The Feminization of the Law and the Death of Litigation

My neighbor teaches biology at Michigan State University.   Among other things, he teaches students who are earning their veterinarian degrees.  Once in conversation it came up that when he started teaching, 95% of his students in veterinary medicine were men, now 95% are women.  I said (stupidly): must be this is because more of the work has to do with smaller animals and didn’t require the physical demands of working with horses and cows.

He corrected me.  The work was the same.  Women, he explained, could handle large animals just as well as small ones. They just relied on skills other than brute strength to get the job done.

I realize that the same trend has been happening in the law for quite some time.  All lawyers used to be men.  [The women who should have been lawyers were doing the work as “legal secretaries” – getting paid like secretaries and being treated like the women in the TV series Mad Men.]

Now I suspect at least half of law school graduates are women, and most of the people being elected to the bench are women.  At the same time, the process of resolving disputes has changed dramatically – fewer trials, more mediation.

Litigation is different than mediation.  There is a piece to litigation: the pushing and shoving piece, the test of wills and skills piece, the winner or loser piece, that mediation lacks. To a large degree, litigation is a man’s world.  Not that some women aren’t very good at it – but that, at its core, it’s a manly endeavor – where the client hires a warrior to do battle for them and inflict pain on their adversaries.

Women are different than men as litigation is different than mediation.  Whether these differences are a function of biology or society – I don’t know.  [Although I will say, having raised three daughters, the mechanisms through which society continues to keep women in their place are alive and well – maybe not as overt as a generation ago – but alive and well nevertheless.]  That said, I am also inclined to believe that women are wired differently when it comes to dealing with conflicts. Without meaning to stereotype, what my neighbor said about female veterinarians could be said about female lawyers: they get the job done – but with less brute force.

Women make great lawyers, and their approach to the dispute resolution has changed the practice of law and will continue to change it.  Perhaps, as happened with veterinary medicine, the law will be dominated by women in the foreseeable future – or maybe men will continue to be part of the practice, but the process will become more feminized (should I say civilized?).  If, and as, that happens, I wonder whether the death of litigation, as we have known it, will be far behind.