The Ohio State University Moritz College of Law December 2009
ADR @ Moritz

Chauvinism at the Mediation Table: A Challenge to Neutrality

Erin HopperBy Erin Hopper
Class of 2010

I’m not your typical women’s libber. I don’t consider myself a feminist and I tend to roll my eyes, figuratively, if not literally, when people use terms like “womyn” or “herstory.” But recently, I have found myself reacting to how prevalently sexual prejudice persists in the professional world. Specifically, this has come up during mediations I have conducted as part of the Mediation Practicum.

During a class discussion last month, a fellow student described a situation in which a female judge had a case between two men, both from a foreign culture. Aware that these men might have certain gender-based beliefs and practices, the judge assumed (probably correctly) that the chances of this case coming to an amicable resolution would be improved with a male mediator. Obviously this (female) court saw merit in changing the gender of the neutral in the case. So the judge referred the case to my male colleague. To his credit, he was indeed able to help them settle their dispute.

Our class discussion centered on whether or not a gender-based referral by a court to ADR was a good thing. I argued that the system should not bow to inculcated prejudicial attitudes, foreign or not. These parties object to working with a judicially-appointed mediator if she is female? Fine. Their remaining alternative is to deal with a female judge, who would undoubtedly apply and impose the law, cultural prejudices be damned.

Back in class, I then argued that a court evaluating gender discrimination should not use a lower ‘scrutiny level’ than when it evaluates race-based discrimination. I wondered aloud how the system should or would react to a litigant who requested a mediator based on skin color.

A similar incident occurred during a co-mediation with Professor Bardsley. This case involved a much more subtle manifestation of prejudice: one of the attorneys apparently found it a physical impossibility to make eye contact with me. Also, he seemed incapable of hearing my voice, evidenced by his tendency to interrupt me or disregard my words altogether. Notwithstanding this frustrating experience, the case ultimately settled thanks to the valiant efforts by everyone [else] in the room.

My third experience happened during my very next mediation. One of the parties was explaining to me his sad story about how he had cosigned on a loan for his daughter’s car. The daughter defaulted on the loan, and the lender pursued collection on the guaranty. He explained that he had never actually seen the car and that she (his daughter) should not have bought it in the first place because “she’s a girl [and] [g]irls don’t know anything about cars.” Forgive me for not waxing empathic. (And besides, my two-liter, four-cylinder, 160 horsepower, VTEC, manual transmission Honda Civic Si begs to differ.) He then proceeded to try to gain my sympathy by explaining that he should not have to suffer the consequences of his irresponsible daughter’s behavior.

We have come a long way since the “Suffering Suffragettes” of the early 20th century, but we are obviously not there yet. And so, in the meantime, I think young female mediators, and every other young female for that matter, are just going to have to keep pushing back. They don’t see you? Stand taller. They don’t hear your voice? Speak louder. They don’t like what you did? Try harder. Just don’t ever give up. As Booker T. Washington so eloquently stated, “Nothing ever comes to one, that is worth having, except as a result of hard work.”

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The Caucus, the newsletter published by the Moritz Program on Dispute Resolution, is designed to share ADR news with the Moritz community and beyond, as well as provide Moritz students with information regarding externship and employment opportunities. Questions regarding this publication should be directed to Erin Archerd, Langdon Fellow in Dispute Resolution.