Here is another excerpt, one which considers the practical implications of the discussion in the previous post.
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i. Reflections on the Role of Gender
My own experience as a mediator has been primarily in commercial and civil disputes, which differ markedly from family or divorce disputes. Women are not as numerous in these cases, either as litigants, as lawyers, or as mediators. Yet many of the women one does encounter are quite able to be aggressive, and do not seem overly conciliatory.
However, both as a woman and a mediator, I have also seen and heard from other mediators that women are often more relationally oriented than men. Sometimes this works to a woman’s advantage, as, for example, when a woman mediator attempts to thaw hostility between warring parties. However, some women may have more difficulty representing their own interests.
ii. Case Example
In a case I mediated many years ago, a family was suing their real estate broker. Only the wife attended the mediation. Although both sides were represented by attorneys, the attorneys were fighting. As a firm believer in self-determination, I decided to have the parties speak together away from the attorneys in a room with me.
In retrospect, it seemed to me that the male real estate broker was driving a hard-nosed bargain, albeit with a smiling face at times, while the woman was trying to negotiate with a more open heart and mind. I felt in retrospect that she had been disadvantaged by her willingness to be more sincere and relational. It also seemed obvious it was a gender issue.
Thus, joint sessions, and perhaps even mediation, may not be advisable and may be potentially unfair for some women.
3. Toward a Case-By-Case Approach
I believe most people can function adequately and even do well in mediation, especially with the right help and in the right context, so long as there are not gross psychological or financial power imbalances at play.
The lawyers are crucially important. Even if a person is deflated, or even if they are in “freeze,” if they are represented by an attorney, the team together may be able to mobilize an adequate, effective, healthy, sympathetic response.
However, if the lawyers are not able to strike an effective balance between competition and collaboration, it may make settlement difficult, if not impossible.
For example, in the real estate case I described above, I was in a real conundrum. The lawyers were at each other’s throats. It was logical for me to assume we would do better without them in the room.
However, if I had it to do again, I would not have had the parties negotiate without their lawyers. I would have engaged, instead, in extensive caucusing—which I believe works better for those who have trouble articulating their own interests directly in front of an adversary.
In a separate caucus, a party can affiliate or bond with the mediator. This provides a safe place for giving voice to her/his needs and interests.
Clearly, these issues need to be resolved on a case-by-case basis. And here, our own idealization of mediation and/or ourselves as mediators can be an obstacle. Had I not been a true believer in self-determination, would I have handled the real estate case described above differently? Probably, the answer is yes.
In summary, mediators should at least learn to consider, and hopefully to recognize, when factors such as gender or trauma are operating in a way that unfairly disadvantages either side during the course of mediation.