Does gender play a role in negotiation ability? Family lawyers should be aware of the differences in gender and negotiation skills; learn more here.
By Gregg Herman, Family Lawyer
In the movie Marriage Story (Heyday Films, 2019), the female lawyer, Nora Fanshaw, is incredibly empathetic to her client, telling her that they will move forward with the divorce “as gently as possible.” When the husband goes to meet with his prospective male attorney, Jay Marotta, Jay immediately starts explaining an aggressive plan so that they can “win” the case. When the attorneys meet, Jay yells and tries to speak over Nora. However, she uses her social intuition to read his behavior and, instead of raising her voice and “fighting” back, remains calm and attempts to smooth over the interaction.
In the end, despite the fact that Jay was clearly the most aggressive and assertive attorney, Nora was able to use her other skills in order to reach a more favorable agreement for her client. The moral of this story is that being aggressive isn’t the only way to be a successful negotiator.
Gender and Negotiation Skills
There is a common misconception that women are not as successful negotiators as men. This misconception may stem from the stereotype that women are not as assertive as men, and assertiveness is perceived as a crucial skill for successful negotiations. Essentially, society views men as assertive and aggressive – traits that will allow them to successfully negotiate for their position – whereas women are seen as being fundamentally more cooperative.
However, in reality, being a successful negotiator has little to do with gender; instead, it is related to the skills possessed by each individual. There is no difference in effectiveness and success between men and women, but there is often a difference in how men and women reach that success and effectiveness based on their skills.
5 Tools for Successful Negotiations
Assertiveness is one of five fundamental tools that can make for successful negotiations; the other four are empathy, ethicality, flexibility, and social intuition.
- Empathy is an individual’s ability to understand the emotions of their counterpart and where they are coming from – even if there is a disagreement (Id. at 711). Empathy is crucial because it allows a negotiator to truly understand what their counterpart is thinking, allowing them to effectively strategize the best way to advocate for their client’s position. Generally, research shows that women tend to possess this skill more often than men, and women often demonstrate this skill by active listening and asking respectful questions.
- The Ethicality of a negotiator relates to their reputation – a tool used to predict how that negotiator will behave and their trustworthiness, which determines the likelihood of delivering on their promises (Id. at 937–38). Reputation plays a key role because if a negotiator has a good reputation, their counterpart is likely going to be willing to share more information, and the negotiations will tend to go more smoothly with better results for both sides (Id.). Trustworthiness also plays a crucial role in being a successful negotiator because if that individual is trustworthy, the negotiation will likely be more efficient as parties are more willing to share information (Id.). Women are presumed to be more ethical and trustworthy with higher levels of moral character and ethical standards; however, women are more likely to be lied to in a negotiation (Id. at 939).
- Flexibility in relation to outcome and process is another crucial skill. Process flexibility is the ability to shift styles or approaches when needed, and outcome flexibility is the ability to be creative and find integrative solutions. This skill is essential because that flexibility allows them to adapt to the situation and best negotiate for their position. The amount of time it takes to make a decision and the amount of information that the negotiator can gather determines the flexibility of an individual. Typically, research shows that women take longer to make decisions, which allows them to be more creative and establish more of a plan, and they are also more likely to get more opinions from others before deciding.
- Social Intuition is the ability to be self-aware while also being able to read one’s counterpart, and then using social cues to smooth over the social interaction of the negotiation (Schneider, Negotiating While Female, supra note 4, at 710). Women tend to be better at this skill than men because women are often better able to decode body language, tone, facial expression, emotions, and more – which allows them to better manage the mood and tone of the interaction (Id.). This can be done through physical touch and compliments, which are more socially acceptable for women to engage in than for men.
Lastly, most people consider assertiveness to be the most important skill in negotiation. Assertiveness is more than simply being aggressive; the skill includes the ability to prepare the substance of the negotiation and then use that information to make strong and persuasive arguments based on the negotiator’s position. This is a skill most commonly possessed by men, perhaps because men can be more confident than women in negotiations. However, there have been findings that women can be as assertive as men – depending on the context and expectations involved in the negotiating process (Craver, supra note 3).
Gender and Social Interaction
In addition to differences in negotiating skills, gender can also have an impact on the social interaction aspect of negotiations. Although men tend to be more aggressive and competitive when it comes to negotiating, they may change their behavior when negotiating with a woman. Often, men find it difficult to adopt retaliatory approaches against women, which in turn results in a bargaining advantage for women. In addition, men and women sometimes wrongly assume that women will not use as many negotiating “games” as men, providing an advantage to the man, who may be using such “games” to catch their counterpart off guard (Id.).
Be Aware of Potential Gender Differences
Both men and women can have effective negotiating skills, which are not always gender-related. There are, however, instances where gender seems to play a role in negotiating based on the skills most commonly possessed by each gender. That is not to say that one gender is better or worse at negotiating than the other; rather, women possess some skills that help them to be successful negotiators while men possess others. Each gender has ways to be successful in negotiations using a variety of skills. Although we have to be careful not to stereotype a negotiator based on gender, being aware of the differences and expectations related to each gender is both interesting and useful.
This article has been edited and excerpted from Settlement Negotiation Techniques in Family Law: A Guide to Improved Tactics and Resolution (ABA Book Publishing, 2nd Edition, 2020) by Gregg Herman, who thanks Professor Andrea Kupfer Scheider of Marquette University Law School for her assistance with this article. A Certified Specialist in family law (NBTA), Gregg is a Fellow of the AAML and Past Chair of the ABA’s Family Law Section. www.loebherman.com
 Charles B. Craver, The Impact of Gender on Negotiation Performance, 14 CARDOZO J. CONFLICT RESOL. 339.
 Andrea Schneider, Negotiating While Female, 70 S.M.U. L. REV. 695, 710–12 (2017).
 Andrea Kupfer Schneider, What’s Sex Got to Do with It: Questioning Research on Gender & Negotiation, 19 NEV. L.J. 919, 933 (2019).
 Charles B. Craver, Gender Differences in Negotiations.
Negotiating the Best Financial Settlement for Your Divorcing Clients
Having the right data is crucial – as is a holistic view of your divorcing client’s financial picture – in order to achieve an advantageous settlement. Here is what family lawyers need to know to negotiate the best financial settlement for their clients.
The Art of Persuasion & the Practice of Family Law
There are a number of fundamental principles to the art of persuasion; here are six of the most effective ones for family lawyers to learn.