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.

How Far Can the Bench Go? The ABA on Judges’ Independent Research

By Elena Gurevich

Last month, the American Bar Association ABA Standing Committee on Ethics and Professional Responsibility, which develops model ethics standards for attorneys and judges, took on the judiciary’s use of the web in trial work.

The committee published Formal Opinion 478, “Independent Factual Research by Judges Via the Internet,” highlighting how “a vast amount of information available on the Internet exposes judges to potential ethical problems.” Released Dec. 8, the opinion is available at http://bit.ly/2mOetAr.

The formal opinion may have implications for alternative dispute resolution. It defines the term “judge” as “anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary.” See Model Code of Judicial Conduct, Application § I(B)(2011).

The question is whether it can be inferred that arbitrators fall into this category as well, subjecting their neutrals’ roles to the opinion’s rules.

The general rule, the opinion notes, is Model Code of Judicial Conduct Rule 2.9(C).  The rule states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” A comment to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”

In the opinion, the committee stresses a distinction between the “legislative facts”—defined as “general facts which help the tribunal decide questions of law and policy and discretion”—and “adjudicative facts,” which are facts “concerning  the immediate parties—who did what, where, when, how, and with what motive or intent.”

The opinion notes that “research of legislative facts does not raise the same due process concerns as research of adjudicative facts.”

The ABA provides guidelines in the opinion for independent Internet factual research by judges. These guidelines are designed to help judges decide whether to independently investigate facts on the Internet.

They include (1) assessing whether additional information is necessary to decide the case, and (2) whether the judge is corroborating or discrediting facts, or filling in factual gaps in the record—and, where, in the case adjudicative facts, it would be improper to do so.

But there is still a possibility that a judge can misjudge—pun intended—a situation when it comes to verifying sources. For example, a third guideline states that when a judge is “seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case . . . [then] the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books.”

A fourth and final guideline looks at a judge seeking background information about a party or subject matter of a case.

The question with these guidelines is what if, while doing research unrelated to a case, a judge stumbles upon and reads something that is related? The research might start as a need for a better understanding, but the moment a judge obtains that information it can affect his or her judgment.

The ABA underscores that the key inquiry for the judge is “whether the information to be gathered is of factual consequence in determining the case.”  The opinion, which illustrates its points with hypothetical examples, continues, “If it is, it must be subject to testing through the adversary process.”

The opinion also equates general background learning on the Internet to “attending judicial seminars or reading books”, but warns that it can be of service “so long as there is reason to believe the source is reliable.”

And here lies another problem: the definition of “reliable.” To different individuals, it is all a matter of perspective.  To some prominent judges, Wikipedia has been a reliable source. See, e.g., Lubavitch-Chabad of Illinois Inc. v. Northwestern Un., 772 F.3d 443 (2014)(7th Cir. 2014)(available at http://bit.ly/1xu1bZt).

For judges, the dangers are not only on the World Wide Web, but even in the court’s computerized records systems, where judges are essentially urged to rely on their skill and capability in order to get the search right. The committee quotes Illinois Judicial Ethics Opinion 2016-02, which cautions judges that

the particular judge’s competence to navigate the computerized court records is essential . . . only facts which are ‘not subject to reasonable dispute’ are the proper subject of judicial notice. The judge must be confident that his or her review will lead to accurate information. For example, indexes of computerized court records are likely to contain individuals with the same name; is the inquiring judge capable of finding the appropriate records and accurately matching them to the party in question? Judges must be aware of their own skills and, more importantly, their limitations.  . . . [Emphasis is in the opinion.]

The bottom line is that judges are walking a fine line every time they are taking on a case. After all, it is very easy to make a mistake when it’s only one click away.

The opinion also notes that Model Rule 2.9(D) requires judges to make sure the court staff and officials do not perform improper independent investigations.

The ABA’s website explains that the ABA Standing Committee on Ethics and Professional Responsibility “periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.”

ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct.

Formal Opinion 478 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions,” or directly at the link above.  For more analysis, see Debra Cassens Weiss, “May judges search the internet for facts? ABA ethics opinion sees problems,” ABA Journal (Dec. 8)(available at http://bit.ly/2DpkC1a).

The author is a CPR Institute intern.