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Leveling the Playing Field

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Leveling the Playing Field

National attention has addressed the pay gap for women. Beyond that, there is an information gap, a power and understanding gap, and common perceptions of femininity that have resulted in institutional disadvantages for female attorneys, especially litigators. This program exposes nationwide statistics regarding the wage gap between female and male attorneys and pays special focus to recent academic and bar association studies addressing gender differences in the profession. The course also addresses practical ways to overcome this gender gap, including negotiation strategies and skills to foster leadership and opportunities for professional development. The goal of this program is not just to raise awareness of the issue but to also offer its participants the opportunity to solve the problem.

Presenters

Florina Altshiler
Litigation Partner
Russo & Gould LLP

Transcript

Florina Altshiler:  Leveling the playing field. Hello, my name is Florina Altshiler and I am a litigation attorney with the law firm of Russo and Gould. Today, I'll be talking to you about ways in which we can level the playing field to create more inclusive environments across litigation fields. Our learning objectives include the development of a toolbox of negotiation tools, a toolbox for use in interviewing, salary negotiations, managing office relationships, receiving credit for the work that you do, engaging in mediations, your interactions with judges and other court officials, legal and ethical considerations, knowing what to expect, and strategizing accordingly when negotiating with opposing counsel as well as for yourself as well as a potential employer.

   So I'm going to start by talking about RBG, Ruth Bader Ginsburg, one of my all time heroes. She said, "When I'm sometimes asked when will there be enough women on the Supreme Court? And I say, 'When there are nine.' People are shocked. But there have been nine men, and nobody's ever raised a question about that." This was during an interview with the 10th Circuit Bench & Bar Conference at the University of Colorado in Boulder, via CBS News. And it's very true.

   We have these preconceived notions about where gender norms place us, where racial norms place us, and at the suggestion of altering those norms there's shock, but really should there be? Of course, I believe not. Certainly, it's time to alter what those preconceived notions are and attempt to level that playing field to reach equality.

   RBG also said. "You can't have it all, all at once. Who-man or woman-has it all, all at once? Over my lifespan I think I have had it all. But in different periods of time, things were rough. And if you have a caring life partner, you help the other person when that person needs it." This was in an interview with Katie Couric that she did. And that's very true, right? Everybody needs to have supportive, not just partners, but law partners, law associates, support staff, management. When our work community, as well as personal community, supports the professional goals that we are pursuing, it's a lot easier to be able to have it all, all at once. But certainly without that external support, it would be impossible.

   Now, the last quote that I have from RBG is, "Women will have achieved true equality when men share with them the responsibility of bringing up the next generation." This is a quote via The Record. And of course, this is what I was talking about when I was saying we need support from partners and in our personal lives, because, especially with the pandemic, where everyone became essentially a stay-at-home parent. Without childcare, without the infrastructure in place to allow people to go to work and actually work. It is impossible to have it all, all at once, because it's impossible to be able to work full-time while also, at the same time, raising children full-time. And, traditionally, childrearing happens to fall upon a majority of the female gender versus the male gender. Equality, of course, in a truly level playing field, would be a gender neutral approach to childrearing.

   Now, aside from those issues, there certainly are many, many more issues that affect, not just gender inequality, but racial inequality. And that begins with an information gap. So most successful employees, attorneys, professionals will leverage information that they obtain through traditional networks like the golf course, for example, fraternities, tennis clubs, country clubs, neighborhood associations, organization that they belong to, in order to get ahead. Whether it's getting ahead in the case management of their cases, getting ahead professionally, getting ahead by leveraging positions. Whether it's new career opportunities, moving up within a firm, moving up to a different firm, bringing business into the firm, all of that happens through social network opportunities.

   And historically places like golf courses were traditionally male-oriented, white male-oriented organizations, traditionally, country clubs were white male-oriented organizations. Many clubs historically would purposely exclude women. And certainly many clubs historically were very much so not race neutral. Those of course created information gaps between the groups. And so put one group at a disadvantage versus the other, in exchanging information, building relationships, and then leveraging those relationships for new business opportunities.

   And, of course, to be successful as an attorney, there needs to be business opportunity and business growth. The partners who are very successful, financially, are the ones who bring in business. The only other way for attorneys to truly get ahead of the law firm is if they are truly exceptional, either appellate attorneys, who write outstanding appeals, or trial attorneys who take a significant amount of cases to verdict and have good results at trial before a jury.

   But neither of those are opportunities where one may really be all that exceptional and not easily replaceable. Because for every trial attorney, there are thousands of other trial attorneys. Just think about how many people come out of the DA's office with trial experience and go into private firms.

   So the information gap is what really puts females, black attorneys, other minorities at a disadvantage from developing business opportunities and growing within a firm to have a book of business, and to leverage that book of business for better pay and better opportunities.

   Now, in addition to the information gap, there is also a power and understanding gap. A sole female attorney, or a sole minority attorney that is negotiating against a panel of older white male partners, is going to be problematic because there's a dearth of women in executive management at many law firms. There's a dearth of minorities at executive management positions across law firms. And so you have a lack of understanding of the position of that solo attorney, that's in the position to have to negotiate.

   Other issues are perceptions of femininity. Failing to be aggressive, as one's instinct may suggest, for fear of being perceived negatively, is a common issue amongst female litigators. And it puts them at a disadvantage. Now, men who are aggressive tend to be praised. They appear to be zealous advocates. They appear to be fighting for their client. When a woman does the same thing, they're called all sorts of unattractive names and are perceived negatively as a result. And this is a perception issue, of course. The best way to address this is to address the perception and to question why the perception exists.

   Now, if we look at statistics, in terms of institutional barriers that women face. Women in the legal profession actually make up 36% of the legal profession, with of course, men making up 64%. Female lawyer's weekly salaries as a percentage of male salaries are just that a percentage. They are not on par with male salaries. Now, if we look at statistics comparing female salaries to male salaries, same year, same level, same type of firms, so we're not comparing apples to oranges here, in 2005, female attorneys, weekly salaries were at 77.5% of that of their male counterparts. It has gone up since then, but it's gone up and down. If we look at 2006, it went down. Female attorney salaries were only 70.5, not 75, seven zero point five percent of male attorney salaries.

   At it's peak, in 2015, female attorney salaries reached 89.7%. So they're still losing just over 10% in weekly salaries compared to male attorneys. Now, if we look at that in terms of dollars, what does that translate to? Well in 2015, when they were as close to on par, as they've ever been, that meant that every single week a female attorney doing the exact same thing, in the same similarly situated position as the male counterpart, was making $197, on average, less per week. Of course, that does add up over time. In 2006, when that gap was greater, that translated to a female attorney making $558 less per week for doing the same exact thing.

   Now, if we look at some other statistics, the American Bar Association has, certainly, female members, and the female members make up 34.6% of the Bar Association membership. The Board of Governors does have 43.2% females on it. Their section and division chairs are at 42.9%. The presidential appointments are almost, they're actually better than equal, they're at 51%. And committee chair appointments are 39.8%.

   Now, why is it that it's not completely equal? Why isn't the playing field equal? Well, part of the issue is that women sometimes ask for less. What does that mean? The average college educate woman earns $713,000 less over the course of her working life than her male counterpart. Now, we're not talking about attorneys, we're talking about college educated professionals. So across the professions, women are earning $713,000 less across their lifespan.

   So why does this happen? Well, female employee's awareness that they could be penalized for negotiating assertively at their own behalf is one factor. There's a fear of backlash. In a study where male and female students were engaged in a simulated negotiation, before that negotiation, women, but not men, reported believing that they might be punished if they were perceived as being too pushy or demanding.

   So interestingly, men had no problem advocating for themselves and being pushy, and they were not perceived as being pushy. Women on the other hand hesitated, and did not take an aggressive approach in negotiating on their own behalf, because they did not want to be perceived negatively. This fear was unique to women negotiating their own salaries, as opposed to those negotiating salaries for a friend. So women were comfortable taking an aggressive position on behalf of a friend, likewise, on behalf of a client, but they were not comfortable doing so if it was for themselves. The old asking for a friend default, right?

   We're a lot more comfortable saying, "I'm asking on someone's behalf," than standing up for ourselves and asking on our own behalf. Men on the other hand did not have that hesitation. And so part of the reason why the male gender is able to make over $700,000 more in similarly situated positions across their lifespan, is because they simply ask for more. And if you don't ask, you're not going to get it.

   Now, the fear of backlash that many women face is warranted. There's another negotiation study that suggested that the fear held by women negotiating their own salaries is actually warranted. In that study, women and men alike penalized the female job candidates who initiated salary negotiations. Men on the other hand were not penalized for doing so.

   So how do we fend off the backlash? Well, part one, means we should connect to others. In order to close the gender gap and avoid a backlash when negotiating on their own behalf, women should try to link those aggressive demands to the needs of others, such as that of the organization. What does that mean? Well, for example, saying, "I need a faster printer," is asking for something on your own behalf, putting yourself. Phrasing that same demand differently, prioritizing the needs of the organization, could get the same result quicker and in a way without backlash.

   So how do we phrase that differently? Well, instead of saying, "I need a faster printer." We could phrase it to say, "Wouldn't it be better if our organization had a faster printer? That would really prioritize employees time and allow us to more effectively manage our time by spending less time at the printer." Essentially we're saying, "I need a faster printer," but we're phrasing it in how it would benefit the organization versus how it would benefit me. And almost any demand, that is one that would benefit the individual, can be couched in a way where it would benefit the organization.

   Requests made on others' behalf are always likely to be better received. So connecting with others in a way that fends off backlash for negotiating on your own, always helps achieve the same end result, but in a non-aggressive way. In fact, the listener may think that you are thinking of the organization's needs ahead of your own, and that you're really trying to help the company by thinking of the needs of that organization.

   Another way to fend off backlash is to stay vigilant. Both men and women need to audit their judgments for the subconscious tendency to view assertive women negotiators as unlikable and overly demanding. Using objective measures is very helpful. When making requests, women should reference relevant standards that would be difficult for the other side to ignore.

   What does that mean? Well, think about settlement negotiations, right? If we take the position that a case is worth $700,000, what is that based on? Well, we're going to look to relevant standards that are going to be difficult for the other side to oppose. In settlement negotiations, we'll do jury verdict search, we'll look for settlements that have been reported, we will make sure that the same type of body part was injured in a similar way, and we're going to see what the verdict value was in that type of case. And we're going to argue that it's analogous to our case. And we're going to then argue that based on that relevant standard, the same result should exist here.

   If we look at legal research and appellate briefs, we're essentially, picking facts from prior cases that are similar to our facts. And we're arguing that our case is just like those other cases, and therefore the same results should be reached. That's no different than in personal situations, right? We're going to reference those relevant standards to attempt to reach the result that we want, and making it difficult for the other side to ignore. We're not looking to appeal emotionally. We're not looking for sympathy. We're not saying things like, "I want $700,000 for my client." Nobody cares what you want. What we're saying is, "Look, in the case of Smith, there was verdict of $800,000, and it's the same body part that was injured in the same manner. In the case of Jones, there was a $750,000 verdict, same body part, same jury, same venue."

   We're not going to compare apples and oranges, we'll lose our credibility and our argument will be discredited. So what we do is we make a factually relevant argument by applying an objective measure and saying, "This should be the result because of these similar situations." It's going to be very difficult for the other side to then ignore what sounds like a very reasonable request.

   Now, organizations should attempt to control the effects of gender stereotypes by instating salary benchmarks based on objective, gender neutral, and race neutral performance measures. So similarly to looking at settlement values and what verdicts have come before, to come to the conclusion of what a case is worth, salaries can be tiered based on clear objective performance markers: years of experience, number of verdicts, dollar amount of receivables generated, number of hours billed. Whatever objective measures may exist that are neutral to race and neutral to gender, will be object performance measures that should result in salary benchmarks versus Jenny getting a raise of X dollars and John getting a raise of Y dollars, simply because we felt like it.

   Even if we're not consciously thinking that there's a gender divide there, there may well be a subconscious gender divide. And when you eliminate that, by having clearly objective standards, it's going to eliminate any race bias and any gender bias.

   Now, another issue is one of leadership. And the question is, how do minorities have an opportunity to become leaders? Well, people become leaders by internalizing a leadership identity and developing a sense of purpose. Internalizing a sense of one's self as a leader is, of course, a process. A person asserts leadership by taking purposeful action. So for example, convening a meeting to revive a dormant project, taking the initiative to change something that's problematic within an organization, seeing a problem and offering a solution to that problem is an example of taking ownership in a project, and taking a leadership position to that project become a reality.

   A person is going to assert leadership by taking purposeful action for whatever end goal they may have. A person's leadership capabilities are going to grow and opportunities to demonstrate them will likewise expand as they take on these leadership roles. High profile, challenging assignments, and other organizational endorsements are going to become more likely as people are viewed as leaders. And the way they're going to be viewed as leaders, is by taking initiative in different projects.

   So what does that mean? That could be as simple as organizing a softball team for your firm, initiating the replacement of an old copy machine, that results in people losing constant time restarting it, finding a problem that's organizational and finding a solution to that problem. The problem may be a lack of employee morale and organizing happy hours for the employees to get together. Or the problem could be as big as millions of dollars of lost revenue due to either billing errors or use of third party vendors that can be eliminated or whatever the identified issue is.

   Of course, the larger the issue that's identified, the bigger and more important the results. That being said, and you can start with small projects and work your way up to, of course, bigger projects. Affirmation is going to give the person the fortitude to step outside of their comfort zone and experiment with unfamiliar behaviors and new ways to exercise leadership. And, of course, as more challenging assignments come their way, and as they do better, they're going to grow and grow as a leader. Of course, it's going to take some initiative and drive by that person to first set out to gain those leadership opportunities.

   How do we support minorities access to leadership? Well, first, we should educate both genders about second-generation gender bias. We should educate races about racial discrimination. We should create safe workspaces to support transitions to bigger roles for minorities and for women. We should anchor women's development efforts in a sense of leadership purpose rather than in how women are perceived.

   The actions will give women insight into themselves and their organizations enabling them to more effectively chart a course to leadership. Pay and benefits may attract women and minorities, but it's a lot more important, not just to attract women and minorities, but to have women and minorities stay in those organizations. And the best way to have employees stay, is not just pay and benefits, but the flexibility of a work/life balance.

   Employers who will allow employees to have flexible hours to address childcare needs, to address family needs, to be able to work from home when necessary, to be able to work in the evening, not just 9:00 to 5:00, will create an environment that is more conducive to nontraditional employees, to be able to stay and work, and work full-time, and produce results for the company.

   So if a parent is the main parent, which unfortunately in our society still heavily falls on women, they may have childcare issues during the day. That does not mean that they're not able to meet the billable requirements of 2000 hours annually, but they may put those hours in from 10:00 PM to 4:00 AM. And the smart employer who recognizes that, will allow those women to put those hours in on their own time, rather than penalizing them for not putting in face time during the 9:00 to 5:00 hours that traditional employers want to see their employees in the office.

   You also want to focus on succession planning. So a law firm that wants to survive and be profitable and be around for the next 100 years, needs to think about what's going to happen 10 years from now, 20 years from now, 50 years from now. Who is in the associate class that's likely to take on leadership roles, and take over this firm in 10, 15, 20, 30 years? And so those are the people that the firm wants to attract and keep.

   The single most powerful thing that an organization can do to promote more minority leaders, is to create a culture of conscious inclusion. So not just saying that the firm is inclusive, but consciously creating opportunities for women and minorities to take on substantively challenging work, and succeed with that substantively challenging work. Don't just plant somebody as third chair on a trial to carry the binders to the courthouse, actually allow that attorney to participate in the trial, by questioning witnesses, by helping prepare witnesses, by preparing cross-examinations of experts, by working with senior partners together in a substantive way, so that they are meaningfully engaged in the trial.

   Don't just have an attorney prepare a memo of legal research for a brief, and then have the partner copy and paste that into the brief that's submitted in that partner's name for the partner to then argue it. Have these so a that did the legal research participate in oral argument. Put that associate's name on the brief, if they substantively drafted a good portion of that brief. Consciously include the younger attorneys who are doing substantive work in that substantive work.

   That is a very powerful way for an organization to promote female and minority leaders into the future. If, of course, the only opportunities that are given to females and minorities are non-substantive, of non-leadership opportunities, then five and 10 years from now, you're going to turn around and you're going to say, "Oh, well, that person didn't really do anything that's creditworthy." Of course not, those opportunities were given to their white male counterparts. And so the white male counterparts, of course, were able to succeed.

   So shifting the mindset of organizational leadership to conscious inclusion, and purposefully creating opportunities for those who maybe previously were not afforded those opportunities, will help with the overall success and succession planning of the organization.

   Educating everyone about bias is also particularly important. More than 25 years ago, the social psychologist, Faye Crosby stumbled on a surprising phenomenon. Most women are unaware of having personally been victims of gender discrimination, and they deny it even when it is objectively true and they see that women in general experience it. This is called second-generation bias. It does not require an intent to exclude nor does it necessarily produce a direct or immediate harm to any individual. Rather, what it does is creates a context, akin into something in the water, in which women fail to thrive or reach their full potential.

   Understanding second-generation bias is key. Without an understanding of second-generation bias, people are left with stereotypes to explain why women as a group have failed to achieve parity with men. If they can't reach the top, it must be because they don't ask or are too nice or simply opt out. Those are great examples of second-generation bias. The message tells women that those women who have managed to succeed are actually the exceptions. Women who have experienced setbacks are told that it's their own fault for failing to be sufficiently aggressive or committed to the job. And so this continues to now prevent future women from succeeding.

   The same is true with racial discrimination and race bias. With this expectation that those who don't succeed simply don't try hard enough, don't ask, or opt out. Recognizing the biases are a first step towards eliminating those biases. So when women recognize the subtle and pervasive effects of second-generation bias, they do feel empowered, not victimized, because they can take action to counter those effects. They can put themselves forward for leadership roles, when they are qualified, but have been overlooked. They can negotiate for work arrangement that fit both their lives and their organization's performance requirements.

   Now, the next question is, is work done by women valued? New research suggests that work done by women simply is not valued as highly as similar work when done by men. So another study shows, that women enter fields in great numbers, the pay for that field actually declines, for the very same jobs that more men were doing before. So when women moved into occupations in large numbers, those jobs began paying less, even after controlling for things like education, work experience, skills, race, and geography.

   So what is the value? Well, there's substantial evidence that employers placed a lower value on work when done by women. It's not that women are always picking lesser things in terms of skill and importance, it's just that the employers are deciding to pay it less financial value. So, yes, women sometimes voluntarily choose lower paying occupations, because they're drawn to work that just so happens to pay less, like caregiving or nonprofit jobs. Or because they want less demanding jobs, because they have more family responsibilities outside of work.

   Pure discrimination may account for 38% of the gender gap. And what's interesting is the job itself does not matter. Women and men are paid differently, not just when they do different jobs, but when they do the same work. In the April 2017 issue of The Atlantic, Liza Mundy published an article called, Why is Silicone Valley so Awful to Women? I highly recommend reading the article, and it highlights the pay disparity between the genders for the same work, in the same field.

   Now, there's institution disadvantages that women face. There's the fear of being perceived as overly aggressive or bitchy. There's negative impressions of women who speak up too much. There's negative impressions towards women who appear overly prepared. There's not being welcomed in traditional male environments, where connections are made and information's exchanged. Being mommy-tracked or battling an assumption that a female attorney will be less valuable because she will be taking maternity leave, whether or not she has even expressed the desire to take maternity leave. Lack of support for attorneys of both genders with young children or family obligations. Creating a perception that female attorneys are less focused on their careers, and therefore, should be dependent upon less because they're going to be taking time off for childcare, regardless of whether or not they've expressed the desire to do so.

   A lack of female mentors and advocates and senior leadership is a problem. There's an article, also, in The Atlantic, in the September 2018 issue by Lara Bazelon, B-A-Z-E-L-O-N, titled, What it Takes to be a Trial Lawyer, if You're Not a Man. In more than a decade of arguing cases in court, she describes the stubborn cultural biases that female attorneys must navigate to simply do their jobs. She talked about one judge who scolded her saying, "Don't do it again," struck her on the back of her hand, hard enough to leave a mark. She talked about filing a motion seeking to preclude emotional displays during a trial, by opposing counsel against her. There's a social science research article referenced within her article that has demonstrated that, when female attorneys show emotions like indignation, impatience, or anger jurors may see them as shrill, irrational, and unpleasant. Interestingly, those same emotions, when expressed by men, are interpreted as appropriate to the circumstances of a case.

   The New York State Bar Association in a 2017 report titled, If Not Now, When, referenced several concerning examples of gender-based issues. Female attorneys account for just 25% of all attorneys appearing in commercial and criminal cases in courtrooms across the state of New York. The more complex the civil litigation, the less likely a woman is to appear as lead counsel, with the percentage shrinking from 31.6% in one-party cases to less than 20% in civil cases involving five or more parties. The conclusion that the New York State Bar Association drew was that the low percentage of women attorneys appearing in a speaking role in courts was found at every level, and in every type of court, upstate and downstate, federal and state, trial and appellate, criminal and civil, ex parte applications and multi-part matters.

   The American bar Association Commission on Women in the Profession, in a 2006 report titled, Visible Invisibility, noted some very disturbing statistics. Nearly two thirds of women of color said that they had been shut out of networking opportunities. And of course, if you can't network, you can't bring in business. And if you can't bring in business, you can't move up in a firm. 44% said that they had been passed over for plum work assignments. 43% said that they had little opportunity to develop client relationships. And, again, at the end, the question is, are you going to be a leader? What have you done to demonstrate that you are a leader? Well, how can you do any of that, if you have no opportunity to develop client relationships, you don't get the substantive work assignments, and you're shut out of networking opportunities?

   Many attorneys who responded to the Visible Invisibility report described female attorneys as feeling lonely, perpetually on edge, anxious to avoid race and gender-based stereotypes. One respondent said that she was "treated like an exotic animal trotted out for photo opportunities at diversity and recruitment events, but otherwise sidelined." An Asian American woman recounted being asked to translate a document written in Korean, and having to explain that she was in fact, Chinese.

   The Unfinished Agenda: Women and the Legal Profession, written by Deborah L Rhode, highlights the problems that are compounded by the lack of conscious and the lack of consensus that there are, in fact, serious problems. Only about 25% of female lawyers and three percent, just three percent, of male lawyers believed that prospects for advancement were greater for men than for women. So 97% of male lawyers do not believe that there's any gender issue for prospects for advancement. Think about that for a minute.

   Most attorneys equate gender bias with intentional discrimination, and the contexts in which they practice, produce few overt examples. Yet a wider of research finds that women's opportunities are limited by factors other than conscious prejudice.

   Now, what are those major barriers, if not conscious prejudice? Well, one unconscious stereotypes, another, inadequate access to support networks, another's, inflexible workspace structures, so the inability to be able to afford or manage childcare as the same to time as employment, inflexible work structures, sexual harassment, and of course bias in the justice system.

   So what's the lesson? Well, the lesson from these examples and the focus of the remainder of this presentation is not that we men are bad negotiators or that they need to change their personalities in order to avoid being perceived negatively when negotiating, but rather that there are institutional disadvantages that women and minorities face when they are negotiating with potential employers, negotiating with opposing council, negotiating with the bench. Women should be given tools for navigating and effectively managing these institutional barriers to achieve maximum success.

   So what are the negotiation tools? Well, let's go through the steps in a negotiation. Step one is assessing the situation. Is this a situation where I can influence the outcome? If yes, let's go ahead, and try if no, well, I guess we're stuck with the situation, right? If we can't change the outcome, why are we even involved? So step one is to assess. Step two, assuming that we can somehow influence the outcome, let's plan. How might I influence it? What is it that I want to achieve? What is important to them, to the other side? Why are they making this decision or creating this problem?

   Next we're going to ask. Here is what I need to help solve this problem that makes me better off, and at least keeps my counterparty whole. Next, we're going to package the proposal. So take the information you have and counterparty has to find a better solution. No one's going to have perfect information, but do that with a communal view. Think about what's going to benefit all of us versus what's going to benefit just me. Phrase the proposal as a way that's going to benefit both sides. Don't be afraid of asking.

   So what is a communal view? Well, the male gender can easily talk about their competencies. Women address their competencies with a communal concern. So the theme is, what can I do for company X? And what can I do to help solve the problems that that company has? This kind of communal orientation is not about yourself, it's about what I can do for you. It mitigates the negative reputational effects.

   How do we negotiate an offer? Package, package, package. So if you go issue by issue, you make an adversarial. And part of the frame you want to bring is, here are the recourses that I need to be effective. Prepare, use your network to get insight. You're as good as your other options. The more options you have, the more in demand you're going to be. It's like dating. The more competition there is for your attention, the more valuable people think you are.

   So if you think back to applying to law school, the minute one school gives you a full scholarship and you let the other school know, now the other schools are willing to give you full scholarships. If no one's interested in giving you a full scholarship, you have nothing to leverage or wage against the other. Same thing with salaries, same thing with jobs. Once you have one offer and you go to another employer, you're going to have multiple.

   Some common mistakes are a lack of preparation. So oftentimes even when women say, "I should negotiate," they don't do a good job preparing by knowing how much more they want, and more importantly, why? They don't know how to tell their counterparty, persuasively, why they should get exactly what it is that they want. You need to do research and be prepared with facts that are objective. So if you want to be paid $145,000 a year, because you're seven years out of law school and took 15 verdicts before a jury, that's what you say. Not, "I want to be paid $145,000, because that's what I need to pay my mortgage." Very different explanation. So come up with actual concrete facts in terms of accomplishments, that warrant, whatever it is that you're asking for. If you're able to make comparisons based on what you know other similarly situated individuals are making, then you're able to make those like arguments as you would in a motion.

   Low expectations are another issue. Women have systematically lower expectations, resulting, of course, in systematically lower outcomes, because expectations drive behaviors: negotiate strategically, not instinctively, prepare, write down your goals, brainstorm to expand your strategic thinking, keep track of your lessons learned, be disciplined and do this every single time. Be formulaic in your approach, so that you can achieve results.

   You want to protect and preserve your reputation. You are already developing a reputation with your coworkers and your superiors. It matters. Be kind, be sincere, be credible, be trustworthy, giving, be a decent human being. People will remember that. This is going to benefit you many times over in negotiations in life. A reputation for the opposite is going to make life and negotiations far more difficult. Because once you have a reputation of not being trustworthy, no one will want to negotiate with you.

   Rely on facts that are objective and true, and represent those facts accurately, so that you have a reputation of being credible. Relationships matter. The importance of good relationships is going to change who people deal with and how they deal with each other, when they negotiate. It moderates extreme value claiming behavior.

   Why? Because future transactions of real value are anticipated. Being too greedy today is going to risk losing those valuable transactions. Reciprocity by the other side is expected. You give a little in this transaction and the expectation that the other party will help you later. A good relationship engenders trust. Trust reducing the cost of monitoring compliance and nitpicking adherence to the terms of an agreement.

   Information is power, so go get it. Be prepared. Get your hands on all the information you can. The biggest mistake that people make in negotiations is to consider the negotiation a forum in which to argue and persuade. I offer that you should take the opposite approach, ask questions and listen to your counterparts. Use the negotiation as an opportunity to learn as much information as possible. We have two ears and one mouth so we can listen twice as much as we can speak. Of course, lawyers have a very hard time with this, since they all love to hear themselves speak. And I say this as I'm in the middle of a one hour monologue here. So listening is going to get you in information, and the information is power.

   Explore interests underlying positions, and find out why. The primary principle of interest-based negotiations is to emerge or get a good understanding of your and the other parties interests, and to develop or invent creative options that will meet those interests. Interests include the motivations, emotions, drivers, or hidden agendas behind someone's position. Someone's going to be asking for money, but their end goal may in fact be an apology. Maybe they want restitution. Maybe they want to be placed back in the position that they lost. Maybe they want specific performance. You have to understand what their motivation, emotion, or driver is to be able to reach a solution that going to be one that they want.

   And that solution is not necessarily always just dollar bills. This approach increases the change of establishing a good relationship with the other party, and achieving an outcome that may be mutually beneficial. Maximize your leverage, develop a better plan B. So what will happen if you don't negotiate an agreement? What is your plan B? The better the plan B, the stronger your leverage, right? If you're not all in on plan A and you have a good plan B, then you're going to be able to more easily walk away from plan A, and there's your leverage.

   You always want to employ fair, objective standards. So what is the market value of a product? What is the precedence that's been established in the workplace? What reciprocity, scientific judgment, or engineering judgments exist? Is there a professional judgment? What is the efficiency of a product or service? Is there a tradition that has been established? Are there verdicts that will establish value? What is your competition doing? What is the replacement cost of a product or service? What would a court decide in similar fact patterns? What are the moral standards or equal treatment? Those are questions that you should have answered in order to have the facts to support your objective standards, even before beginning the negotiation.

   You also want to consider psychology when making your moves. So the parties should get, and feel like they got, something in almost all negotiations. Help both parties walk away feeling good. How? Design and offer concession strategy that's going to include room for you to move, when it's customary to make a move. Your agreements will also then be more secure. Parties that screwed over often will find a way to undermine or get out of the deal, and that's a lose-lose situation.

   You want to control the agenda. Don't discount the true power of the in-person meeting. It's a lot harder to say no in person than any other way. Strategically consider, how, when, where, whether, and what to discuss, and how long to meet for purposes of negotiations. Most importantly, don't give up. One of the most undervalued negotiation skills is perseverance. Stick to your guns and don't give up on achieving your goals, even if it appears highly unlikely. Many deals close due solely to the party's willingness to keep working at it.

   Understand your value, and don't be afraid to discuss it. Negotiation is where the rubber meets the road. Be prepared to implement warrior like confidence and communication skills. Tap into your executive presence. Command the room. Flexibility is useful, but don't be afraid to name your price, state your terms, and stand your ground.

   Now, there are some ethical considerations that you should be aware of. In terms of employment applications, can the employer demonstrate a job related necessity for asking the question? The EEOC is going to examine the intent behind the questions asked for purposes of interviews, as well as how the information is used to determine whether or not any discrimination has occurred. So employers should ask applicants only job-related questions. Before asking the question, the interviewer should determine whether this information is necessary to judge the applicant's qualifications, level of skills, and overall competence for the position.

   In terms of employment hiring discrimination, their state, and federal equal opportunity laws that are going to prohibit pre-employment inquiries that disproportionately screen out members based on protected status, unless some business purpose justifies the questions. The EEOC and state agencies take the position that the information obtained through preemployment inquiries should be aimed solely at determining qualifications out regard to criteria based on irrelevant, non job-related factors like gender or race. Selection decisions should be well supported, and based on a person's qualifications for the position.

   Agencies have viewed inquiries that reveal information bearing no relationship it to the job qualifications. For example, year of graduation from high school, childcare arrangements, country of origin, as evidence of an employee's discriminatory intent. So employers, if you're listening, don't do it. Don't ask those questions during an interview screening.

   During a pre-screening phone interview, you could have one that lasts 20 to 30 minutes, include questions designed to eliminate candidates who are not eligible for consideration. Examples of these questions can include, is the salary range for this position within your acceptable range? Why are you searching for a new position? What are the top three duties in the job you now have, or in your most recent job? What is your highest earned degree? What do you see as your strongest skills? And what are your key challenges? Within a relatively short period of time, for a minimal investment, employers decide to schedule a face-to-face meeting or determine that they have no further interest in the candidate. Notice how these questions are specific to the job that the candidate would be doing, and are not based on any sort of discriminatory intent.

   Use of social media is of course growing. Online technology is increasingly bringing one's private information to the public sphere. So if you type a person's name into an online search engine, such as Google, you may pull up a video from YouTube, a profile on Facebook, photos, all sorts of pieces of information that are basically a person's social resume. Do they belong to professional organizations? What type of volunteer activities is this potential employee involved in? What type of other organizations do they align themselves in? Will they represent the organization well in the community?

   Depending on the privacy settings, hiring managers may be able to view pictures of the job candidates and information about their education, politics, work experience, geographic location, hobbies, interest, people that they're friends with, but be careful, there are pitfalls to social media. Key reasons that many employers give for not using social networking include, concerns about the accuracy of the information gained, invasion of privacy of the applicant, and creating an inadvertent issue of job discrimination. Because now you may potentially have been exposed to a lot of information, that's not specific to their job qualifications.

   Criminal records are also something to consider. Courts are increasingly challenging employers use of criminal background checks. The EEOC has stated that, "An absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful." Yet, the agency has observed that Title VII does not wholly bar the use of criminal records in employment decisions. Instead, the EEOC has provided a framework for assessing criminal records, when making an employment decision. An employer's consideration of criminal records may pass muster under Title VII, if an individualized assessment is made, taking into account: the nature and gravity of the offense or offenses, the time that has passed since the conviction or completion of sentence, and the nature of the job that's either held or sought.

   For further reading, I have some books and articles cited. Who will Lead and Who will Follow? A Social Process of Leadership Identity Construction in Organizations, also, Women and Leadership: Defining the Challenges, as well as Impossible Selves: Image Strategies and Identity Threat in Professional Women's Career Transitions. And I also recommend Negotiating in the Shadows of Organizations: Gender Negotiation and Change. And of course, if anyone has any questions or would like to reach out to me, my contact information is posted. And I thank you all for joining me.

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On demand
1h 4m 43s

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