Page 6 - Alternative Dispute Resolution

S6 | MONDAY, MARCH 20, 2017 | Alternative Dispute Resolution
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Making Diversity Happen in ADR: No More Lip Service
“The mere presence of diversity in a group ... leads to better group problem solving.”2
The Problem
And how bad is the diversity problem in ADR? Well, let’s look at the overall legal pro- fession first. Despite a healthy “pipeline” at entry, in the law schools where enrollment is basically equal in terms of men compared to women, at some point the “pipe” seems to clog. Women account for roughly 36 percent of the profession, 27 percent of judges, 25 percent of Fortune 500 general counsel and only 18 percent of equity law firm partners.3 As figures stated later in this article will show, the numbers in ADR are even worse.
In 2016, minorities comprised 8 percent of law firm partners in the country’s major firms. Only about 4 percent of all associates and not even 2 percent of partners were Afri- can American.4
Could the situation in ADR be worse? The sad answer is yes.
A 2014 snapshot survey by the ABA Dis- pute Resolution Section showed that the more high-stakes the case, the lower the odds that a woman would be involved. For cases with $1 million to $9,999,999 at issue, 82 percent of the neutrals (and 89 percent of arbitrators) were men. Male neutrals handled 93 percent of intellectual property disputes, 91 percent of insurance disputes, 82 percent of corporate and commercial disputes and 79 percent of class actions.5
As reported by a recent Law.com6 article, in terms of minority numbers, “Statistics are hard to come by.” However, by its own analy- sis of the more than 350 neutrals affiliated with JAMS, Law.com found 25 percent were women and 7 percent minorities.
As of late 2016, of CPR’s 550 neutrals world- wide, roughly 15 percent were women and 14 percent were diverse. Out of the 20 individuals who were selected for three or more media- tions or arbitrations between 2010 and 2016, 12 in that group were white men, five were women, two were Hispanic men and one was an African American man. (Note: This data only encompassed instances in which CPR was approached by parties to help make a selection.) In addition, CPR saw an 81 per- cent increase in the selection of women and diverse neutrals in FY16, with women and minorities accounting for 26 percent of selec- tions. Not good enough.
As for those who would insist they rely solely on “experience” and “reputation” when selecting neutrals, as former CPR SVP F. Peter Phillips once put it: “For every established and influential lawyer who advocates for diversity there is another established and influential lawyer who voices concern about maintaining ‘quality’ if ethnicity or gender is a criterion for hiring ADR neutrals. That con- cern may arise from ignorance, or prejudice, or experience, or all three—but the question is still embedded in the ethos of the business legal community.”7
Some Progress, But Work Remains
Many of the ADR organizations have been trying to tackle this problem. In 2006, CPR convened the National Task Force on Diver- sity in ADR aimed at improv- » Page S11
BY NOAH HANFT
T he “D” in ADR stands for “dispute”... but that’s not enough. It needs also to stand for “diversity,” and right now we are far
from that. As the CEO of the CPR Institute, I lead an organization comprising corpora- tions, law firms, mediators and arbitrators. The call for diversity comes up all the time. Many took it up with a passion long before I became active in the ADR world. So what holds us back?
WhenIwasaGC,Iandmanyofmycol-
NOAH HANFT, the CEO and president of the Interna- tional Institute for Conflict Prevention & Resolution, can be reached at [email protected].
leagues in companies across the country pressed law firms to focus on hiring and retaining diverse attorneys. I can’t say the law firm community hit it out of the park, but the combined force of all our supplier diversity programs made a difference. We knew the pressure and encouragement had to come from us and that the responsibility rested with the law firms.
One of the impediments we face in ADR is that each stakeholder is not clear as to what his or her role is, and that makes it quite easy to point the finger at others. We hear explana- tions like, “Law firms are afraid to displease their clients by not staying with proven and experienced neutrals,” “ADR organizations don’t have qualified neutrals on their panels” and “In-house counsel defer to law firms in the selection process.”
So I’d like to lay out what I think are the complementary obligations of all stakehold- ers to truly drive diversity in ADR. But first, a word on why I think it is so important. What would a diverse panel of arbitrators bring to evaluating a case and rendering an award?
The Promise
A highly-regarded study suggests that diversity can lead to better decisions, despite the potential difficulty of interrupting homo- geneity. Specifically, the results demonstrated “the mere presence of socially distinct new- comers and the social concerns their pres- ence stimulates among old-timers motivates behavior that can convert affective pains into cognitive gains.”1 Interviewed about the study, study co-author Katherine Phillips explained,
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