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ABSTRACT
Women lawyers are still grossly underrepresented in arbitration which is a field of big business where high incomes are made. It is dominated by big law firms. Till two decades ago the number of women in these firms was small, but as in many countries women meanwhile outnumber men in legal education, the law firms have to hire women increasingly as they need the female talent. On associate level women meanwhile have a fair share. The question arose amongst practitioners which impact an intrusion of women in this formerly male field would have. Can women negotiate as successfully as their male colleagues and do they judge differently? That means that the questions dealt with over many years in projects on gender and judging appeared in a new context.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 I use “legal professions”as a term which includes all jurists in Germany who share the same legal education and qualification: judges, prosecutors, lawyers (in the sense of advocates), notaries, higher civil servants. I use legal profession in line with the international usage for “practising lawyers” (advocates).
2 “International arbitration has become so important that during the last decade or so, most BL [big law] litigation departments have been restructured and even renamed to signal the firm’s ability to handle international disputes through arbitration and mediation. … BL is also involved in planning and drafting most efforts to reform arbitration procedural rules and treaties through organisations such as the International Bar Association and consultations with U.N. organs and agencies” (Gómez & Galanter Citation2022).
3 “Large law firms perform [also] other roles in the international arbitration field, for example sponsoring the myriad professional and academic conferences devoted to international arbitration, law school programmes, student competitions, and the establishment of arbitral institutions (i.e., centres that administer arbitration proceedings)” (Gómez & Galanter Citation2022).
4 The act did not come. The initially planned Equal Pay Act was replaced by a Entgelttransparenzgesetz (Pay Transparency Act) of 6th July 2017, applicable since 6 January 2018. It does not give a claim to equal pay, only an individual right to information about the remuneration of a comparable colleague in companies with more than 200 employees. If there is discrimination on the basis of gender, the disadvantaged employee may demand the remuneration that he or she would receive if there were no gender discrimination. As expected, the impact of the act is low. Germany ranks high – in the sense of negative - in international statistics on the gender pay gap. https://www.destatis.de/Europa/DE/Thema/Bevoelkerung-Arbeit-Soziales/Arbeitsmarkt/Qualitaet-der-Arbeit/_dimension-1/07_gender-pay-gap.html. In 2019 it was calculated at 19% (in Western Germany 20%, in the former communist Eastern part of Germany at 7%), the adjusted gap however is only 6%. https://www.destatis.de/DE/Presse/Pressemitteilungen/2020/12/PD20_484_621.html.
6 SpeedNet means that a handful (3-4) participants stand at high tables and every couple of minutes a bell rings and they have to move on independently to other tables to meet and talk to other participants. This gives the chance to be introduced and get to know many of the participants.
7 Most participants wore suits and dresses in dark colours which fit the usual dress code in big law firms, but some with a plunging neckline as a feminine accent and elegant (very) high heels.
8 These in-house advocates only have limited rights of audience at court. Amongst in-house lawyers who have a full admission as advocates, with full rights of audience, women are 44 per cent.
9 The percentage of women in the fully equipped W3/C4 professorships is 121 of 773 = 15.7 per cent, in the “smaller” W2/C3 professorships 32 of 141 = 22.7 per cent.
10 German Statistical Office (Destatis) 2019/2018.
11 In the first legal examination, however, around 1/3 more women than men fail (Glöckner et al. Citation2018; Schultz et al. Citation2018; Towfigh et al. Citation2014).
12 To give an example of the then prevailing law firm culture: “In the mid-1990s a large well-known German law firm was reluctant to keep a junior partner in employment when it had become known that she was pregnant. Part-time work was out of the question. When she was expecting a second child she was told that this definitely was the moment to quit” (Schultz Citation2003b).
13 Data from Juve Azur 2017, in some cases there are also intermediate levels: Salary Partner, Junior Partner, Senior Associate. Juve is a publishing house which does so-called azur surveys on young lawyers every year. https://www.azur-online.de/azur-umfragen/.
15 The advantages and disadvantages of private arbitration are clearly listed at https://de.wikipedia.org/wiki/Schiedsgerichtsbarkeit.
16 The case of the former President of the Hessian State Court and Court of Appeal, who had received a fee of 1.342 million marks from the IG Metall union in 1996 as an expert in a conciliation procedure and resigned from his office at the State Court due to fierce public criticism, attracted a lot of media attention. As a result, Hesse's regulations on sideline activities for judges and civil servants were tightened. Cf. also the SPIEGEL article “Raffkes mit Robe” of 25.11.1996 https://www.spiegel.de/spiegel/print/d-9122769.html.
17 and they can “seek enforcement anywhere in the world. Such flexibility has made international arbitration increasingly attractive to parties involved in complex commercial contracts, infrastructure agreements, and foreign investment. … The most common users of international arbitration are large multinational corporations and, more recently, states regarding foreign investments” (Gómez & Galanter Citation2022).
20 https://globalarbitrationnews.com/international-arbitration-statistics-2018-another-busy-year-for-arbitral-institutions/. Links to more institutions: http://www.disarb.org/de/0/content/links-id34. No data were available for the International Trade and Arbitration Commission which however handled the largest number of arbitration cases in the years covered.
21 I would like to thank Beata Gessel-Kalinowska, expert in arbitration, the moderator of the Munich event on women in arbitration for providing me with the statistics. She is among the “Most in Demand Arbitrators” and was awarded the title of “Lawyer of the Last Three Decades” in Poland on 4.12.2018. https://gessel.pl/de/news/dr-beata-gessel-kalinowska-vel-kalisz-mit-dem-titel-rechtsanwalt-der-letzten-drei-jahrzehnte-ausgezeichnet/.
25 Enrolment figures in mediation programmes and communication courses show a considerably higher interest and participation on the part of women.
26 Test yourself for your gender stereotypical perceptions. You will be amazed. https://implicit.harvard.edu/implicit/takeatest.html. The Harvard University website provides access to Implicit Association Tests - IAT - which were developed as part of a “Project Implicit” on “implicit social cognition - thoughts and feelings outside of conscious awareness and control”.
27 Uwe Jean Heuser Die ZEIT of 24.10.2018 ‘No Fear! A sensational study shows: When it comes to economics, the sexes have different preferences. Businesses and society must rethink their strategies for compensating men and women.' https://www.zeit.de/2018/44/geschlechterunterschiede-studie-vorlieben-handlungsweisen-chancengleichheit. But see also Weibler, Jürgen (Citation2016) “There is no such thing as a female management style.”
29 The differences in decision-making behaviour have been tested on dilemma cases, such as the “Board of Karneades”, developed by the Greek philosopher Karneades, where first-year law students learn about the apologetic effect in a so-called supra-legal emergency: two sailors are shipwrecked and drift in the sea with a plank that can only carry one of them. Everyone has to decide: Should I conquer the plank for myself and let the other one drown (and am I punishable then?), or do I nobly leave the plank to the other one and drown myself? Female adolescents had more problems in dilemma cases to choose alternative A or B and tried a “third way” to find a way out of the situation to avoid a black and white solution.
30 This literature led to a flood of popular science writings titled, for example, “Men are from Mars and women are from Venus”, “Why men can't listen and women can't park”, etc.
31 Cf. the Harvard Concept by Roger Fisher, William Ury and Bruce Patton, which has meanwhile been published in countless editions and by various publishers.
32 There are several guides for women to negotiate, including Henningsmeyer Citation2019; Kimich Citation2015; Whitaker & Austin Citation2001.
33 The House of Lords with the so-called Law Lords was the highest instance in the U.K. In 2009 the Supreme Court was established for this purpose.
34 In so-called common law based legal systems (U.K., Commonwealth countries, USA, British Canada and others) court decisions are based on precedents, i.e. cases that have already been decided. The judges have a greater scope of decision than judges in a so-called civil law system, in which the application of codified law using formalised techniques leaves less room for individual interpretation. In common law systems, therefore, more importance is attached to the personality of the judge than in civil law systems, such as in Germany, where the judge is regarded as a neutral and objective instrument of third power. For this reason, it is particularly difficult in these legal systems to talk to judges about a gender bias.
35 Most examples are taken from our comparative collections on “Gender and Judging” (Schultz & Shaw Citation2013a), “Women in the World's Legal Professions” (Schultz & Shaw Citation2003), but also from special issues of the “International Journal of the Legal Profession” on “Women in the Judiciary” (Schultz & Shaw Citation2012), “Gender and Judicial Education” (Schultz et al. Citation2016), “Women and Judicial Appointments” (Mesengu & Schultz Citation2020) and the OSLS issue on “Gender and Judging in the Middle-East and Africa” (Lindbekk & Maktabi Citation2021).
36 In Germany uniform premiums were introduced at the end of 2012. The potentially higher cost risk caused by pregnancy and childbirth had already been compensated in 2008 after the Equal Treatment (Anti-Discrimination) Act had been passed.
37 In the USA psychological empirical research has dealt with women as expert witnesses and found some evidence that male experts were evaluated more positively than the female experts, although the effects of gender are complex and sometimes depend on the circumstances of the case (Larson & Brodsky Citation2014; Neal Citation2014). Patterns of gender bias were found in undergraduate college mock trials (Tucker Citation2019). In Citation1987 Nancy Marder had already dealt with the research on gender dynamics and jury deliberations.
38 We were able to evaluate the decisions of about 250 participants, of whom about 35 per cent were women.
39 A few years ago, I wrote an editorial for a judges and prosecutors journal. The (male) editor in charge wrote to the (female) colleague who had commissioned the article from me: “Enclosed suggestions for the editorial, which seems to me to be more masculine and austere in style than soft and feminine. Be it.”
40 In Slovenia in a research project of the University of Ljubljana, more than 50.000 judicial decisions between 1992 – 2020 are analysed, deconstructing the objectivity of judicial decisions, including the impact of gender and analysing the use of stereotypes in the discourse of the Slovenian Supreme Court (e.g. Hafner et al. Citation2020). For theorizing judicial objectivity comp. Breda Citation2017.
41 These were arguments used against admitting women to law faculties and the judiciary in many countries at the beginning of the 20th century.
42 The experiment is widely reported https://www.leadershippsychologyinstitute.com/women-the-leadership-labyrinth-howard-vs-heidi/.
43 Lisa Nienhaus, https://www.zeit.de/2020/05/frauen-fuehrungsposition-erfolg-macht. There may be wishful thinking in this evaluation. The repetition of the experiment is hardly known.