More women lawyers, less litigation?

08 August 2016 By Bob Murray
Bob Murray

Statistically, the future of law belongs to women, writes Bob Murray.

Sorry guys. There will soon be more female members of the profession than male, if only because in law, as with most subjects, there are now more women graduates than men. Combined with affirmative action, this means that we can look forward to a time when there will be more female partners, managing partners and law leaders generally.

As a behavioural neurogeneticist, I look on this fundamental shift and ponder what it will mean in terms of how law will be practised in the future. Women are neurobiologically and genetically different from men, and this stems from the situation that humans found themselves in a couple of million years ago out on the African savannah. Their work – their differing roles – dictated the ways their genetics expressed themselves, making males more suited to (and getting more pleasure from) hunting, and women to gathering and socialising.

Of course, while this is generally true, there were exceptions, as there are today, and the expression of our genetics is often moderated by our experience. There are women who are up for the hunt and there are men who enjoy a more ‘gathering’ role, and both can be exceptional in these roles.


However, a study published earlier this month highlighted a fundamental and important difference between the sexes, which, in the female-dominated profession of the future, will make for a profound change in the way that law is practised. For a start, it may signal a future in which there is much less litigation.

What the researchers found was that, in decision-making pairs, women seek to find compromise and men almost always go for the extreme, uncompromising alternative. In practice, this means that a matter in which a male client is advised by a male solicitor is far more likely to end up acrimoniously in the courts than if one or other of them is female.

The research was published in the prestigious Journal of Consumer Research. The authors of the study found that compromise “always” occurs among two decision-makers when a woman is involved (female-female pairs or mixed-gender pairs), but “hardly ever” when the pair of decision-makers are men.

It turns out that when men are in the presence of other men, they feel the need to prove their masculinity and both tend to push away from the compromise option because the compromise is seen as “weak” and “non-masculine”. Other studies have shown that extremism is a more masculine trait.

Interestingly, according to the study, the decisions we make in pairs or in single-sex groups may be very different than those we make alone.

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The researchers conducted four experiments with 1,204 students at two US universities, and a fifth experiment using 673 online participants. The studies involved different pairs of a man and woman, two women, and two men making decisions on such things as buying printers, toothpaste, flashlights, tyres, hotels, headphones, different sizes and shapes of grills, what prizes to seek in a lottery, and whether to buy risky or safe stocks with corresponding high and low returns.

“No matter what the type of decision is, we see the same effects,” the researchers concluded. “The compromise effect basically emerges in any pair when there is a woman. However, surprisingly, when you have men choosing together, they actually tend to push away from the compromise option and select one of the extreme options. In contrast, individuals and mixed-gender and female-female pairs will likely go for the middle option since it seems reasonable and is easily justified.”

According to the study: “When making decisions together, men take actions that are maximally different from feminine norms, which prioritise moderation, and maximally similar to masculine norms, which prioritise extremity. Furthermore, because a female presence makes the masculinity of men in male-female dyads obvious, in these pairings we observe compromise behaviour consistent with that of individual decision-makers and female-female dyads.”

In contrast to maleness, say the researchers, womanhood is not precarious and does not need the same level of public defence as manhood. That's why we observe the compromise effect in the joint decisions of two female partners.

Interestingly, from a legal point of view, the research found that compromise is criticised among other men, but embraced by women.

Apparently, only men judge other men harshly when they suggest the compromise option to a male partner. It doesn't happen when a man suggests the compromise option to a female partner or when women suggest the compromise option, so it's really specific to men dealing with other men.

In terms of organising a law business, practice leaders should be aware of the fact that when two male solicitors make decisions together about how to handle a matter, they are more likely to choose an extreme option, often, perhaps, regardless of the interests of the client. It might make sense, therefore, to make sure that a woman is always a member of the decision-making team. Certainly an all-male contingent sent to negotiate with the opposing side is, according to this research, a thoroughly bad idea.

“What we're finding is when men have to choose alone, most select the compromise option,” say the researchers. “But when they have to make the decision with another man, they tend to choose one of the extreme options.”

An all-male decision-making group, they conclude, may well take the more aggressive option – even when they know intellectually that it’s wrong. Previous research has shown that this male tendency to opt for extremes tends to fall off with age. There may be more compromises if the male decision-makers are over 50.

Unfortunately, that’s just when male partners tend to retire.

Bob Murray is a principal at Fortinberry Murray.

More women lawyers, less litigation?
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