Mediation: The 'Girly' Litigation?

Abstract

In this article we argue that mediation, as a process, is gendered. Although it is not a simplistic, binary opposition, mediation is primarily gendered female and litigation is primarily gendered male. As a result of this female gendering, mediation is devalued as compared to litigation in North America. In order to demonstrate this, in the first part of our article we focus on (i) the goals, (ii) skills, and (iii) language of mediation. When they are compared with litigation's goals, skills, and language, the gendering of both processes can be identified and the resulting devaluation of mediation observed. The goals, skills, and language of mediation are not simply "female traits" that come naturally to some individuals based on gender. They are real and difficult skills to master, and therefore mediation education is implicated. In the second part of our article we focus on ways to improve the mediation education experience in law schools. We make some recommendations for mediation pedagogy and consider how law professors can better teach mediation so that law students understand and value the process. We conclude by arguing that mediation will continue to be devalued, especially as compared to litigation, until the process is revalued and mediatiors' contributions are appropriately evaluated. By demanding an assessment of mediation success that is not constricted by notions of "female" and "male," both the profile and valuation of mediation and mediators will increase.

Keywords: mediation, women mediators, litigation, mediation pedagogy

JEL Classification: K19, K39, K41