arbitration (2020) and other sources, for example, those by Goodwin (2020) and Turner (2019), highlight the fact that women remain underrepresented in arbitration and mediation all over the world. Gender diversity and the intersection of gender and mediation or arbitration are critical topics to discuss (Goodwin 2020). In fact, even the UN focused on that problem, as well as its outcomes, which, according to the institution, include the underrepresentation of womens interests in negotiation and conflict resolution processes (Turner 2019). As alternative dispute resolution options, mediation and arbitration could be defined as the more informal method and the more formal one (respectively); both involve a neutral third party that either does not have the authority to make decisions (in the case of mediation) or has been given that authority by the disputing parties (in the case of arbitration) (Chew 2017; Cole 2020; Goodwin 2020). Both of these activities are extremely important options in conflict resolution, which further supports the significance of investigating them (Cole 2020). This paper considers the topic of the intersection of gender and mediation and arbitration, problematizes it, and demonstrates the flaws of stereotyping people and ignoring the benefits that diversity can bring to conflict resolution. It has concluded that while it cannot be claimed that the differences between men and women are decisive, the diversity of modern-day teams can and should be employed to the benefit of arbitration, mediation, and the people involved in those activities.
Representation of Men and Women in Arbitration and Mediation
There are significant reasons why the lack of women in the fields of arbitration and mediation is a problem. Apart from the fact that representation presupposes equality (for instance, equal opportunity, which, to this day, the fields of arbitration and mediation do not offer women), there are other positive features to it (Cole 2020; Turner 2019). Thus, women in arbitration would be expected to improve the representation of womens interests, which follows from the fact that women are likely to be familiar with female issues and, possibly, be more receptive to their discussion. Admittedly, this benefit should not involve direct favoritism or bias, but it is highlighted by the UN as the means of leveling out the field in terms of representing male and female interests (Turner 2019). Furthermore, female arbitrators and mediators can offer female empowerment in the form of new role models (Turner 2019). Overall, it is often acknowledged that it is critical to increase female representation in arbitration and mediation.
The fact that currently, women are underrepresented in mediation and arbitration to the point where the UN has to emphasize the issue is undeniable (Turner 2019). Examples include the Financial Industry Regulatory Authority, which provides the relevant services, reporting that in 2019, less than 30% of its arbitrators were women. In a similar manner, its mediators were less than 30% female, and the percentages for diverse races and different sexual orientation groups were even lower (Volpe 2019). Research shows that despite numerous attempts to improve diversity in the field (Turner 2019; Volpe 2019), robust diversity is yet to be achieved.
The presented figures demonstrate that the issue is not exclusively gender-based, but for the lack of women, the primary cause of insufficient diversity is the fact that the fields of both arbitration and mediation have historically been male-dominated. In many cultures, this state of affairs is rooted in religion or sociocultural norms (Zion-Waldoks, Irshai, and Shoughry 2020). Furthermore, an important issue is a direct discrimination, as well as indirect bias. Research shows that women in mediator and arbitrator positions experience these problems and have to directly work with people who exhibit gender-based disrespect, which might be among the reasons why women would be unwilling to take up related posts (Goodwin 2020). Furthermore, there is the issue of insufficient opportunities to become an arbitrator or mediator.
Indeed, the reasons for female underrepresentation in the field are rather diverse. For example, in an article by Catherine Turner (2019), the results of a qualitative study with a sample of 13 women involved in mediation were presented. The paper recognized the difficulty of mediation, as well as the challenge of becoming a female mediator, which resulted from multiple issues, including being afforded fewer opportunities to become one and the possibility of an adverse reaction to a female mediator. This literature, however, suggests that the primary reason for the underrepresentation of women in arbitration and mediation is sexism, which further supports the idea that the situation needs to be changed.
Differences between Men and Women
The issue of sexism is that it has been historically hindering the process of effective employment of women in different fields by providing pseudo-scientific justifications on the matter. For example, John Gray (2012) wrote a book dedicated to the differences between women and men that was based predominantly on anecdotal evidence. Created by a relationship counselor (Gray 2012), the book was supposed to assist people of different genders in working through conflicts by considering the differences between men and women. However, the book has been criticized rather extensively for not focusing on scientific evidence and perpetuating harmful stereotypes instead (Cameron 2007; Carothers and Harry 2013). Since the books publication, multiple works have been dedicated to debunking the myths of significant and especially inherent differences between sexes.
An example is an article by Carothers and Harry (2013), which considered psychological differences between sexes, including those related to empathy, masculinity and femininity, the Big Five/OCEAN model (openness to experience, conscientiousness, extraversion, agreeableness, neuroticism), as well as the inclination to science, and so on. The authors were able to conclude that most personality traits and behaviors demonstrated differences but not exclusivity for men and women. For instance, femininity and masculinity were shown to be a continuum. The authors described this tendency as the different traits benefiting from being perceived and presented as dimensional rather than taxometric and continuous rather than discrete. Therefore, Carothers and Harry (2013) concluded that it was not reasonable or fair to make assumptions about gender based on the features that were statistically more common among the representatives of a specific sex. The findings were used by Carothers and Harry (2013) to claim that women and men are neither from Venus or Mars; they are from the planet Earth, and they should not be divided into starkly divergent categories.
The contentious nature of the cited book by John Gray (2012) is understandable; the issue of perpetuating the idea that men and women are fundamentally different is clear from the feminist perspective (Cameron 2007), as well as the organizational view on the diverse workforce (International Council for Commercial Arbitration 2020; Turner 2019), which is critical for arbitration and mediation. In particular, it is not unlikely to perpetuate biases and outright discrimination, and it prevents men from viewing women as their equals (Cameron 2007). However, the inappropriate approaches to this topic, which have indeed taken place (Cameron 2007; Zion-Waldoks, Irshai, and Shoughry 2020), should not prevent people from recognizing differences between sexes and genders. There are some statistical differences between men and women, and while they are not conclusive, and they might change with time, they are also likely to exist in the present, which means that using them to the benefit of mediation and arbitration is reasonable. Thus, it is important to consider the different skills or traits that are required for mediation and arbitration, along with the possibility of those skills or traits being represented among men or women.
Skills Needed for Arbitration and Mediation and Their Distribution Between Men and Women
In mediation and arbitration, diverse sets of skills are appreciated, and certain abilities and values are also required. Thus, Turners (2019) respondents, for example, highlighted the fact that they did not want to come into mediation with an agenda (specifically, the agenda of advancing womens rights), which hints at the importance of impartiality and integrity. Those values would be obviously required for a person who is supposed to resolve conflicts. That said, the crucial nature of equality and a sense of equality was recognized by the respondents as well. A mediator or arbitrator needs to be aware of systemic inequalities and injustices to produce just solutions or suggestions (depending on the nature of the conflict resolution).
Some of the other critical skills that Turners (2019) respondents suggested included communication (in particular, the ability to listen and build rapport) and empathy, both of which were perceived as typical abilities for women. The fact that women appeared non-threatening was also considered a plus for mediation purposes, as well as their ability to be a quiet and supportive presence for the parties. These skills were considered soft skills by the participants, and they were expected to be gendered and important for mediation. It should be pointed out that the article did not involve statistical analysis of the distribution of the stated skills and abilities between genders, which is a limitation. The findings can only suggest that the sample of the people involved perceived those abilities to be gendered.
Other sources can provide additional information about the skills required for a mediator or arbitrator. Goodwin (2020) proceeds to find in a literature review that abilities like self-reflection and positive thinking seem to be more prevalent among women, and they can be important in the matters of arbitration or mediation as well. Furthermore, ethical standards are an important skill or ability to have, according to Goodwins (2020) research. The author further highlights that while some research suggests that women might score higher on ethics than men, other research also suggests that women are often perceived as deceitful, which can be considered a drawback that might prevent a woman from successfully performing her duties as a mediator or arbitrator. Additionally, women are shown to have an inclination for mutually beneficial outcomes in negotiations (Goodwin 2020). Thus, both positive and negative things about women can be uncovered in terms of the prevalent features, abilities, and skills.
Naturally, there are specific skills that enable mediation and arbitration, which are predominantly achieved through observation and practice, as well as mentoring. The results of the research in terms of direct performance of men and women are not conclusive, with both genders appearing to score higher in some of these studies and lower in others and with women demonstrating worse performance ratings in a 2015 study and similar ones to men in a 2019 research (Goodwin 2020). Importantly, women might not have enough opportunities to train and especially practice those critical skills, but in 2016, a training program for diverse candidates was launched by CPR, FINRA, and LCLD, all of which disclose that their diversity is still lacking (for example, the number of FINRAs female arbitrators amounted to 29% in 2019) (Cole 2020, 15). Thus, there are efforts meant to increase diversity in the field, but they are still in the process of achieving practical results.
As can be seen from the description of womens strengths, there is indeed an argument to be made about women being especially well-suited to be mediators and, possibly, not being as suitable for arbitration. Since the difference between the two is the authority to make a decision, womens softer, more positive, and assisting approach to managing conflict might be more indicative of mediation capabilities (Goodwin 2020; Turner 2019). On the other hand, the fact that women might be more inclined to produce solutions that benefit both parties would undoubtedly be especially favorable for an arbitrator to have, and the same can be said about ambiguously improved ethics and communication skills (Goodwin 2020). Furthermore, it is important to remember that statistical averages cannot predict the way an individual will act (Carothers and Harry 2013), and the supposedly unhelpful characteristics would not necessarily be a disadvantage for an arbitrator. For instance, an arbitrator does not become less efficient from having the ability to frame the events of negotiations in a positive light. Rather, both men and women can perform as arbitrators or mediators, and their individual abilities should be used to the benefit of a team. Thus, it is possible to consider several recommendations that are based on the presented literature.
Literature-Based Recommendations
Based on the literature, the following recommendations can be offered. First of all, it is clear that bias and prejudice are not helpful. Research directly indicates that the differences between sexes exist on a continuum, which makes assumptions based on sex not unlikely to fail (Carothers and Harry 2013). Unconscious bias is especially dangerous since, as follows from its name, it is difficult to recognize. However, it is important to pay attention to the potential bias sources in arbitration and mediation and avoid them.
On the other hand, it is possible to employ bias to the benefit of a negotiation consciously. For instance, the idea that women are less threatening than men most likely results from a bias about the likelihood of being confronted by a woman (Turner 2019). This bias is not helpful to the person holding it because women are fully capable of confronting and harming other people. However, this bias might be beneficial to the women who use it to calm down the parties in negotiations and generally project that image of a helpful, supportive, quiet woman who can assist with conflict resolution. It just should be remembered that bias is generally harmful (see the comment about women being seen as deceitful), which implies that the eventual goal should be the reduction of bias (conscious or unconscious) for the improvement of overall interactions.
Secondly, research still indicates that differences between sexes and genders exist, which provides an opportunity for their exploitation in a diverse environment. A mediation or arbitration company that does not employ a diverse workforce is going to be missing out on the opportunity of using such differences (Cole 2020, 15). While it is still possible that the skills and traits that are commonly found in the representatives of one sex might appear in the other sex (Carothers and Harry 2013), it is more reasonable to employ the people who are particularly likely to have those traits and skills. For example, in the field of arbitration and mediation, the fact that women are, on average, better listeners and more empathetic is important and a good reason to employ women (Turner 2019). Other relevant reasons include the fact that the involvement of women is demonstrably helpful in achieving better results, as well as the opportunity for creating female role models in the field, which are still not represented very well (Cole 2020; Turner 2019). Furthermore, teamwork is a critical element of making diversity work. Indeed, it is important to ensure that negotiations are exploiting the opportunities offered by diverse teams, including the strengths of female and male mediators and arbitrators. Overall, the primary organizational recommendation is to employ women and actually give them the opportunity to work as an arbitrator or mediator.
The latter is particularly important because, as it was established, women are often denied the opportunity to train and practice their arbitrator or mediator abilities (Cole 2020; Turner 2019). Therefore, there is a difference between meaningful female employment and the less significant approaches that are not going to help the companies involved achieve full diversity. Cole (2020) points out several strategies that can assist in the process, including alternative appointment solutions. They could, for instance, involve the appointment of arbitrators, greater use of permanent panels, which would reflect the diversity of an organization, greater information dissemination about arbitrators and their evaluations. Basically, they are the means of ensuring that the recruited women are going to be actually employed in arbitration or mediation.
It should be pointed out that activities that aim to improve diversity in mediation and arbitration have become more and more widespread, and that tendency should be supported until the outcomes fit the goals (Volpe 2019). However, apart from that, it is also important to ensure that women have sufficient entry points and opportunities to train to become mediators or arbitrators (Cole 2020). These solutions come from a higher level of intervention than organizational, but they are still worth considering in this essay.
Furthermore, it is important to address the root of bias and discrimination in this particular instance: gender inequality. Women arbitrators and mediators experience discrimination, and they find solutions to it on a personal level, including maintaining a neutral demeanor, managing communication when stereotyping occurs, and just using positivity to improve their personal well-being (Goodwin 2020). However, organization- and government-level interventions against discrimination are also key to reducing bias and improving female involvement in conflict resolution to the benefit of everyone involved.
Finally, there are research and education solutions. Research suggests that the different initiatives meant to increase female participation in arbitration and mediation are not always successful (Cole 2020; Turner 2019; Volpe 2019). It is also very scarce; there is little investigation specifically on the topic of gender diversity in arbitration and mediation, and the specifics of the field might have implications for the context of the research. It is necessary to understand which programs work to which extent and in which context. It is furthermore essential to study the different contexts and propose new solutions, testing them to see if they are effective. Finally, it is critical to increase the knowledge of the issue, which is admittedly rather niche, but which falls into the general problem of female underrepresentation in different spheres. By spreading awareness and researching the question, solutions to it will be more likely to be found.
Conclusion
To summarize, female representation in arbitration and mediation remains lacking, which may have significant negative outcomes for women, deprives them of important opportunities, and is probably the result of complex sociocultural factors. Some issues have been associated with finding differences between men and women, in particular when relevant articles and books were shown to perpetuate stereotypes. However, it is impossible to deny that, either as a result of inherent diversity or socialization, there are differences between sexes, and some of them can be used in favor of mediation and arbitration. For instance, women are shown to be effective at mediation and arbitration through their skills and traits, which include being a good, empathetic listener who is generally perceived as non-threatening. Such conscious use of bias needs to be employed while taking into account the possibility of subconscious bias, which is shown to be rather prevalent; for example, women might be perceived as deceitful, which is not equally helpful. Additionally, teamwork can be used to guarantee the employment of the different types of strengths and weaknesses that diverse teams have.
The presented literature is not conclusive; in fact, the research shows that significantly more studies are required on the topic. However, based on this investigation, the current research does not allow claiming, for example, that arbitrators come from Mars and mediators come from Venus. Rather, both men and women can be gifted in diverse fields, and the diversity of their teams should be employed to the benefit of everybody involved. Therefore, the primary recommendation of the project is the need to battle sexism both on organizational and other levels. While subconscious bias might be useful in certain instances, it is mostly harmful, which is why it makes sense to try and reduce it through various programs, some of which have already been implemented with diverse outcomes. Furthermore, it is critical to investigate such activities that are meant to reduce sexism, as well as the ones that are supposed to improve female representation, to determine their effectiveness. Education is a vital element, as well as research. However, more practical solutions, for example, enhancing the ability of women to actually practice their skills as an arbitrator or mediator, are also important. Overall, the underrepresentation of women in arbitration and mediation is clearly an issue, and it requires additional research to be appropriately resolved.
References
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Carothers, Bobbi J., and Harry T. Reis. 2013. Men and Women Are from Earth: Examining the Latent Structure of Gender. Journal of personality and social psychology 104 (2): 385.
Chew, Pat K. 2017. Comparing the Effects of Judges Gender and Arbitrators Gender in Sex Discrimination Cases and Why It Matters . Ohio State Journal on Dispute Resolution 32: 195-217.
Cole, Sarah Rudolph. 2020. Arbitrator Diversity: Can It Be Achieved? Washington University Law Review 98: 1-31.
Goodwin, Gaedria. (2020). Perceptions and Challenges of Female Workplace Mediators and How They Overcome Them . PhD diss., Dallas Campus.
Gray, John. 2012. Men Are from Mars, Women Are from Venus. New York, NY: Harper.
International Council for Commercial Arbitration. 2020. Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings. International Council for Commercial Arbitration. Web.
Turner, Catherine. 2019. Soft Ways of Doing Hard Things: Women Mediators and the Question of Gender in Mediation . Peacebuilding 8 (4): 383-401.
Volpe, Maria. (2019). Measuring Diversity in the ADR Field: Some Observations and Challenges Regarding Transparency, Metrics and Empirical Research . Pepperdine Dispute Resolution Law Journal, 19: 201-213.
Zion-Waldoks, Tanya, Ronit Irshai, and Bana Shoughry. (2020). The First Female Qadi in Israels Sharia (Muslim) Courts: Nomos and Narrative . Shofar: An Interdisciplinary Journal of Jewish Studies, 38 (2): 229-261.
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