Elizabeth Bader Is mediation fair to women?

I grapple with this question in my new article, The Psychology and Neurobiology of Mediation  in the Cardozo Journal of Conflict Resolution.

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Elizabeth Bader, The Psychology and Neurobiology of Mediation,

Volume 17 (2) Cardozo Journal of Conflict Resolution (Winter Issue).

Table of Contents

I.  Introduction

II. The Neurobiology of Mediation: An Overview

. . .

IV.C.2.            The Role of Gender

     A new model of the human threat response argues that, in addition to fight, flight, and immobilization/freeze, our responses to threat may also include a “tend and befriend” response—a type of protective response more characteristic of women.  This strategy includes trying to affiliate with others in one’s group for mutual defense, presumably to protect offspring. 1

    The model is based, in part, on existing knowledge regarding the effects of oxytocin on affiliative behavior.  Oxytocin is a hormone generated in great volumes in the female body during childbirth and breastfeeding.  As a neurotransmitter in the brain, it is also known to promote nurturing, couple bonding, and trust.  2

      To the extent the tend and befriend response includes a tendency to respond to threat by seeking affiliation, rather than competition, it may put certain people, especially women, at a disadvantage when dealing with a high-functioning, highly competitive, ego-inflated person on the other side. This concern was first raised many decades ago. 3

   There is an overlap here between issues of trauma and gender.  Although our culture tends to equate PTSD with men returning from war, women are twice as likely as men to develop PTSD. 4 This may be due in part to the invasive type of trauma women are more likely to experience, namely childhood sexual abuse and rape. 5

   At least some women may be disadvantaged by having less confidence during competition.  A recent study found that when presented with difficult feedback in competitive situations, women found it more difficult than men to recover their effectiveness; women were less able to inhibit the amygdala. 6

and activate the prefrontal cortex 7 after receiving the challenging feedback. 8

     Research suggesting that male lawyers tend to be more overconfident than female lawyers also supports this view. 9

    Thus, there is recent support for concerns raised decades ago about the potential unfairness of mediation for women due to their tendency to be more “relational” (as opposed to adversarial) than men, or for other reasons.

COMING SOON:  Reflections on the practical implications of this research, and a case analysis. To read the next excerpt when it is distributed, please sign in here.   Your information will never be shared.

  1.  See Shelly E. Taylor et al., Biobehavioral Responses to Stress in Females: Tend-and-Befriend, Not Fight-or-Flight, 107 Psychol. Rev. 411 (2000) (“We suggest that female responses to stress may build on attachment/caregiving processes that downregulate sympathetic and hypothalamic-pituitary-adrenocortical (HPA) responses to stress . . . (A) tend and befriend pattern may be oxytocin-mediated and moderated by, among other things, sex hormones . . . .”).  See also Shelley E. Taylor, Tend and Befriend Theory, inHandbook of Theories of Social Psychology: Vol. 1. 32, 42 (Paul A. M. Van Lange et al. eds., 2012) (tend and befriend appears to be more consistent with women’s hormonal profiles).
  2. Marieb & Hoehn, supra note 14, at 599; cf. also Porges, supra note 2, at 293 (“oxytocin can counter the defensive behavioral strategies associated with stressful experiences”).
  3. Decades ago it was argued in an influential article:

    If two parties are forced to engage with one another, and one has a more relational sense of self than the other, that party may feel compelled to maintain her connection with the other, even to her own detriment. For this reason, the party with the more relational sense of self will be at a disadvantage in a mediated negotiation.

    Trina Grillo, The Mediation Alternative: Process Dangers For Women, 100 Yale L.J. 1545, 1550 (1991).

    More recently, it has been argued, that although these concerns have not been much discussed recently, that may need to change.  See generally Danya Shocair Reda, Critical Conflicts Between First-Wave and Feminist Critical Approaches to Alternative Dispute Resolution, 20 Tex. J. Women & Law 193, 193–229 (2011).

  4.  Sabra Inslicht et al., Sex differences in fear conditioning in posttraumatic stress disorder, 47 J. Psychiatr. Res. 64, 64–71 (2013) (women are twice as likely to have PTSD as men, citing studies); David J. Morris, The Evil Hours: A Biography of Post-Traumatic Stress Disorder 64–65 (Eamon Dolan & Houghton Mifflin Harcourt, 1st ed. 2015) (noting that although rape is the most common and injurious form of trauma, “the bulk of PTSD research is directed toward war trauma and veterans.”).
  5.  See Maria Gavranidou & Rita Rosner, The Weaker Sex? Gender and Post-traumatic Sex Disorder, 17 Depression & Anxiety 130, 130–39 (2003).

    Additionally, a national survey found that more than one in three women and more than one in four men have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.  Michelle C. Black et al., The National Intimate Partner and Sexual Violence Survey, 2010 Summary Report, National Center for Injury Prevention and Control Centers for Disease Control and Prevention 2011,  http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf (last visited, July 28, 2015) (noting more than one in three women (35.6%) and more than one in four men (28.5%) in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime).

  6. The amygdala is a part of the brain that helps stimulate the brain stem to activate the sympathetic nervous system in response to threat.  Robert Sapolsky, Taming Stress, An Emerging Understanding Of The Brain’s Stress Pathways Points Toward Treatments For Anxiety And Depression Beyond Valium and Prozac,289 Sci. Amer. 86, 86–95 (2003).
  7.  On the prefrontal cortex, see Marieb & Hoehn, supra note 14, at 437 (the prefrontal cortex is a complicated region of the brain, which is involved in intellect, complex learning, and personality).  It is in a unique position to control both cognitive and social processes because of its extensive connections with other parts of the brain.  Jennifer S. Beer et al., Frontal Lobe Contributions to Executive Control of Cognitive and Social Behavior, in The Cognitive Neurosciences III 1091 (Michael S. Gazzaniga ed., 3d ed. 2004).
  8.  Kishida et al. took small groups of people of equal intelligence, as determined by IQ, and gave them a set of problems to solve.  They then broadcast how they performed relative to their peers on the problems.  This depressed everyone’s performance.

    Some people were, however, able to recover, and were identified as “high performers.”  These people were able to inhibit the amygdala through activation of the dorsolateral prefrontal cortex.  Most notably, many fewer women were able to recover even though, as noted above, all participants were equally equipped to solve the problems in terms of intelligence.

    For the full study, see Kenneth T. Kishida et al., Implicit signals in small group settings and their impact on the expression of cognitive capacity and associated brain responses, 367 Phil. Transactions Royal Soc’y B. 704, 704–16 (2012).

  9.  Jane Goodman-Delehanty et al., Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, 16 Psychol. Pub. Pol’y & Law 133, 133–57 (2010) (female lawyers showed evidence of less overconfidence).