Highlights from Cardozo’s Melnick Symposium on ‘The Death and Resurrection of Dialogue’

By Ellen Waldman    

Each year, the Cardozo Journal of Conflict Resolution, from the Benjamin N. Cardozo School of Law at New York’s Yeshiva University,  enlightens the local mediation community with its annual Jed D. Melnick Symposium.

This year’s symposium was titled, “The Death and Resurrection of Dialogue,” covering the media, politics, communities, racial divides, and in mediation itself. (The symposium agenda, from March 11, is at the link.)

The timely topics ranged from  the impact of various media on political discourse, Ohio State’s Divided Community Project and efforts to stimulate productive community dialogue, the ascendance of remote practice, the disappearance of the joint session in mediation,  and  finally, mediation’s role in addressing the inequities of structural racism.

This blog post focuses on this last, most-challenging topic, and the panelists’ efforts to address what may be mediation’s unwitting contribution to continued racial imbalance and oppression.

The panel was introduced by Bobby Codjoe, Cardozo’s Director of the Office of Diversity and Inclusion and moderated by Prof. Maurice Robinson, an adjunct faculty member in Cardozo’s Kukin Program for Dispute Resolution. The speakers included Prof. Ellen E. Deason, emeritus at Ohio State University’s Moritz College of Law in Columbus, Ohio, Prof. Isabelle R. Gunning at Southwestern Law School in Los Angeles, and Prof. Sharon B. Press, Director of the Dispute Resolution Institute at Mitchell Hamline School of Law in Saint Paul, Minn. 

A central question the panel posed was whether a mediator charged with maintaining impartiality and neutrality can be an anti-racist. To understand this question, it is necessary to analyze the distinction between being a non-racist and being an anti-racist, a distinction that Prof. Robinson helped the audience understand.

Being a non-racist means refraining from personally inflicting harm or behaving in negatively biased way toward BIPOC (Black, Indigenous, People of Color) individuals or groups. But non-racism entails a passive response to BIPOC’s generational pain and trauma, and the structures of oppression that maintain and reinforce them.

By contrast, being an anti-racist means taking any effort or action designed in direct opposition to racism, bias, oppression, marginalization and brutalization of any group of POC. It requires acknowledging that racism is a real and present day system. It interrogates the racialized frameworks people have grown up with which asserts the superiority of White people and the inferiority of BIPOC, and maintains caste-based hierarchies through a web of legal rules, policies and cultural practices.

To be an anti-racist, according to the program panel, is to recognize that the heart of racism is the denial of this system. To be an anti-racist is to work to recognize, identify, and take affirmative actions toward  changing this system. 

Prof. Gunning, when considering how mediator neutrality meshes with the imperative of an anti-racist to affirmatively “call out” racist structures and systems began by asserting that neutrality was an inherently problematic concept. Mediator obeisance to the supposed dictates of neutrality encourages White mediators to stay silent in the face of injustice and risks thwarting  the self-determination of BIPOC in the process. Gunning suggested that neutrality, for many mediators, serves as a proxy for trust and offered that mediators talk instead about the values they seek to enact in the process: equality, dignity and respect.

Prof. Deason began her remarks by delineating two specific instances where a White mediator is most at risk of complicity with structural racism. The first is when the mediator remains blind to racial stereotypes and unaware of the mediator’s own unconscious bias. 

The White mediator, in saying, “I don’t see color,” may, in fact, be simply affirming her or his own White reality as the status quo,  thereby denying the reality or experience of the BIPOC  parties in the mediation room.  A mediator’s determination to adhere to a neutral stance may affect how the mediator chooses to respond to the dynamic between the parties.

Deason revealed some skepticism that mediators can ever be truly neutral and noted that research reveals that mediators engage in selective facilitation, elevating the stories they find most compelling and silencing those stories that are less resonant to them. Both Profs. Deason and Press speculated that for White mediators, that story often will be the White story, whether consciously or not. 

Prof. Press noted that as mediation becomes ever more institutionalized within a court system that prioritizes efficiency and settlement over root-cause problem-solving, the challenges increase. When the goal is to relieve dockets, not surface underlying needs and redress wrongs, the risks that mediation will simply buttress existing racial inequities is significant.

Press and Deason noted that the standard mediator exhortation that parties treat each other with respect and avoid interruptions smacks of “tone policing,” just as the insistence that parties look forward, not back, can rob traditionally disenfranchised groups of the moral context and righteous indignation that undergirds their claims.

The panelists agreed that mediation needed to reconnect with its original emphasis on voice, both in the  community and court settings.  Additionally, they noted that the work of examining embedded whiteness and promoting racial healing is not the task of mediators alone; rather, dispute system designers and stakeholders in related fields, such as conciliators and group facilitators, must also take up the cudgel of self-reflection and modification.

In fact, restorative justice practitioners have started that work. See, e.g., Edward C. Valandra & Waŋbli Wapȟáha Hokšíla, Eds., Colorizing Restorative Justice: Voicing Our Realities (Living Justice Press 2020) (in which 18 authors who are restorative justice practitioners and scholars explore the racism and colonization within the field of restorative justice/restorative practices), and Fania E. Davis, The Little Book of Race and Restorative Justice: Black Lives, Healing, and US Social Transformation (Justice and Peacebuilding) (Good Books (2019).

It is true: the hour was filled with more questions than answers. But the very fact of the conversation reveals that the work  has, indeed,  begun.

* * *

The author is Vice President, Advocacy & Educational Outreach at CPR.  Her bio on CPR’s website can be found here.

#CPRAM22 Highlights: Hot Topics/Initiatives in ADR

By Andrew Ling

Lucila Hemmingsen, a partner in the New York office of King & Spalding practicing international commercial and investment arbitration and public international law, moderated a third-day CPR Annual Meeting panel on cutting-edge topics in ADR. The panel focused on arbitration cases pending before the U.S. Supreme Court, new arbitration legislation, an initiative to reduce arbitration’s carbon footprint, and diversity in ADR.

Hemmingsen was joined at the March 4 online #CPRAM22 session by three panelists:

  • Angela Downes, who is assistant director of experiential education and professor of practice law at University of North Texas Dallas College of Law;
  • Benjamin Graham, an associate at Williams & Connolly, in Washington, D.C., who focuses on complex commercial litigation and international arbitration. He has represented sovereign states and multinational corporations in investment-treaty disputes before ICSID and commercial disputes before leading arbitral institutions, and
  • Rachel Gupta, a mediator and arbitrator with her own New York City-based ADR practice, Gupta Dispute Resolutions. She is a mediator for state and federal court ADR panels and is an arbitrator and panelist for CPR, the American Arbitration Association, and FINRA.

Graham and Downes began the discussion by reviewing arbitration cases pending before the U.S. Supreme Court. Downes highlighted Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, in which the question concerned whether a delegation provision in an arbitration agreement constitutes clear and unmistakable evidence that the parties intend the arbitral tribunal to decide questions of arbitrability.

Traditionally, courts are presumed to decide whether a dispute is subject to arbitration, phrased as the “question of arbitrability.” But in recent Supreme Court decisions, the Court has looked at the parties’ agreement and allowed the arbitral tribunal to decide questions of arbitrability if there is clear and unmistakable evidence indicating parties’ intent to delegate the authority to arbitrators.

Panelist Angela Downes said she views the fundamental Henry Schein issue as the drafting of the arbitration agreement, noting that disputes often arise when the agreement or provision lacks clarity. She pointed out that the case, which was dismissed a month after the oral arguments in January 2021 in a one-line opinion in which the Court said that it had “improvidently granted” review in the case, leave the status of delegation agreement still unsettled enough for potential future litigation.

Rachel Gupta then led the discussion on recent legislation on arbitration, focusing on H.R. 4445, titled Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

The panel discussed the Congressional backdrop to the bill, which was signed into by President Biden on March 3, the day before the panel discussion. In many employment contracts, employees have been bound by arbitration agreements and prohibited from bringing sexual harassment claims to a court. Arbitration proceedings are generally confidential, and the amount of an arbitral award tends to be lower than the damages rendered by a court. And when parties settle the dispute, employees are usually required to sign non-disclosure agreements. As a result, victims of sexual harassment are often silenced.

There are four amendments to the Federal Arbitration Act. First, it does not categorically ban arbitration agreements between employers and employees, but it allows plaintiffs to bring sexual harassment claims to courts. Second, plaintiffs have the option to bring the case individually or on behalf of a class, even if the employer’s arbitration agreement prohibits class arbitration. Third, FAA applicability will be decided by a federal court, not the arbitral tribunal. Finally, the amendments are retroactive.

Gupta pointed out that the bill does not address non-disclosure agreements. Angela Downes said she believed the omission was intended as a compromise to gain bipartisan support for the bill. In addition, many lawmakers and sexual harassment victims view binding arbitration agreements as the cause of the “broken system,” not the non-disclosure agreements.

The new law, the panel suggested, could drastically change employment arbitration practices. As Rachel Gupta commented, it will be interesting to observe if lawmakers intend to make similar amendments to other areas of arbitration, such as consumer class arbitration.

On reducing arbitration’s carbon footprint, Gupta first discussed the Campaign for Greener Arbitrations, founded by U.K. arbitrator Lucy Greenwood in 2019. The Campaign developed a set of Green Protocols to reduce the environmental impact of international arbitrations, such as using electronic correspondence and organizing virtual conferences.

Moderator Hemmingsen shared several changes in international arbitration practice: sending iPads to arbitrators instead of papers; reducing in-person meetings, and using advanced technology to take construction-site photos instead of traveling. She also predicted that more conferences and hearings would be held virtually.

The panel concluded by discussing diversity and inclusion among arbitrators and mediators. There have been several initiatives on appointing diverse neutrals and offering training and networking opportunities, such as the Ray Corollary Initiative, the JAMS Diversity Fellowship Program, New York Diversity and Inclusion Neutral Directory, the ADR Inclusion Network, and the Equal Representation in Arbitration pledge. Many arbitral institutions have taken action to place more women in arbitration panels. And CPR incorporated a “Young Lawyer” Rule in its Administered, Non-Administered and International Arbitration Rules to increase opportunities for junior lawyers to take a more active role in arbitration hearings (see Rule 12.5 in the rules available at https://www.cpradr.org/resource-center/rules/arbitration).

The panelists agreed that promoting diversity among arbitrators and mediators must be a concerted effort from ADR providers, arbitrators, law firms, and clients. Progress in diversity and inclusion is needed to grow the profession and benefit the next generation of ADR practitioners.

* * *

The author, a third-year law student at the University of Texas School of Law, in Austin, Texas, is a CPR 2022 Spring Intern.

[END]

Practice and Power: Highlights from NYLS’s ADR and Diversity Symposium

By Tamia Sutherland

New York Law School’s Alternative Dispute Resolution Skills Program annual ADR and Diversity Symposium featured a former New York governor and a lineup of prominent practitioners and legal organization officials.

The Jan. 27 event presented keynoter David A. Patterson, the 55th governor of New York who served from 2008-2010. It also featured speakers and an expert roundtable panel that discussed diversity in ADR, their experiences, and the legal profession more broadly.

Following welcoming remarks, Patterson’s keynote speech highlighted the need for discussions like the symposium, sharing personal stories about his first mediation job in the early 1970s and working for the NAACP in the early 1980s. He explained that he transferred the skills he learned in ADR to his position as governor. And the skills were instrumental when working with the New York Senate Majority Leader and Assembly Speaker in efforts to balance the state budget.

Next, Deborah Enix-Ross, the American Bar Association’s president-elect and senior adviser in international dispute resolution at New York-based Debevoise & Plimpton, provided ABA history. She shared that in 1912, the ABA rescinded the membership of William H. Lewis, the first black Assistant U.S. Attorney, and restricted membership to white lawyers only.  ABA membership, she explained, was restricted until a resolution passed in 1946 that stated that membership is not dependent on race, creed, or color.  

Enix-Ross also provided information on the ABA’s 2018 resolution that urged domestic and international dispute resolution providers to expand their rosters with minorities, women, people with disabilities, and people of diverse sexual orientation/gender identities. She encouraged the selection of diverse neutrals.

Then, Thomas Maroney, the ADR Committee Chair of the Defense Research Institute, a 52-year-old Chicago-based membership organization of defense attorneys and in-house counsel, discussed insurance industry diversity initiatives. One of DRI’s main goals, he said, is to gather ADR diversity data and put it in a central database. More specifically, he said the data will show national data averages for appointments of underrepresented neutrals, which will help insurance companies assess and identify which law firms are increasing the frequency of appointments of underrepresented neutrals.

An expert roundtable panel, followed, moderated by Rekha Rangachari, the Executive Director of the New York Arbitration Center, a nonprofit that promotes New York’s role in international arbitration, and Jeffrey T. Zaino, Vice President of the Labor, Employment and Elections Division of the American Arbitration Association in New York. The panelists included:

After the panelists introduced themselves and the organizations they represent, the moderators began with a question inquiring about what is not working in the profession and whether continued discussions about diversity issues make a significant difference. Panelist Duggal explained that in ADR, the central tension lies with the fact that a major tenant of the processes is self-selection. Panelist Gupta flipped the question, and talked about how the profession has succeeded and is working to introduce younger neutrals to the field.

Moderators then asked should diversity discussions move past gender and race. The panelists explained that the conversation has to move beyond gender and race, especially when examining diversity from a global lens.

Panelist Duggal stated that power structures globally are generally held by Caucasians. The concept of global white supremacy was raised. The moderators countered with a question, inquiring whether white male arbitrators are being excluded from diversity initiatives.

In response, a panelist stated that the answer is yes, assuming the hypothetical white male is straight, healthy, and able-bodied. Moreover, the panelist acknowledged feelings of exclusion and suggested therapy and vocalization to reveal the triggers that may be coming from a hostile place internally.

The last question to the panelists was how far one could actually push ADR users—that is, in-house counsel–to select diverse neutrals. The themes from the answers suggest using education, awareness, networking, and bringing the problem and solution to light.

* * *

The author, a second-year law student at the Howard University School of Law in Washington, D.C., is a CPR 2022 Spring Intern.

[END]

Notes on Diversity: Princeton’s Ramona Romero on Higher Education; Toronto Consultant/Neutral Verlyn Francis on ADR Ethics

By Arjan Bir Singh Sodhi

Here is a synopsis of the CPR Diversity in ADR Task Force meeting conducted online on Tuesday, Oct. 5, 2021.

Welcome & Introductions

CPR Diversity in ADR Task Force Co-Chairs the Hon. Timothy K. Lewis and the Hon. Shira A. Scheindlin welcomed and thanked the panelists and attendees for joining.

Interview with Ramona E. Romero, vice president and general counsel at Princeton University, in Princeton, N.J.

Task Force co-chair Timothy Lewis, retired Third U.S. Circuit Court judge and counsel in Schnader Harrison Segal & Lewis started the panel discussion on diversity in ADR. He gave a brief introduction for Romero and asked her to share her experience as an immigrant to the United States. Romero started her interview by thanking all the participants of the meeting. She also shared her story of moving to the United States at age 11 from the Dominican Republic. From an early age, Romero said she emphasized the value of working hard. She placed much importance on collaboration and how it helped her learn.

Task Force co-chair Shira Scheindlin, retired New York U.S. District Court judge and of counsel in New York’s Stroock & Stroock & Lavan, led the second part of the interview, asking Romero to share her views on considering characteristics that are fair for admission purposes in law schools and universities. Romero replied that she believes affirmative action is still required due to racial and ethical inequalities in schooling, housing, employment, and policing.  She discussed Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199, which highlights the issues faced by the students regarding their university admissions.

Romero then shared her view on immigration policy, noting, “Immigration is essential to higher education as it is essential to the diverse economy of the United States.” She emphasized the importance of having a diverse U.S. judiciary as it increases trust and perception of fairness. Because, she said, the majority of people who deal with the judiciary are people of color, having a diverse judiciary with more people of color and women will aid in building trust for the judicial process.

Romero concluded her discussion by hoping that corporations, businesses and interested parties can do better in the future by promoting the advancement of women and people of color in the legal profession.

Verlyn Francis, Presentation on “Ethics in Arbitration: Bias, Diversity, and Inclusion.”

Francis is an arbitrator, mediator, and trainer at Isiko Dispute Resolution Consultants, Toronto, and a Professor of ADR at Centennial College, also in Toronto. She started her presentation by talking about the genesis of ethics and impartiality of arbitrators and how we can reduce impartiality bias in arbitration.

She stressed the importance of the code of ethics in the arbitration proceeding. Francis spoke about the consequences of applying those ethical codes to people who didn’t play any role in developing those codes. She said she hopes that many institutions will work on improving rules, ethics, and impartiality in arbitration.

She also spoke about layers of cultural affiliation that can often create stereotypes for other cultures. Hence, she said, an arbitrator should always be aware of implicit bias that can have discriminatory actions towards the parties. She then acknowledged CPR’s recent implicit bias webinar, Imperfect Impartiality: How Neutrals Can Combat Implicit Bias.

She said that often implicit bias operates without awareness of the participants, but the discrimination it produces is visible to those at a disadvantage.

She also expressed concern for the lack of diversity in arbitration that can have its roots in the legal profession, since ADR practitioners are mostly former judges or senior lawyers in law firms where minorities often remain significantly underrepresented.

She also mentioned the Jay-Z case in which the American Arbitration Association roster was challenged due to the lack of available African-American arbitrators. Since that case, the AAA has worked to develop a diverse roster. Francis also noted CPR’s initiatives to further promote diversity and inclusion in the field of ADR. She praised the steps taken by the American Bar Association by passing Resolution 105, which encourages the inclusion of diverse neutrals. She concluded her presentation by encouraging all the panelists to promote diversity in ADR.

* * *

Allen Waxman, CPR’s President and Chief Executive Officer thanked all the panelists for their participation in the discussion. Waxman discussed the importance of understanding dynamics within the tribunal to ensure that all the efforts to increase diversity translate to greater inclusivity.

CPR Announcements closed the Task Force meeting, discussing several events hosted by the CPR Institute, including the 2021 CPR International Conference on Business Dispute Management, which followed the Diversity Task Force event on Oct 6-7 (information at https://www.cpradr.org/events-classes/upcoming/CPR-International-Conference) (Watch CPR Speaks for excerpts from the conference). More events can be found here, and participants were asked to save the date for the 2022 CPR Annual Meeting,  March 2-4.

* * *

The author, a CPR 2021 Fall Intern, is an LLM candidate at the Straus Institute for Dispute Resolution, at Malibu, Calif.’s Pepperdine University Caruso School of Law.

[END]

CPR Releases Update to Employment-Related Mass Claims Protocol

The International Institute for Conflict Prevention and Resolution (CPR), working with a diverse task force of leaders in employment law and alternative dispute resolution (ADR), has launched an updated version of its Employment-Related Mass Claims Protocol (the “Protocol”). The Task Force included leading counsel from the plaintiff’s bar, in-house employment counsel, corporate defense attorneys and neutrals (arbitrators and mediators).

The original Protocol was launched in November 2019.  It was reviewed by U.S. District Court Judge Edward M. Chen, of the U.S. District Court for the Northern District of California, in November 2020, in McGrath v. DoorDash, Inc., No. 19-cv-05279 (N.D. Cal. Nov. 5, 2020), who found that “the terms of the Mass-Claims Protocol appear fair.”  Working together over the past 10 months, the Task Force sought to make improvements and further enhance the Protocol. 

An initial set of revisions by the Task Force was released in April 2021, and incorporated CPR’s then newly-launched Administered Employment Arbitration Rules as well as other clarifying changes. See CPR Speaks, April 14, 2021.  Since then, the Task Force has continued to work together to develop the current version of the Protocol, which includes a novel approach to selecting neutrals that will enhance both efficiency and diversity.  The updated version also provides greater detail in describing the mediation process and other procedures.

The procedure outlined in the Protocol applies where it has been incorporated into an agreement between the parties, either before or after a dispute arises, and where there are 30 or more similar cases filed with CPR against one company.

The procedure requires fast track arbitration of randomly selected test cases while proceedings in the other cases are paused. The awards from those cases are anonymized and provided to a mediator to work with the parties and their counsel in trying to identify a global framework for resolving the remaining cases.  If the mediation is successful, each person who brought an arbitration will be presented with an opportunity to settle their case according to the global framework or to proceed with their arbitration. If the mediation fails to identify a global framework, then any of the parties may opt out of the arbitration process and go to court.

Distinguishing features of the Protocol include:

  • Requiring within the Protocol itself that certain due process protections be afforded to employees or others who file cases.
  • A novel fee structure that does not require the company to pay all filing fees up front but instead collects an upfront initiation fee followed by fees paid as each case is addressed.
  • Consistent with CPR’s Diversity Commitment, nominating a diverse pool of arbitrators from which the parties will choose the arbitrators who ultimately will resolve their cases.
  • Innovative mechanisms to encourage all parties to reach a faster resolution of their cases, providing parties with the opportunity and incentives to reach a global framework for resolving all of their cases before proceeding with more arbitrations.

In keeping with its commitment to the parties, CPR sets forth the procedures in detail so that the parties may understand what is expected of them and are provided a practical pathway toward resolution. CPR is also willing to work with the parties on agreed-upon variations to these procedures.

“It has been a privilege to work with and be guided by the experiences and perspectives of this Task Force,” noted Allen Waxman, President & CEO of CPR, adding, “With the benefit of the members’ input, the Protocol offers an innovative procedure for employers and their employees or contractors to resolve their disputes when many arise at once – providing the parties with more options toward finding a resolution.”

Jahan Sagafi, partner of Outten & Golden, Task Force Co-Chair, and a lawyer who frequently represents workers in employment disputes, stated that “while I am very concerned about Supreme Court precedent allowing employers to force workers to submit to individual arbitration, given those realities, CPR’s Protocol provides a fair process to resolve those claims efficiently.  CPR should be commended for considering a variety of perspectives from the Task Force in completing the Protocol.”

“CPR’s Protocol represents a valuable contribution toward the resolution of many similar employment claims,” commented Task Force Co-Chair Aaron Warshaw, a partner in Ogletree, Deakins, Nash, Smoak & Stewart, a law firm that represents management and companies in labor disputes, “The Protocol is an important option for companies putting in place arbitration programs and one that should be seriously considered.”

“CPR has consistently been a leader in offering innovative ways to resolve disputes,” observed the Honorable Timothy K. Lewis, Task Force member, arbitrator and a retired judge on the U.S. District Court and Third U.S. Circuit Court of Appeals, adding, “The Protocol is another such offering for the complex challenges posed by the filing of a mass of cases. Its procedures reflect careful considerations to foster resolution in a fair and efficient fashion. In addition, the Protocol’s commitment to greater diversity in the pool of candidates who will be selected to arbitrate cases is also a meaningful step in addressing the lack of diversity and inclusion in the field of ADR.”

For more information, see the File a Case or Employment Disputes sections of CPR’s website, or contact Helena Tavares Erickson at herickson@cpradr.org.  Also review Frequently Asked Questions for the Protocol.

ABOUT CPR

Established in 1977, CPR is an independent nonprofit organization that promotes the prevention and resolution of conflict to better enable purpose.

The CPR Institute drives a global prevention and dispute resolution culture through the thought leadership of its diverse member companies, leading mediators and arbitrators, law firms, individual practitioners, and academics. It convenes committees to share best practices and develop innovative tools. It connects thought leaders through global, regional, and smaller events. It publishes a monthly journal on related topics and advocates for expanding the capacity for dispute prevention and resolution globally through a variety of initiatives.

CPR Dispute Resolution provides leading edge dispute management services – mediation, arbitration, early neutral evaluation, dispute review boards and others – as well as training and education. It is uniquely positioned to resolve disputes by leveraging the resources generated by the leaders who participate in the CPR Institute.  It has deep experience in dispute management, a deep bench on its global Panel of Distinguished Neutrals, and deep expertise across a variety of subject areas.

Visit cpradr.org to learn more.

[END]

#CPRAM21: Committing to More Diversity in ADR

If you missed the 2021 CPR Annual Meeting in January—the first free public meeting held online in the organization’s 40-year history—the videos are being posted on CPR’s YouTube Channel. While additional videos will be posted for CPR members only, the first, linked here on CPR Speaks, is open access and features the keynoters, CNN Anchor and Chief Political Correspondent Dana Bash and General James Mattis, who is former U.S. Defense Secretary. Click the Subscribe button at YouTube for alerts and for more CPR content. For information on full access and joining CPR, please visit CPR’s Membership webpage here.

By Amy Foust

The CPR 2021 Annual Meeting’s final panel presentation encouraged participants to take action for a more equitable alternative dispute resolution community, and focused on CPR’s Diversity Commitment

The Jan. 29 third-day panel was hosted and moderated by CPR’s Anna M. Hershenberg, who is Vice President of Programs and Public Policy, as well as CPR’s Corporate Counsel.

The discussion, “Time To Move The Needle! CPR’s Diversity Commitment and Model Clause–and How to Track for Accountability,” included panelists

  • Hannah Sholl, Senior Counsel, Global Litigation & Competition at Visa Inc.;
  • Brenda Carr, Chief Diversity & Inclusion Officer at Arnold & Porter Kaye Scholer in Washington, D.C.;
  • Tim Hopkins, a senior consultant at McKinley Advisors, also in Washington; and
  • Linda Klein, a partner in the Atlanta office of Baker, Donelson, Bearman, Caldwell & Berkowitz.

The panel offered insights, simple practice changes, neutral selection templates, and diversity tracking tools for promoting diverse ADR panels.

Moderator Hershenberg kicked off the presentation with a poll of attendees, which asked, “What is the number one reason holding you back from selecting a diverse arbitrator or mediator for your matters?” The most popular answer, with 26% of the audience, was “I’m too nervous to select a neutral I don’t know or who my colleagues haven’t recommended.”

Hershenberg also reviewed the requirements under the CPR Diversity Commitment, including recruiting and hiring diverse neutrals.  She noted early Commitment adopters, including  Baker Donelson, ConocoPhillips Co., KPMG LLP, Shell Group, and Visa, among many others.  (Companies and law firms may sign the commitment on CPR’s website at www.cpradr.org/about/diversity-commitment.) Hannah Sholl discussed Visa’s process of managing diversity in light of adopting and signing the commitment.

These efforts, of course, raise the question of why practitioners don’t know more diverse neutrals.  Linda Klein, acknowledging research into affinity bias, said that in ADR, “the parties choose their judges, the arbitrators, and most people are comfortable with people who come from similar backgrounds.” 

Klein recommended applying the Mansfield Rule, which suggests ensuring that any slate of candidates includes at least 30% candidates who self-identify as diverse in some way. See, e.g., Homer C. La Rue, “A Call—and a Blueprint—for Change,” Dispute Resolution Magazine (Feb. 17 (available at http://bit.ly/2ZZ3zvJ).

The panel agreed that an easy way to identify diverse candidates is to request a slate from an institution like CPR, which strives to include diverse candidates.  Klein suggested that it is appropriate to complain if an institution provides a slate that is not diverse, and to request a substitute slate that includes a significant number of diverse candidates. 

The panel agreed that it might be helpful to reach beyond customary contacts to seek input on a neutral, but noted that inclusion on a provider institution panel alone is an indication that the proposed neutral has been vetted.

The audience and the panel repeatedly noted a variety of resources available to identify and research diverse candidates in addition to CPR Dispute Resolution, including the National Bar Association, the Metropolitan Black Bar Association, the African Arbitration Association, the American Bar Association, JAMS, Arbitral Women, the American Arbitration Association, and REAL-Racial Equality for Arbitration Lawyers.  The panel also provided extensive advice for potential neutrals on entering the field and for current neutrals on increasing their exposure and, ultimately, appointments.

Tim Hopkins and others noted that it can be helpful to sign the CPR Diversity Commitment or a comparable business pledge, and then checking to see if other parties to the dispute have signed similar diversity or corporate pledges.  It might be easier to convince other stakeholders to enlist an unfamiliar neutral if they have made a commitment to advance diversity–especially a specific commitment to advance diversity in ADR.

A simple, practical tip the panel provided was adding diverse neutrals clauses to organizations’ standard contract templates, so that there is a default to require specifically a diverse slate. There also was consensus that those clauses rarely generate mark-ups or controversy, and putting them in a template makes it that much more likely they will be added to a draft agreement. CPR provides a model clause that calls for at least one member of a tripartite panel to be diverse. (See link above.)

Other easy, low-cost tips, according to the panel, included praising diverse neutrals, so that their skills are recognized; confronting bias when it arises (e.g., statements like “Are you sure she can handle a $100 million case?”); including diverse neutrals in recommendations to rating services and providers; and, especially with travel restrictions in view of Covid-19 reducing the cost of attendance at virtual hearings, providing exposure by including diverse attorneys in ADR activities so that they are developing the required skills.

Attendee comments presaged the importance of measuring progress, and the panel agreed with the audience comments. Linda Klein proposed setting up a table of neutral qualifications before preparing a candidates’ list to facilitate an impartial selection process.

Brenda Carr presented a spreadsheet for tracking not only the panelists’ individual talents, but also the composition of the slates for those panels, and which candidates were selected.  Carr explained that tracking progress also helps to identify roadblocks—it allows advocates and parties to “have the conversations if you’re presenting a particular arbitrator as a possibility and you notice that the client is constantly turning them down. Maybe you want to follow up and have a conversation about why this person isn’t someone that you are ultimately selecting.” 

Looking at the tracking programs presented by the law firm representatives, Visa in-house counsel Hannah Sholl said that seeing this kind of work, presented in this way, “speaks a lot, and perhaps even more sometimes than … filling in the boxes and the ABA Diversity Commitment  [see https://bit.ly/3sGQ3tc]. You know . . . the firm [that] is tracking this cares about it, . . . is going through a process . . . and they have had a commitment.”

Overall, the panel agreed that the important thing was to start: Whether by signing a diversity commitment or tracking ADR diversity in just one department or working group, that first step is important.

* * *

The author is an LLM candidate studying dispute resolution at the Straus Institute, Caruso School of Law at Malibu, Calif.’s Pepperdine University, and an intern with the CPR Institute through Spring 2021.

[END]

Diversity in ADR and Anti-Racism Resources and Initiatives

The following is a compilation of diversity and anti-racism resources, recommendations, and initiatives shared by CPR members and friends.

ADR Initiatives/Resources

Books/Articles/Reading Lists

Podcasts

Videos/Films

Additional Resources

Invitation for an Open Dialogue

A letter and invitation from CPR President & CEO, Allen Waxman

Dear CPR Members and Distinguished Neutrals:
Like many of you, we are frustrated, concerned, angry and sad: because of the grotesque inhumanity evidenced in the death of George Floyd; because the names of George Floyd, Breonna Taylor and Ahmaud Arbery are just the latest in a terrible list of fellow human beings who have had their breaths tragically snuffed out; because of the destruction with which some have responded to that inhumanity; because of the evident and understandable pain of so many; because we are so disconnected; because we haven’t earned that connection. Yet, as a community, we also believe that conflict must breed resolution, and resolution must reinforce our purpose. Our purpose has to be to combat racism, discrimination, implicit bias and injustice. We must commit to the small steps reflected in our initiatives to recruit, promote and select diverse neutrals. And, we must also commit to the giant leaps of trust, courage and sacrifice necessary for change to become reality.  Let us remember the observation that Andrew Young shared with our community in his 2018 keynote address at CPR’s Annual Meeting:  “…in every conflict there is a streak of humanity.”  

This Friday, June 12th, at 12:30 ET, via Zoom, let us come together and connect our humanity. No agenda just a safe space. Let’s open a dialogue together to share.  Our conversation will be moderated by Judge Timothy Lewis, CPR neutrals Erin Gleason Alvarez and Gail Wright Sirmans, and CPR board members: Bayer U.S. General Counsel Scott Partridge, Winston & Strawn partner Taj Clayton, and Debevoise & Plimpton partner John Kiernan.                

For CPR Members and Distinguished Neutrals Only
Contact Richard Murphy at rmurphy@cpradr.org for your registration link

American Bar Association Adopts Resolution 105 to Promote Diversity in ADR

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.
  • 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.

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.

A Report on the CPR European Congress on Business Dispute Management (Part I)

EU flagBy Vanessa Alarcón Duvanel

This is the second post of a new CPR Speaks feature, “The European View,” offering valuable insights and perspectives from CPR’s European Advisory Board (EAB).

On 31 May 2018, CPR held its annual European Congress on Business Dispute Management in London. Organized by CPR’s European Advisory Board (the “EAB”) and kindly hosted by SwissRe in the incredible Gherkin building, the event convened European and American practitioners for a successful day of discussion led by four interesting panels. 

This blog piece reports on the exchanges and discussions heard at the European Congress.  Summarizing this full day and four panels into one blog article would have deprived the readers of too many insightful views and ideas shared at the Congress. Therefore, we have split this reporting in two parts: a Part I sharing the morning panel sessions, and a Part II covering the afternoon panels.

The event kicked off with welcoming remarks by Maurice Kuitems, (EAB Chair, Fluor Corporation) and Olivier André (CPR), following by Elena Jelmini Cellerini, (EAB Member, SwissRe), and Nicola Parton (Swiss Re). Ms. Parton offered an inspiring message on the role of ADR and the importance of sustainable dispute resolution mechanisms, a goal that requires full respect of transparency principles and responsiveness to issues raised by our counterparts.

Make ADR great again! The in-house counsel’s perspective

Kenneth B. Reisenfeld (BakerHostetler) moderated the first panel of the day, which was exclusively composed of in-house counsels: James Cowan (CPR EAB Member, Shell International Ltd); Noah J. Hanft (CPR); Isabelle Robinet-Muguet (EAB Vice-Chair, Orange); and Gill Mansfield (Media Law Services).

The first question put to the panelists was whether there was a past renaissance about ADR, or has the ADR process gotten off track. The industry has come a long way since its early years. Many concepts have developed and there are now growing concerns that arbitration is not fulfilling its promises of being fast, confidential and efficient. These criticisms are legitimate and impossible to ignore in light of the high costs and duration of certain arbitral proceedings or the inclusion of U.S.-style disclosures in arbitral proceedings.

There is consequently a real need to make ADR great again, and to find business solutions to business disputes. The panel shared the in-house perspective on some of the means to improve the ADR process:

  1. Involving the business people

All speakers agreed that involving their colleagues from the “business side” is certainly not an easy step, yet it is important and a critical task of the legal department. When a dispute arises, the company’s business does not freeze and the project team has little time to devote to a dispute. The business team’s approach to the dispute will be different from that of the litigators and their early involvement can help define the ADR process in a more business sensitive manner, as opposed to a pure litigation proceeding.

Achieving adequate collaboration from the business people in a dispute requires a cultural environment sensitive to ADR and its benefits. This is only possible with sufficient trainings and an overall commitment of the management to ADR.  As the panelists phrased it several times, the business people must be able to understand the “importance of taking ownership of the matter.”

  1. Early case assessment (ECA)

For the panel, an early case assessment (ECA) is a critical element to any dispute resolution mechanism. It should be the first step in any dispute and is fundamental to understanding the business needs. A good ECA will serve in many ways: it will help shape the ADR process; guide the relationship with outside counsel; and highlight the skills and expertise to look for in the designation of a mediator or arbitrator, or in the selection of experts.

  1. Mediation

According to the panel, using mediation and appointing a commercially minded neutral can improve the efficiency of the dispute resolution mechanism. The financial savings can be significant, particularly in cases where the appointment of a neutral with relevant skills allows the parties to negotiate entirely (or partially) without having to involve outside counsel.

  1. Multi-tier / Step dispute resolution clauses

The speakers briefly touched upon multi-tier dispute resolution clauses, whereby in case of a dispute the parties undertake to take certain steps prior to commencing arbitration in an attempt to amicably settle the dispute. Some of the panelists view such clauses as a thoughtful way of bringing mediation into the process early, and a means to facilitate the involvement of the business people. Other panelists do not consider mandatory mediation as an efficient tool. Every dispute is different and settlement negotiations and/or mediation may sometimes be more appropriate at a later stage. An ADR-friendly corporate culture should also render multi-tier clauses unnecessary.

  1. Diversity

All panelists concurred that a lot of work has been done but so much remains to be accomplished in order to bring more diversity to the ADR process—particularly with respect to age and geographical location. From the panel’s perspective, the in-house counsels have a central role to play in this issue. They can, for example, ask the lawyers to “dig deeper” and present new names on the list of arbitrators, to encourage new appointments, which in turn will contribute to broadening the existing pool of experienced arbitrators for large and complex commercial disputes and will consequently increase the efficiency of arbitral proceedings.

The Progress and impact of the European Directive on mediation: Where do we stand and what’s next?

The panel was composed of mediation experts from various European horizons: Alexander Oddy (EAB Member, Herbert Smith Freehills) who served as moderator; Vanja Bilić, PhD (Ministry of Justice of the Republic of Croatia); Professor Pablo Cortés (Leicester Law School, University of Leicester; Martin Brink, PhD (Van Benthem & Keulen); Ivana Gabrić (Končar – Electrical Industry, Inc.); and Tsisana Shamlikashvili (President, Russian National organization of Mediators, Founder of the Center for Mediation and Law, Head of Federal Institute of Mediation).

The European Union has enacted two “mediation” directives, namely: (1) the “European Directive 2005/52/EC on the facilitation and access to ADR and the promotion of amicable settlement” (the “EU Directive on mediation”), following which some member States have amended their domestic rules to impose mediation prior to litigation; and (2) the “Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes” (the “Consumer Directive on ADR”) which imposes mandatory mediation to all businesses with consumers.

The panelists extended the scope of their discussion beyond its title and the impact of the EU Directive on mediation to include private initiatives taken by corporations to impose mandatory mediation, independently from legislation.

Both the European Mediation Directive and the Consumer Directive on ADR have had a positive impact on ADR.  There is, however, still room for improvement. As with any major change, it will take time. All speakers agreed that improving the use of mediation requires increasing awareness of the benefits of mediation. The potential to save money and time and to salvage the business relationship is significant with mediation, and users need more knowledge of these advantages. One avenue mentioned by different speakers to raise awareness about mediation consists of allowing the management to witness a mediation proceeding in order to understand concretely how it works and how it deploys its benefits for the company.

Ivana Gabrić shared Končar’s success story of imposing mandatory mediation. In 2005, unrelated to any legislative action, the company decided to introduce a mandatory mediation policy for all of its contracts. Within a few years, the policy led to the elimination of all court litigation. Today, Končar has no pending litigations. In light of the success, the management extended the policy to labor disputes.

The EU Mediation Directive also triggered changes beyond the borders of the EU, such as in Russia where—Tsisana Shamlikashvili reported—mediation represents a big cultural change. In a country where courts are very busy and obtaining a judgment has become part of the ordinary business (regardless of the time it takes and any ability to enforce upon such judgement), introducing mediation is equivalent to changing mentalities and requires significant effort. But, the progress is on-going and the efforts deployed to convince the users of the benefits of mediation are starting to pay off.

Stay tuned for part II reporting on the panels discussing “Climate change and ADR” and “Complex financing of ADR.”

 

Vanessa Alarcon Duvanel is a member of White & Case’s international arbitration group and is based in the firm’s Geneva office. She is also the Secretary of CPR’s European Advisory Board. She can be reached at vanessa.alarcon@whitecase.com.