The feminization of family law

Two generations ago there were few woman lawyers.  The early career paths of our first female Supreme Court Justices, Sandra Day O’Connor (Stanford 1952) and Ruth Bader Ginsburg (Columbia 1959), were limited by their gender.  Reading their biographies produces profound admiration for the obstacles they overcame in reaching the pinnacle of our profession.  Despite being on Stanford Law Review, O’Connor could not find work at a private law firm upon graduation and was actually offered work as a legal secretary before being obtaining a job as a deputy county attorney.  Despite being on both Harvard’s and Columbia’s Law Review, Ginsburg was turned down for a United States Supreme Court clerkship solely due to her gender.

At Harvard (where Ginsburg began law school before transferring to Columbia when her husband took a job in New York) she was one of nine females students in a class of over 500. When I went to law school a generation later (1988-91) law schools still had more male than female students but they were approaching gender equality.  However my classmates graduated into a legal profession that was still predominately male, especially among the older attorneys would were most likely to be judges, law firm partners, mentors and those with hiring authority.

Now women make up a slight majority of law school students.  While they remain a minority among lawyers, the gender gap is closing fast.  Woman now make up a third of the Justices on the United States Supreme Court and 40% of the Justices on the South Carolina Supreme Court (including our Chief Justice).  Until last year they made up half of the family court judges in the tri-county area where my practice is concentrated.

This transformation has perhaps had its greatest impact on the practice of family law.  During my career female lawyers have been over represented in relation to their actual numbers within the practice of family law, for reasons both good (women are typically more interested than men in issues regarding family) and bad (family law is often wrongly perceived of as an unimportant, unserious or disreputable practice area that the power structure–i.e. men–don’t mind woman dominating).

However women now make up a clear majority of local family law practitioners.  For a white male who grew up in the 1960’s and 70’s–a period when the cultural assumptions of white males were considered “normal” and everyone else was perceived of as “alien” or “other”–it can be disconcerting to realize how arrogant and offensive this hegemony was.   Now I’m often the one who feels alien to a legal culture in which most of my colleagues have opposing sympathies in “the battle of the sexes.”

Yet the increasing domination of women within the family law profession has been a force for good.  Nowhere is this more apparent than in the greater use of mediation as the method of resolving family law disputes.  When I began practicing family law two decades ago mediation was extremely rare, with only Cotton Harness (who was one of my mediation trainers) doing mediation in the Charleston area.  Now there are dozens of certified family court mediators in the Charleston area, family law judges require mediation before setting trial dates, and the number of cases I try has decreased substantially because many disputes resolve in mediation.

While I enjoy trials, mediation is a vastly superior method of dispute resolution, especially for disputes that involve the intimacies of family.  Trial–with its metaphors of two warriors aggressively battling for victory–is a prototypically male method of dispute resolution.  Mediation–which requires empathy and values mutual respect and relationship preservation over domination–is more “female.”  However given that most parties in family court will still have some dealings with the other party when the litigation is over, dispute resolution that values cooperation over dominance is healthier for children and less likely to lead to future modification actions.

It is not coincidence that a centuries-long history of dispute resolution through trial changed so rapidly once women entered the legal profession in significant numbers.  Family law is much more feminized than it was twenty years ago.  In serving the needs of the people who come to us for help, it’s a much better profession as a result.

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