By Franco Gevaerd
On August 6, 2018, the American Bar Association (“ABA”) House of Delegates adopted Resolution 105 proposed by the ABA Section of Dispute Resolution. The resolution urges international and domestic ADR providers to “expand their rosters with minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities” and to “encourage the selection of diverse neutrals.” The resolution also urges ADR users to select and use diverse neutrals.
Resolution 105 is a by-product of the ABA Mission Goal III (“Goal III”) adopted in 2008 – which aims to eliminate bias and enhance diversity in the legal profession – and of the ABA Resolution 113 adopted in 2016, which urges all providers and users of legal services to expand and create opportunities at all levels of responsibility for diverse attorneys.
The Resolution 105 report contextualizes the problem of underrepresentation of diverse neutrals in ADR and identifies two main issues, namely i) the “roster issue” and ii) the “selection problem.”
The “roster issue” is the primary issue of underrepresentation of diverse neutrals on ADR provider rosters. The report shows data collected from ADR providers and other studies, such as the 2014 ABA Section of Dispute Resolution Snapshot Survey, which demonstrate that ADR is one of the least diverse fields in the legal profession.
The “selection problem” is the aggravating issue regarding the low percentage of selection of those diverse neutrals who are on the roster. In this regard, the report suggests that the combination of confidentiality and network-based culture during the selection process favors implicit bias and obscurity, which consequently leads to this low percentage.
Conna Weiner, one of CPR’s Distinguished Neutrals, was very involved in the group effort seeking passage of Resolution 105 in her role as co-chair of the ABA Section of Dispute Resolution Women in Dispute Resolution Committee over the past bar year. “Resolution 105 and the accompanying report are important steps forward in ensuring that corporate users and their outside counsel are aware of the serious diversity issues in ADR and add this concern to their attempts to enhance diversity in the profession as a whole,” Ms. Weiner noted. She suggested that inside counsel, for example, might consider urging their outside counsel to send them lists of diverse arbitrators and mediators for consideration in addition to requiring outside counsel to use diverse teams of lawyers for their matters.
The ABA will be rolling out Resolution 105 this Fall with materials and toolkits to assist stakeholders. The full resolution and report can be accessed here.
Over the past few years, ADR providers and other organizations have undertaken initiatives to increase diversity in dispute resolution. ArbitralWomen, for example, is a strong advocate for the increased representation of women in international arbitration. Its initiatives include a mentorship program and moot funding. Another example is the Pledge on Equal Representation of Women in International Arbitration, which has now more than 2,900 signatories and aims to increase the number of women appointed as arbitrators on an equal opportunity basis. Many other organizations are continuously working to improve diversity in ADR, such as the ABA Section of Dispute Resolution Diversity Committee, the Committee on Diversity of the New York State Bar Association’s Dispute Resolution Section and the ADR Inclusion Network.
Since the establishment of its National Task Force on Diversity in ADR in 2006, CPR has also undertaken many initiatives to increase diversity on its Panel of Distinguished Neutrals and in ADR generally. Those initiatives include the following:
- CPR’s Diversity Commitment – CPR’s Commitment encourages law firms and corporations to include qualified diverse neutrals on any list of mediators or arbitrators they propose.
- Diversity Statement in nomination letters – CPR’s Dispute Resolution Services (“DRS”) recently added a Diversity Statement to the nomination letters sent to parties. The language of the diversity statement reinforces CPR’s commitment to diversity and inclusion in ADR, reminds ADR users of the benefits of diversity for the quality of decision-making, and encourages them to remain cognizant of the role that implicit bias can play in the selection process.
- “Young Lawyer Rule” – CPR recently incorporated to its non-administered arbitration rules (Domestic and International versions) a “Young Lawyer Rule”. The rule aims to increase the number of “stand-up” opportunities for young attorneys to examine witnesses and present arguments at arbitral hearings.
- Diversity Program in collaboration with the Leadership Council on Legal Diversity (LCLD) and the Financial Industry Regulatory Authority (FINRA) – The program aims not only to train its diverse fellows to become mediators and arbitrators, but also provides meaningful opportunities to position participants to ultimately become selected as neutrals. The program offers formal training in ADR, practical observational experience, mentoring by skilled CPR neutrals, and networking opportunities within CPR’s ADR community.
- CPR Award for Outstanding Contribution to Diversity in ADR – Created in 2007, this award recognizes a person or organization having significantly contributed to diversity in the alternative dispute resolution field. The winners of the 2018 Award were international arbitrator and CPR Distinguished Neutral Lucy Greenwood and ICC’s Mirèze Philippe, co-founder of ArbitralWomen, for their long-standing commitment to diversity and focus on data and transparency in addressing diversity in ADR.
- CPR’s Young Attorneys in Dispute Resolution Group (Y-ADR) – This program is targeted at the younger generation of lawyers and provides them with training and networking opportunities.
- Y-ADR Annual Award for Efficient and Effective Collaboration Between Corporate Counsel and Outside Counsel – Sponsored by Assurant, GSK, and White & Case, the Y-ADR Annual Award honors young lawyers who write about efficient relationships between corporate counsel and outside counsel in the context of ADR Proceedings.
As for diversity on its Panel of Distinguished Neutrals, 27% of CPR’s roster in fiscal year 2018 was composed of diverse neutrals, of which 17% were women and 10% were male minorities. Regarding appointments, 31% of all arbitrators selected in 2018 were diverse, of which 27% were women. In the 2018 fiscal year, the selection of women as neutrals increased by 8% in comparison to fiscal year 2017.
Although there has been generally some progress on ADR provider rosters in terms of diversity, the numbers are still far from satisfactory and only show improvement in terms of gender diversity. The representation of other diverse groups has not significantly improved over the past few years, signaling that there is a need for increased efforts and initiatives focusing on greater inclusion of these groups.
One example is the underrepresentation of the LGBTQ+ community in ADR. Olivier André (CPR), together with William Crosby (Interpublic Group), Linda Kagan (The Kagan Law Group) and Jeffrey T. Zaino (American Arbitration Association) recently addressed this issue on a panel focused on “Developing a Career in ADR” at the LGBT Bar 30th Annual Conference, held in New York in August 2018.
All speakers on the panel concurred that more initiatives needed to address the inclusion of the LGBTQ+ community in the field. Messrs. André and Zaino explained that their respective organizations are committed to increasing LGBTQ+ diversity on their panels and are actively looking for qualified applicants for their rosters.
Furthermore, Mr. André pointed out the importance of self-identification by applicants to the CPR Panel of Distinguished Neutrals. He explained that CPR always strives to nominate arbitrator and mediator candidates who are both qualified for the dispute and diverse. Therefore, it is important for CPR Neutrals to provide information about themselves so that the institution can include as many diverse candidates as possible on the lists sent to the parties.
The underrepresentation of the LGBTQ+ community is also reflected in the legal profession as a whole. One of the most recent initiatives undertaken by the ABA to address this issue was to launch a survey in partnership with the Burton Blatt Institute at Syracuse University. The survey aims to examine the opportunities and challenges facing legal professionals in the 21st century focusing on diversity and inclusion for lawyers with disabilities and/or who identify as LGBTQ+. The survey is open to all legal professionals and can be accessed here.
In conclusion, increased diversity on the ADR provider rosters not only offers the parties more options to select neutrals better suited for their cases, but also increases the quality of decision-making and reinforces the integrity of arbitration as a legitimate dispute resolution process. With Resolution 105, the ADR community has taken another important step to increase diversity in the field.
The author is a CPR Institute Legal Intern. He holds a LL.B. from Pontifical Catholic University of Paraná (Brazil) and a LL.M. in International Commercial Law and Dispute Resolution from Pepperdine Law/Straus Institute for Dispute Resolution.