Citation: 39 Judges J. 21 2000

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Alternative Dispute Resolution andthe Potential for Gender Bias

ursuant to a court order Sharonreported to tihe mediator's office forher first scheduled mediation with

her husbant, James. James, who had nevercared for the children and who had beenverbally abusive to Sharon over the years,was asking for a divorce, for custody of thechildren, for the bulk of the marital assets,and.for child support. Sharon, the children'sprimary caretaker told the mediator thatwhile she was willing to get divorced, shewanted custody and needed child support inorder to adequately care for the children.The mediator never asked whether she hadreason to fear James, and she did not vol-unteer that infornation

When the mediation started, Sharoncoudil notfind her voice. .ames framed theterms of the mediation. He calmlyexplained to the mediator that Sharon wasbeing irrational that they could jointly par-ent the children. And as the mediator began

to question Sharon as to why a joint parent-ing agreement would not work, she felt adull ache in the pit of her stomach. She hadnever been able to stand up to James andknew that she would not be able to this tineeither

Over the past twenty-five years, judges,lawyers, and litigants have increasinglyemployed alternative dispute resolution(ADR) rather than or prior to engaging intraditional litigation. ADR, which includessuch processes as arbitration and mediation,is widely considered a less expensive,quicker means of resolving contested mat-ters. The availability of ADR has helpedcourts clear congested dockets and movecases more quickly through their systems.Moreover, some forms of ADR, mostnotably mediation, are touted as vesting liti-gants with greater control over and a more

By Leigh Goodmark

personal stake in the process of reachingagreements. For many litigants, then, ADR,is a godsend, making the experience ofinteracting with the legal system a morepersonal, less onerous one.

This may be the case for some litigants,but not all. For some women, ADR notonly fails to help them achieve equitableagreements, but also disempowers and dis-enfranchises them. As increasing numbersof jurisdictions begin to require mediationin a variety of contexts ranging from familycases to small claims matters to employ-ment discrimination suits, it becomes espe-dally important to consider whether media-tion is appropriate for all litigants in allcases.This article will look at the potentialfor gender bias in the practice of ADR,focusing on mediation. The article will alsoexamine how the attitudes of the partici-pants-mediators, lawyers, and litigants-can jeopardize the fairness of the mediation

Illustration by Andrew 0. Alcola

process unless they are acknowledged andaddressed.

Mediation and the Potential forGender Bias

Power. Successful mediation assumesthat the parties to the mediation begin fromequal positions of power. Power comes in anumber of forms: economic, intellectual,physical, emotional, and procedural.1 Butmany women are trapped in relationships--familial, employmen or contractual-that

Leigh Goodniarkis the Assistant Staff Director of the ABA

Center on Children and the Law.

are characterized by power imbalances.Mediating in the face of these power imbal-ances undermines the premise that media-tion gives the parties greater control andself-determination than traditional litigation.

The impact of power imbalances onmediation has been most thoroughly dis-cussed in the context of intimate relation-ships. For example, issues of power andcontrol are central to the relationshipbetween an abused woman and her batterer.Throughout their relationship, the battereruses a variety of techniques ranging fromisolation and emotional and economicabuse to intimidation, coercion, threats, andphysical violence to establish his power andmaintain control over his victim. Moreover,the batterer will frequently blame the victimfor his abuse, making her believe that if sheconforms her behavior to the standards herequires, the abuse will stop. As one battererexplained in a letter to his wife's parents:

I have, time and again, with varyingdegrees of success and volume, triedto bend her outlook and rhetoric ....At times, when there is no alternativebut to do things in a certain, specificway, I have resorted to violence to

get the job done. Situations deterio-rate from: Maybe we should re-assess this, to I don't think this is agood idea, to This is a bad idea, to Ifyou do this, it will alienate us, to I'mnot going to let you do this, to If youdo this, I will destroy the kitchen, toIf you do this, I will break your arm(threat only), to If you do this, I willbreak both legs and your neck. (Atwhich time, I am no longer threaten-ing-I am 100% sincere.)2

Even after physically separated, the bat-terer will continue to use the children,finances, and any means available to contin-ue to control the victim.

The batterer in an abusive relationshiphas the power-economic, psychological,physical, and emotional. Expecting him torelinquish that power during mediation isunrealistic. At the most basic level, the bat-tered woman's concern for her physicalsafety may preclude her from feeling com-fortable mediating as her batterer glares ather from across the table. Even if the victimbelieves that the mediation setting is secure,"[p]hysical safety alone does not erase theeffects of psychological terrorism.' 3

Memories of the batterer's power, and theway he has used that power, trigger fear ofthe abuser. As one abused woman noted,"When he had power over me, he didn'thave to exert himself The more powerful Ibecome [in getting away from him], themore irrational he becomes. I wonder,would he hurt me physically "4 Thesememories may render the victim inarticu-late or angry, making it difficult for her toexpress her position during mediation. Thevictim may feel pressure to settle or to com-promise, continuing to believe that theabuse (this time, the abuse associated withthe process of mediation) will stop if shesimply decreases her demands. In negotia-tions, the batterer may continually changehis demands, a tactic designed to let the vic-tim know that he still maintains the powerto mold the agreement, and therefore herlife, according to his wishes. As one advo-cate observed, 'Typically, the battererdemands compromises that seem innocentto the mediator but speak only of power,control, and safety issues to the batteredmother... . 5 Because of the power imbal-ances inherent in a battering relationship,many battered women's advocates haveargued that cases involving domestic abuseshould never be mediated.

Simply excluding domestic violence

o1 a

cases from mediation will not fullyaddress the problem of gender bias andpower imbalances, however. Other cate-gories of cases involve the same dynam-ics of power and control. For example,some studies estimate that over half of allcases referred for divorce and/or custodyand visitation mediation involve issues ofdomestic violence.6 Frequently, however,those cases are not labeled "domestic vio-lence" cases and mediation is deeniedappropriate. The failure to screen forintrafamily violence in other casesinvolving intimate relationships increasesthe probability that the mediation will beflawed by the same problematic powerdynamics.

Additionally, many women are just adivorce away from poverty The powerimbalance created by one spouse's greateraccess to resources can render mediationunfair, as do the procedural advantagesavailable to the spouse with greater income.As one woman going through mediationnoted, "Since we've been divorced, he'staken me back to court again and again andagain. He's remarried, he has the kids, hemakes several hundred thousand dollars ayear (and I work for minimum wage). Hewon't stop until he has taken everythingfrom me, stripped everything from me. Hestill needs to control me absolutely."7 Thewealthier spouse can afford to ask for con-tinuances while mediating at length, know-ing that the failure to produce an agreementwill not preclude him from paying his rentor feeding his children. The economicallydependent spouse does not have the luxury

of time, especially where temporary supporthas not been established or is inadequate.

Moreover, the problem of gender basedpower imbalances in mediation is not con-fined to cases involving families. In sexualharassment cases, for example, the dynam-ics of power and control are similar to thosefound in domestic violence cases, despitethe lack of an "intimate" relationshipbetween the parties. "In the workplace, par-ticularly where women occupy sex-atypicaljobs, gender-based power and its potentialfor being destructive becomes moreacute.'8 Women who have been sexuallyharassed, which can include beingridiculed, called humiliating and profanenames, or being sexually and/or physicallyassaulted, often feel the same powerlessnessin the presence of their harassers that bat-tered women experience in the presence oftheir abusers. The dynamic in these cases"involved power. fear, and coercion."9

Women confronting these dynamics in sex-ual harassment cases are no more able tonegotiate from a position of equal powerthan battered women and should not berequired to participate in mediation.

Marginalization of Women's Issues.Negotiation is often referred to as "bargain-ing in the shadow of the law" Using media-tion, in many cases, increases the risk thatlegal issues involving women will bepushed further into those shadows.

Using ADR can marginalize women'slegal issues in a number of ways. First, rou-tinely using mediation in certain types ofcases involving women increases the possi-bility that the issues involved will be char-acterized as "nonlegal" or unworthy of theattention of the adversarial system. Foryears, battered women's advocates foughtto establish the legal principle that batteringis a crime, rather than an internal familyissue to be addressed with cooling-off peri-ods and marital counseling. Prosecutors andcourts now routinely charge, try, and con-vict abusive men for assault, threats,destruction of property, rape, sexual assault,and other crimes against their spouses, girl-friends, and family members. Similarly, inthe civil system, restraining orders havebecome powerfurl tools for preventing fur-ther violence and protecting batteredwomen and their children. Requiring medi-ation of such cases casts them back into theshadows instead of sending the strong pub-lic messages that battering will be punishedas any other crime and that battered womenwill be protected by the courts. Mediation

threatens the gains that advocates for bat-tered women have made in publicizingthese issues and ensuring that the abusersare held accountable for their actions.

Additionally channeling cases involvingwomen's issues through ADR systems pre-cludes advocates from developing strongprecedents in areas of the law involvingwomen. Without adjudication of cases inthe adversarial system, advocates have nomechanism for developing the law and nocases to refer back to when trying to stretchthe boundaries of the law. Some cases "arebetter suited for a mechanism that involvesfact finding and decision making. This isparticularly true where, ultimately, we needto draw bright lines delineating acceptablebehavior in the workplace. Sexual harass-ment is one such case type."'0

Moreover, the use of mediation couldactually cause women to lose some of thelegal ground that they have gained. As theHonorable Harry Edwards, Chief Judge ofthe United States Court of Appeals, Districtof Columbia Circuit, has noted, 'There is areal danger... that these new rights willbecome simply a mirage if... 'familylaw' disputes are blindly pushed into media-tion "'II For example, many states' custodylaws now require that courts consider evi-dence of domestic violence when makingcustody and visitation determinations.Some of these laws prohibit an award ofcustody or even unsupervised visitation to aparent who has been abusive to the otherparent. But mediators often push partiestoward joint custodial agreements, seekingcompromise without considering the inabil-ity of the parties to work together given theviolence that looms over their relationship.These same mediators may tell a batteredparent that her unwillingness to accept jointcustody "may result in an award of custodyto the other spouse as the 'friendlier' par-ent? 12 Given the overwhelming number ofunrepresented women in family law casesand some mediators' failure to inform theparties about the law; the battered womanwho enters mediation might never knowthat she has the right to oppose a joint cus-todial arrangement based on the history ofabuse. She might actually believe that sherisks losing her child if she does not accepta joint custody agreement. The pressure toaccept a joint custodial arrangement ignoresthe advances in the law that protect batteredwomen, and provides a powerful exampleof how mediation can deprive women oftheir hard-won rights.

Finally, mediation encourages, and in asense, demands, that the parties "compro-mise in order to develop a solution "'13 Butin some cases, and about some issues, thereshould be no compromise. Mediation ofsome categories of cases deprives womenof the clear societal sanction that shouldaccompany certain types of behavior. Inmediation, a party is required to concedepoints in the interests of reaching an agree-ment. In domestic violence and sexualharassment cases, however, compromisemeans accepting part of the blame for theabuser's behavior. This is blame that thevictim does not deserve and guilt that shemay be actively working to alleviatethrough counseling in order to cope inthe afternath of the abusive treatment.Moreover, it is blame that the perpetratorhas been trying to convince the victim washers all along. If the victim had only lis-tened more carefully, if she had dressed dif-ferently, if she had kept quiet, if she hadacted more "femnine" or 'womanly"-ifshe had done all of the things that theabuser wanted her to do, she would nothave had to suffer. "Pressure for the victimto accept at least partial responsibility forthis illegal conduct can only be eliminatedby using the law to protect her rights and topunish the transgressor."14

The suggestion that mediation be usedin "simple" or acquaintance rape caseshighlights all of these problems.15

Mediating acquaintance rape cases becauseof the legal system's failure to treat suchrapes as seriously as stranger rapes cedesthe legal argument that, in fact, rape is raperegardless of the relationship between theparties. All rapes should be vigorously pros-ecuted; all rape victims are entitled to theprocess of the criminal system. Pushing

rape victins towards mediation rather thanprosecuting acquaintance rape cases alsodeprives those seeking to enforce rape lawsof valuable precedents to use in their suag-gle to hold acquaintance rapists criminallyliable for their actions. Moreover, acquain-tance rape is beginning to be treated muchmore seriously within the legal system;diverting such cases to mediation at thispoint risks losing the gains in the law thathave been achieved. Finally, shuntingacquaintance rape into mediation blunts themessage that rape is wrong, that it is behav-ior for which there is no excuse. The focuson "help[ing] the parties to accept the eventby allowing the parties to fully express neg-ative emotions about the dispute" and

'help[ing] the parties to produce an agree-ment for the future that both parties canaccept,' 16 ignores the reality that one partyhas engaged in criminal behavior; that oneparty has violated the other party; that oneparty's actions were simply wrong and aredeserving of societal sanction.

Participants and Gender BiasMediation is inappropriate in cases

where there is a elear power imbalance orwhere there is a societal stake in developingthe law through the adversarial process. In awide range of other types of disputes, how-ever, mediation can also work to the disad-vantage of women if the players in theprocess are not sensitive to issues of genderbias. This section considers how the partici-pants in the mediation process contribute tothe disadvantaging of women.

Mediators. Peihaps no one in the sys-tem has as great an impact on the processof mediation as the mediator. 'The media-tor helps the parties define the issues, gener-ate potential solutions, validate feelings,and, in some cases, confront reality.' 17 Therelative comfort levels of the parties andtheir sense that they are bargaining withinan equal power structure hinges on themediator's ability to create such a feeling inthe minds of the parties and to remedypower inequities between the parties.

The sensitivity to the treatment ofwomen's issues in mediation depends inlarge part on the sensitivity of the mediatorto women's concems. Just as minority liti-gants bring different perspectives, values,and cultural histories to the mediationtable, s women have issues and insights thatare unique to their gender that mediatorsshould understand and appreciate. The

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potential for gender bias exists in both maleand female mediators; all need training toperceive and address how their notionsabout women impact their ability to con-duct fair mediations. Although the mediatorstrives to create a neutral environment with-in which to mediate, the mediator's ownperspectives and biases will necessarilycolor how he or she perceives the positionsof the parties. For example, a mediator whois a sexist might not appreciate the econom-ic consequences of divorce for the woman,and may believe that her property and sup-port demands are unreasonable as a result.A sexist mediator may believe that behaviorthat a woman experiences as sexual harass-ment is actually good-natured teasing andpush her to back down from her position. Amediator who embraces traditional genderroles might not see why the failure to hireavailable female contractors or constructionworkers is a forn of gender-based employ-ment discrimination, which could color hisor her handling of the mediation. All media-tors should be thoroughly trained on genderand cultural issues to ensure that biases arenot distorting the mediation process.

Mediators must take special precautionsin cases involving domestic violence.Whether the mediator believes that domes-tic violence cases should never be mediat-ed, or can be mediated with special safe-guards in place, he or she must first be ableto screen for and identify cases involvingabuse. '"As an essential first step, mediatorsmust learn that violence against women iscommon, frequent, and pervasive in oursociety.' 9 Mediators must understand thatthe dynamics of domestic violence mayrender the victim unable to mediate from aposition of equal strength. Mediators shouldexplicitly question all mediation participantsto determine whether domestic violence is afactor in the relationship and should seek toprovide a balance of power if the mediationgoes forward They must also acknowledgethat in some relationships, they will beunable to rectify the power imbalancebetween the parties and that, therefore,

some cases should not be mediated at all.Mediators must remember that "[vliolenceand coercion cannot be mediated" '20 andconsequently they should not try to resolvedomestic violence issues through media-tion. Likewise, mediators should not beresentful of the victim's mistrust of a

process that requires her to face her batterer.Oftentimes, mediators ask "Why are youfrightenedT' and claim that I will protectyou," but the battered woman knows thatfew have lived up to that promise.2 Howcrucial is it for mediators to acquire thisknowledge? "When mediators cannot rec-

ognize and respond to domestic violence,they may literally be jeopardizing theirclients' lives."

22

Lawyers. For many lawyers, sending aclient to mediation means an opportunity totake a break from a difficult or demandingcase. Nonetheless, lawyers have a role toplay in the mediation process and shouldnot abandon their clients in mediation. Infact, the lawyer's failure to be involved inthe mediation process can produce especial-ly adverse results for some clients.

Many unseasoned litigants do notunderstand what ADR is, how it works, andwhat their rights and responsibilities arewithin the process. It is the lawyer's job toexplain the process thoroughly to the clientso that the client can make an informeddecision as to whether she wants to engagein mediation. Especially in cases wheremediation may be inappropriate, as withthose discussed above, the lawyer has aresponsibility to explain why the clientmight find mediation uncomfortable oruntenable. That mediation is mandatory insome cases does not relieve the lawyer ofhis or her duty to counsel the client. Simplyaccepting that all divorce cases must bemediated, for example, ignores the lawyer'sobligation to ensure that clients who havebeen or are currently in abusive relation-ships understand the process and are willingto go forward with it Lawyers, like media-tors, should examine their cases to deter-mine whether mediation is appropriate andmust understand the dynamics of genderand power in order to counsel their clientseffectively.

Similarly, lawyers have the opportu-nity to protect their clients within theprocess. Clients who have been bat-tered, or who are naturally shy, inarticu-late, or unassertive, may find them-selves particularly lost in a mediationenvironment, unable to voice their con-cerns or defend their positions. Thelawyer "can potentially protect clientsin a mediation both by speaking ontheir behalf and also, in terms of per-ception, by effectively standing betweenthe client and the opposing party orattorney."23 Disempowered womenengage lawyers specifically because theyare seeking a voice within the legal system.The lawyer's opportunity, and indeed his orher obligation, to serve as that voice is notsuspended when the client enters mediation.

Finally, lawyers fail their female clientswhen they push them to accept mediation

agreements that do not meet their needs orachieve their goals. Lawyers who acceptprevailig gender stereotypes may fail tounderstand what their clients are hoping forin a settlement. They must take care to lis-ten to and really hear the goals and theneeds of their clients, without allowing theirbiases to mute the client's voice. A lawyerwho believes that all women value mother-hood may work harder to retain custody forhis client to the exclusion of all other out-comes and may push the client to accept anagreement that undermines her other goals(like obtaining sufficient child support). Theclient, believing that the lawyer is advocat-ing for the settlement based on his legalknowledge, rather than his or her stereotypi-cal perspective, may accept the settlementdespite her belief that she is entitled to agreater share of marital assets or a largerchild support award. Similarly, a lawyerrepresenting a female client in any casewhere her sexual history could be raisedmight encourage her to settle for a lesser

amount rather than try her case, valuing themaintenance of her "good reputatiof overthe compensation for the real harm done tothe client. Needless to say, depending onthe client, these settlements might, in fact,inure to the client's best interests. The pointis that lawyers who push such settlementswithout understanding how their biasesaffect their perceptions of agreements aredoing a disservice to their female clients.Lawyers, too, need to recognize gender biasand understand and counteract its impact ontheir practices.

Women Litigants. Mediation willrarely provide an opportunity to reach a fairsettlement for a subgroup of women. Forsome women, as already discussed, thedynamics of power and control that haveframed the relationships at issue makemediation from a position of equality nearlyimpossible. Other women perceive them-selves as lacking equal bargaining power asa result of their internalization of traditionalnotions of male privilege and a woman's

place. For these women, thinking of them-selves as equals, asserting themselvesstrongly, and insisting on putting their needsbefore those of others is taboo. Their inabil-ity to perceive themselves as powerful intheir daily lives robs them of their actualpower in mediation, and therefore, theirability to bargain equally. Whether mediat-ing the damages in a personal injury case,the amount of rent due to a landlord, or theprovisions of repayment in a small claimscase, these women will not be served wellby the process because of their lack ofempowermentL

Moreover, the cooperative nature ofmediation reinforces the tendency ofwomen who value the maintenance ofrelationships over individual aspirationsto avoid conflict and to achieve consen-sus. When women bargain cooperativelyand men competitively, women arealmost always sure to lose.

(continued to page 46)

Fall 2000 at the National Judicial College

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Lines) are two popular examples. Dialup account users who switch to a"nailed up" connection may noticedramatic changes in Internet accesspatterns. When it only takes a secondor two to access the Internet, insteadof a minute or so, it frequentlybecomes easier to find answers on theInternet than to use a hardcopy refer-ence book that is near your desk.Consumers with nailed up connectionswill eventually find it easier to accessa lawyer through the Internet thanthrough traditional means like theYellow Pages.

Portal. A Website that a large num-ber of users select as their preferredInternet entry point. Many of themajor search engines, like Excite,www excite.com, have tried to becomeportals by adding directories, free e-mail, maps, discussion groups aroundvarious themes, and so on. A VerticalPortal, sometimes called a "vortal,"is a portal targeted at a particularindustry or interest group. Findlaw,www.findlaw.com, tries to be the pre-mier vertical portal for the legalprofession.

Sticky. The quality of a Websitethat makes it inconvenient for users tostop visiting it. For example, Websitesthat provide free e-mail may encour-age users to store address book dataon the Web, because the investment oftime necessary to recreate this infor-mation on another site is impractical.

Suboptimization. Settling for lessthan the highest quality product or ser-vice available. The Internet frequentlymakes this attractive for consumers.For example, the Washington Post'sLegi-Slate congressional informationservice was widely respected for itshigh quality, but it recently went outof business. Suboptimization is

believed to have been one key con-tributing factor: many consumerselected to save money by using freeInternet sites instead of paying expen-sive fees. Some analysts believe thatsuboptimization will result in manyconsumers of legal services opting topurchase legal services throughInternet sites like Arthur Miller'sAmericounsel.com, http:/Aww.ameri-counsel.corn, instead of retaining con-ventional law firms.

Unbundling. Sometimes known as"discrete task representation." Givingclients the option to purchase specificservices, without necessarily requiringthem to enter into a full lawyer-clientrelationship. The Internet makesunbundling more attractive as a busi-ness model. ABA Model Rule ofProfessional Conduct 1.2(c) provides:"A lawyer may limit the objectives ofthe representation if the client con-sents after consultation."

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The Desktop Lawyer software isonly one of many technology-drivenchallenges that the legal professionwill face over the next decade. In myview, other new business models,some of which are hinted at in the def-initions above, will probably be evenmore serious challenges in the longrmn. It will not be easy to work outsensible strategies for dealing with thechanges that technology will bring.The first step toward understandingthe issues is to keep up with the newterminology. A Webpage with hyper-text links to all the Websites men-tioned in this article and other defini-tions of technical terms relevant to thelegal profession is available at:www.netlawtools.com/articles/.

r 0 -

Dispute Resolution(continued from page 27)

Some have argued that despite itsfocus on working through the parties'emotions concerning their dispute, medi-ation discourages the expression ofanger.24 Mediation seeks instead to forgeareas of agreement between the parties;anger is seen as counterproductive whereconsensus is the goal. But the point atwhich mediation is beginning may be thefirst time that the woman involved in themediation has been able to express heranger at her spouse, her boss, or heradversary. Coupling the traditional soci-etal proscription on female anger withmediation's devaluation of anger maycause mediators to silence womenexpressing these emotions for the firsttime, and may ultimately precludewomen from achieving their goalsthrough mediation.

Judges. Judges, too, bear responsibili-ty for ensuring that mediation treatswomen fairly. First, judges, like otheractors in the system, must be sensitive tothe potential for gender bias not only intheir courts but also within the systems towhich they are referring female litigants.Training on women's issues and specifi-cally on the problems that mediationposes for some women is essential.

Additionally, judges should maintainoversight of the mediation programs thatoperate within court systems. "[AIneffective judge with a leadership role inthe court system is in the best position tocoordinate both the policies and proce-dures required for operation of a success-ful [ADR] program: '> If judges requirethat mediators be properly trained, fairlyrepresent the population of potential liti-gants, and screen for issues of domesticviolence and other potential power prob-lems, the problem of gender bias in thesesystems can be alleviated. Judges neednot reflexively refuse to send certainkinds of cases to mediation, but canthoughtfully make determinations as towhether the litigants that they see beforethem will be fairly served by the media-tion process. Moreover, judges should beopen to the possibility that some womenlitigants will be unwilling to mediate andthat their unwillingness stems in partfrom the issues discussed above.

ConclusionAlternative dispute resolution, with its

promise of quicker, cheaper, and moreempowering interactions with the legalsystem, is mandated in a number of con-texts where women have much at stake.Although some women will be able tomediate effectively and some meninvolved in mediation will be sensitive tothe issues discussed in this article, cer-tainly the potential for gender bias withinthe mediation process is great. Failing toensure that mediation not only treatswomen fairly, but meets their uniqueneeds, will foster alienation from alterna-tive forms of dispute resolution and ulti-mately, from the legal system itself.

Notes1. Scott H. Hughes, Elizabeth's Story:

Exploring Power Imbalances in DivorceMediation, 8 GEO. J. LEGAL ETHIcs 553, 574(1995); see also Mor Irvine, Mediation: Is ItAppropriate for Serual HarassmentGrievances?, 9 Omto ST. J. ON Dis. RESOL. 37(1993) (Tower based on gender is not merely adifference in physical strength. It can be ground-ed in the emotional, psychological, or financialhold one person has over another.").

2. Hughes, id at 554.3. Douglas D. Knowlton & Tara Lea

Muhlhauser, Mediation in the Presence ofDomestic Wolence: Is It the Light at the End ofthe Tunnel or Is a Train on the Track 70 N.D. L.REv. 255,268 (1994).

4. Jennifer P Maxwell, MandatoryMediation of Custody in the Face of DomesucViolence: Suggestions for Courts and Mediators,37 FAM. & CONCIIATON Coutrs REV. 335, 348(1999).

5. Interview with Lois Kanter, February 23,2000.

6. Maxwell, supra note 4, at 337 (citationsomitted).

7. Id. at 348-49.8. Inine, supra note 1. at 38.9. Id at 27.10. Id at28.11. Harry T. Edwards, Alternative Dispute

Resolution: Panacea orAnathema? 99 HARv. L.REv. 668, 680 (1986) (cited in Andre R.JIbmgno, Using ADR to Address Issues ofPublic Concern: Can ADR Become anInstrument for Social Oppression?, 14 Omto ST.J. o\ DinsP. R.SOL. 855, 873 (1999).

12. Trina Grillo, The Mediation Alternative:Process Dangers for Women, 100 YALE L.J.1545, 1594-95 (1991).

13. Irvine, supra note 1, at 32.14. Id. at 39.15. Deborah Gartzke Goolsby, Using

Mediation in Caves of Simple Rape, 47 WAS.& La L. nv 1183 (1990).

16. Id at 1203.17. Maggie Vincent, Mandatoy Mediation

of Custody Disputes: Criticism. Legislation, andSupport, 20 VT. L. REV 225,263 (1995).

18. See, e.g., Jessica R. Dominguez, TheRole of Latino Culture in Mediation of FamilyDisputes, 1 J. LEGAL ADVOC. & PRAC. 154(1999); Cynthia R. Mabry, AficanAmericans'Are Not Carbon Copies" of WhiteAmericans-The Role ofAfrican AmericanCulture in Mediation of Family Disputes, 13Oiuo ST. J. oN Disp. RmL. 405 (1998).

19. Maxwell. supra note 4, at 338.20. Id at 345.

21. Interview with Lois Kanter, February 23,2000.

22. Maxwell, supra note 4. at 350.23. Jean R. Stemlight, Lamyers'

Representation of Clients in Mediation: UsingEconomics and Psychology to StnictureAdvocacy in a Nonadversarial Setting, 14 OntoST. J. ON Dts'. RESOL. 269, 356 (1999).

24. See, e.g., Grillo, supra note 12, at 1572-81.

25. The Honorable Gladys Kessler & LindaJ. Finkelsten, The Evolution of a Multi-DoorCourthouse, 37 CAm. UNiv. L Rov. 577, 587(1988).