Mediation has a Young Women Problem

My clients in estate and trust litigation include all kinds of different people. They are corporate fiduciaries, children and friends of the decedent, surviving spouses, creditors, and nonprofit organizations. All of these clients have different needs from my representation. Some want me to walk them through the litigation experience one step at a time. Some need me to listen as they cry and scream. Some want high-level legal education. Some come to me because I am a woman and they want a woman’s empathy and compassion. 

It is fortunate that in the litigation world in 2021, clients have the option of hiring female litigators. Historically, we have been hard to find. In 2016, women outnumbered men as registrants in ABA-approved law schools for the first time in history. In 2020, women continue to outnumber men with a 54% enrollment rate according to a study by Enjuris.com.

Unfortunately, those numbers are not reflected in the field of mediation. In Florida, of the 3,284 certified circuit civil mediators, only 31% are women according to the Dispute Resolution Center. The percentage is smaller when you factor in whether the mediator is also a member of the Florida Bar. The problem really comes into focus when you try to find someone that specializes in the field of estate and trust law. While hiring a mediator with experience in your field is not required, it is certainly helpful when dealing with a nuanced trust dispute. 

Imagine that I represent a surviving spouse. She’s the decedent’s second wife but they were together for twenty years. She helped the decedent build his business and took care of him during their last years together. The decedent left a significant portion of his estate to her but his daughter takes issue with his estate plan and files a lawsuit. Two women clients pitted against each other and required to go to mediation. 

Yet, when it comes time for me to assist my client in the selection of a mediator, my only choices are men. Predominantly men in the back end of their careers using mediation as a retirement plan. Now, I have to convince my client that this man will care about her case as much as I do. That he will do his best to foster a resolution so she can move on with her life. That he will be a neutral facilitator. My opposing attorney has to do the same. 

The problem is that I have a really hard time doing that. More often than not, I do not genuinely believe that my male colleagues understand my client’s position. That they won’t judge her for being a younger surviving spouse. I don’t believe they will come to the mediation without bias. I don’t know for certain that they actually care about their job as a mediator as much as they care about getting a paycheck in retirement. I have been burned in the past with this exact problem and that wound is slow to heal. 

I became a certified mediator for this purpose. To fill the gap that absolutely exists in the estate and trust arena. I know the toll that litigation takes on clients. I have also seen the great benefit my clients received by resolving disputes and moving on with their lives. I wanted to be a mediator because I care about people and value service to others. This is not my retirement plan. It’s part of my daily business. 

I can’t be the only one. We need other women, especially in the field of estates and trusts, to start mediating. Not simply as a retirement plan but as another service you offer in your business. I want women that care about my clients and cases to mediate for me. I want kindness and understanding. We also need our male colleagues to honestly assess their biases. Do you suffer from “evil step mom” syndrome? Can you shake your preconceived notions about younger spouses? It’s time that we all walk into the mediation room with open minds to open the dialogue. 

I am hopeful that in a few years I will be able to offer my client the names of several qualified female mediators alongside the names of my male colleagues. Today, though, I’m encouraging women to step in. If you are resolution minded and like problem solving or if you’re empathetic and a good listener, consider mediation as an additional service to your colleagues. We need you.