One of the most sensitive challenges facing the ADR professional community is the issue of diversity. As many observers have noted, the substantial majority, indeed, a super-majority of lawyers serving as arbitration and mediation practitioners are white and male, and the efforts to bring diverse neutrals into the profession have faced significant difficulties. Even where the intentions are the best, efforts to diversify the field have met with limited success to date.
In an effort to move this process forward, the ABA recently adopted Resolution 105, which states as follows:
RESOLVED, That the American Bar Association urges providers of domestic and international dispute resolution services to expand their rosters with minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities (“diverse neutrals”) and to encourage the selection of diverse neutrals; and
RESOLVED, That the American Bar Association urges all users of domestic and international legal and neutral services to select and use diverse neutrals.
This Resolution builds upon a similar resolution passed in 2016 (Resolution 113), which encourages providers of legal services and their clients to increase opportunities for diverse attorneys. It is significant to note that the recent Resolution specifically enumerates the categories of diversity covered by the resolution, and encourages the expansion of rosters as well as the selection of diverse neutrals.
The ABA Dispute Resolution Section has created a Steering Committee to help publicize Resolution 105, and to develop recommendations and strategies for its implementation. As the Committee member appointed to highlight the concerns of LGBT neutrals, I’ve been active in developing the policies and implementation plan. Our Committee recently issued a Summary & Suggested Action Steps, which can be found HERE. The Summary describes the issues that led to the Resolution, and the Action Steps provide a variety of actions that providers of mediation and arbitration, as well as consumers of dispute resolution services, can take to further these goals.
One important aspect of the implementation plan is the encouragement of open and thoughtful discussion of the issues involved in the goals of diversity. Is it primarily a mechanism to support the careers of non-white non-male non-majority neutrals, or is it also a recognition of the need to provide diverse neutrals to validate the concerns of non-majority parties to various disputes? What special insights and skills do women, non-white and LGBT mediators and arbitrators bring to the process, and how is the dispute resolution process improved by the participation of diverse neutrals? These are not simple questions to answer, and yet, until there is a clear understanding of the importance of this goal, making progress will be difficult.
The other key dimension involves the inter-related issues of the career paths that lead to a professional’s standing in the ADR community, and the role of reciprocal referrals and social networks in the promotion of various neutrals’ success in the field. If the branches of the legal profession that feed into the ADR rosters (such as commercial litigation and civil judgeships) are lacking in diversity, it’s no surprise that the mediators and arbitrators emerging from those fields will be similarly non-diverse. Further complicating the situation, there are few well-established parameters of competence or success in this field, and so there is an unusually heavy reliance on personal referrals.
What can members of The Mediation Society do? Here are some suggestions, in line with the ideas summarized in the Steering Committee’s report:
1. Encourage diverse lawyers to consider getting involved in the mediation and arbitration field, as a career choice.
2. Foster the careers of diverse neutrals whom you meet, by nominating them to join The Mediation Society and referring clients to them.
3. Encourage an open discussion of the benefits of diversifying the ADR profession, and reflect on how your own network of referrals and social acquaintances discourages the diversification of the field.
4. Encourage providers of ADR services to issue a pledge to diversify their rosters, and then be sure that this pledge is implemented, and that the diverse neutrals on their panels are promoted for hiring by potential clients.