Beyond Symbolic Recognition: Implicit Bias and Women’s Contributions to Alternative Dispute Resolution

Women have had an undeniable presence in the field of Alternative Dispute Resolution (ADR) since the increase of women attorneys in the 1970s (1). However, the ADR system appears to be hesitant to fully integrate women’s contributions beyond symbolic recognition. Even though the American Bar Association has recognized this barrier through the establishment of the Women in Dispute Resolution Committee (2), progress to normalize women’s work in ADR has been slow and waning (3). Academia points to a key theme in this field’s stagnation: implicit bias from historical norms and gendered preference. The system struggles to completely comprehend the worth that women, and overall cultural diversity, brings to mediation, separate from image and brand recognition (4). Implicit bias from the majority dilutes the progress that women have made (5), and only through swift recognition and normalization of women’s work can these biases lose their grip on ADR. 

Understanding gender implicit bias in ADR is best understood by Erin Alvarez’s interpretation of gender sidelining (6). Gender sidelining is a “subtle but significant” accumulation of incidents that serve as a detriment to gender and cultural diversity (7). For instance, the actions taken in the mediator selection process that can be identified as ‘purposeful strategy’ is heavily influenced by lawyer and institutional biases that lean towards choosing men over women at a significant rate (8). This is not saying that men in higher positions or male lawyers purposefully create invisible barriers, implicit bias operates unconsciously in mediation through preferring familiar gender counterparts or unknowingly following historical stereotypes (9). For example, Alvarez cites surveys where male lawyers in charge of the selection process say that they look for an “elder statesman” (10). These comments are made in ‘good faith,’ but uphold a persistent tradition of selection that prevents skilled women or other culturally diverse mediators from being considered over white, older men.

Women bring a lot of great nuance into the mediation field through their interpretations of the process, and ‘good faith’ comments are a significant obstacle for this progress. Both women and men mediators operate on the instrumental mediation goals, meaning that success is driven by agreements (11). However, women mediators commonly add transformative elements through relationship maintenance and social justice angles that are yet to be routinely embraced by male mediators (12). Women mediators tend to operate on an “intrapersonal” scale that has historically been seen as weak, but has been shown through multiple studies to have profound positive effects on the participants satisfaction and even the mediator’s job satisfaction (13). Identifying and countering these implicit biases is essential to normalizing the contributions women have brought to ADR since the 1970s.