Women, Law and the Negotiation Divide

My paper exploring women’s negotiation performance is out in Pepperdine Dispute Resolution Journal, a publication of Pepperdine University’s School of Law. You can read it here.

Here’s a quick summary for those who don’t want to read 10,000 words:

(1) Negotiation skills are important

With fewer cases proceeding to trial and technology revolutionizing mundane legal tasks, negotiation skills are now more critical for lawyers, regardless of whether they work on litigation or corporate matters.

More generally, they’re crucial for most people working on sales, deals and general business transactions. Nearly everyone who works as a salaried employee has had to negotiate a salary at some point.

(2) Negotiation outcomes show gender-based differences

So far — as of the date of my writing in 2018 — research on negotiations suggests that we’re seeing a gendered effect in negotiation outcomes.

Women, with their general aversion to competitive behaviour and tendency to thinking in relational terms, are underperforming in personal, purely distributive contexts where mainly salaries or numbers are involved.

This doesn’t apply to all women, of course.

And latest research is sensitive to contextual factors as well as intersectional concerns, recognizing that gender isn’t fixed and gendered effects we see in negotiation are fluid.

However, we are still seeing a statistically significant gender-based gap in distributive negotiations. That could mean women aren’t asking or are settling for less. How do we get around that?

(3) Formal training doesn’t always help

Could formal training in law schools help? Not exactly, per Professor Craver’s research from 2016. But we need further research about whether the type of formal training, its duration, and other factors could reduce gender differences in negotiation outcomes.

We also don’t understand enough about context — the prior relationship between parties, relative power distribution, and the role that issues concerning race, ethnicity, immigration status, orientation or other factors play.

(4) Is awareness enough? It depends

Generally, women should be aware of gender stereotypes and negotiation outcome gaps when they’re negotiating for themselves or walking into a numbers’ negotiation.

Those are contexts where they tend to underperform. Statistically, women are far more likely to succeed where they are negotiating for others or where the context is value-creating, non-distributive, i.e. where everything isn’t merely focused on numbers. Consider peace-building negotiations, for instance. Women’s participation has helped create durable peace in many conflict zones.

So we know women should be aware of gender stereotypes and contexts when walking into distributive, numbers’ game, zero-sum, fixed pie negotiations.

But is that awareness enough? Again, it depends.

Here’s what we do know: When women ask for more money, employers generally tend to view them as aggressive, but when men ask for the same thing, they view them as assertive.

And when women don’t ask, as in starting salary negotiations, some women MBA grads leave as much as $1.5 million on table as they are consistently underpaid throughout their careers (see Prof Babcock’s work on this).

So what’s my conclusion for women lawyers, academics, other business or public sector professionals, for distributive contexts where the odds don’t favor them?

5. Some women could benefit from tribal thinking when negotiating for themselves

Generally, when women are negotiating for themselves, they may benefit from trying to think of that as negotiating for their tribe, community, client or family. That could help counter some women’s aversion to individual-gain thinking and bargaining.

6. But really, are we saying that women should ask, but ask nicely?

Perception issues surrounding women’s asking remain. So are we telling women to ask, but ask nicely? I have no shame in telling you that despite three years of work on this, I can’t give you an answer that will succeed in all cases. In part, that is because we don’t understand enough about context and other intersecting factors yet.

Consider the recent gender-based name-calling U.S. Congresswoman Alexandria Ocasio-Cortez experienced. That incident only scratched the surface of what some women of color are up against when negotiating for themselves and their communities.

7. Employers, check your bias

If you’re an employer and find yourself labeling a woman employee asking for money or related benefits as aggressive, pushy, dramatic or emotional, then you should reflect on whether you would label a man asking for more the same way.

More on this and other intersectional and contextual factors when I start researching and writing my next paper on this topic.

Would you like to share your experience or stories on this topic? Please comment here or email morialshah@gmail.com.

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