AN HONEST ASSESSMENT
The mediation and arbitration community has long been criticized for its lack of diversity. However, this statement does not mean diverse mediators and arbitrators do not exist, but rather that those who lead the profession and those whose work is most often celebrated in professional circles are primarily white and male.
Our profession is not as diverse as the people we serve, and, as such, we do a disservice to participants and society at large. Acknowledging this reality and working to build a more diverse arbitration and mediation community is crucial to maintaining public trust in this process.
DIVERSITY OF EXPERIENCES LEADS TO DIVERSITY OF THOUGHT
While much attention has been paid to increasing diversity of thought in the ADR community, few have focused on the importance of diversity of experience as the catalyst for increasing diversity of thought. The philosophical basis for diversity of thought is that diversity of experiences leads to alternative ways to consider, analyze, and settle legal disputes.
Diversity of experience is essential to a well-functioning dispute resolution system. While there are quite a few mediators and arbitrators who offer both diverse experiences and subject matter expertise, too often these highly qualified mediators and arbitrators do not make the arbitration or mediation shortlists that are compiled based on subjective criteria including:
- Prior mediation or arbitration experience working with one or both parties;
- Recommendations from other parties they have worked with; or
- A personal relationship with one or both parties.
INTENTIONAL EFFORT – TIME TO ACT
To create a truly diverse and inclusive community, organizations must make an intentional effort to include a diversity of experiences as a criterion when creating their shortlist of mediators and arbitrators to consider for a case.
We are now living in a world where we know that diversity of thought is key to creating a better business, better outcomes, and a more inclusive society. We now know that diverse groups make better decisions and produce better results.
The time has come to act on both the knowledge and very public verbal commitments to diversity and inclusion with three intentional acts.
INTENTIONAL ACT #1
DIVERSIFY YOUR ARBITRATOR & MEDIATOR SHORTLIST
The current monolithic representation of celebrated and sought-after Neutrals is discordant with the current climate purporting to celebrate diversity. It would appear that while many organizations talk about supporting and promoting diversity, their shortlists suggest they do not in fact value diverse experiences.
Current shortlists generally do not consider the value of diversity in creating more effective alternative dispute resolution (ADR) processes and outcomes. Those creating the lists have grown comfortable with conducting business as they always have – through a network of individuals they share common experiences with. While comfortable, this method of selection fails to offer parties the best opportunity to preserve relationships, protect an organization’s image or create value for the bottom line.
Coming from different individual and group points of view allows diverse neutrals to offer alternative solutions to problems that fit no neat formula nor can be solved by a single process. The ability to view a situation through multiple perspectives is critical for success in both mediation and arbitration. It encourages flexible thinking and adaptability while spreading cooperation instead of conflict.
INTENTIONAL ACT #2
REQUEST DIVERSE NEUTRALS FROM ADR PROVIDERS
ADR providers help organizations find an appropriate, qualified and experienced mediator or arbitrator for their case.
However, organizations should specifically request their ADR provider identify subject matter experts with diverse experiences to act as arbitrators or mediators for their case. A company can also ask its ADR provider to provide access to a pool of diverse neutrals selected by the ADR provider to serve as arbitrators or mediators for the case.
Negotiating for a diverse professional background when you contract your ADR services can benefit your organization in several ways. First, you will be ensuring that the neutral has relevant qualifications and experience that add value to the case. Second, you may be able to avoid potential bias by having a neutral with diverse professional background. For example, if your organization is prosecuting a sexual harassment claim, you would want an ADR provider who has experience in employment law and civil litigation and gender relations and cultural dynamics at work. Finally, you will likely receive better value-per-dollar by contracting with an ADR provider who can hire expert neutrals with diverse backgrounds.
INTENTIONAL ACT #3
BUILD RELATIONSHIPS WITH DIVERSE NEUTRALS
When General Counsel (GC) and other dispute resolution professionals are selecting panelists to serve as neutrals, they should ensure that the pool of potential neutrals is diverse to meet the expectations of a diverse workforce and a diverse clientele.
To build relationships with diverse neutrals, GC’s can:
- Reach out directly – GC’s should reach out directly to candidates they would like to have on their list of potential neutrals. You can invite candidates to speak at your organization or by inviting them to join your organization’s bar association or other professional groups.
- Invite them to social events – For example, if you’re meeting with a diverse group of peers from another company for a training session or a networking event, invite a candidate you think might make an excellent neutral to join you for dinner after the training session or event.
- Include them in roundtables – Roundtables are an excellent way for lawyers from different practice areas and organizations, who don’t ordinarily interact, to get to know one another well enough that they are comfortable with their expertise and manner in resolving issues.
RISING TO THE CHALLENGE
In the world of alternative dispute resolution, as in many other walks of life, there is a long tradition of working with people with similar ethnic, socioeconomic, or historical backgrounds. That is what makes the process of building a more diverse arbitration and mediation community a challenge. Rising to the challenge means acknowledging significant obstacles, including racism, sexism, homophobia, transphobia, classism, ableism, and ageism that are a barrier to inclusion. However, through intentional action that makes the neutral selection processes more accessible by embracing the entire human difference continuum for all community members, we can achieve true diversity.
