December 1, 2019

Reflections on Diversity of ADR: Insights from the New York Arbitration Week

By Mohamed Sweify

This past decade has demonstrated that far from being an esoteric subject of interest to a few Alternative Dispute Resolution ("ADR") practitioners, Diversity and Inclusion ("DI") has become an articulated brand in the legal market in general and the practice of ADR in particular. I participated in the New York Arbitration Week, specifically, the panel on "Diversity Challenge: Reinventing the Landscape for Young IA Practitioners," organized by the New York International Arbitration Center ("NYIAC"). The panel offered new paths to a future of more diverse and inclusive ADR stakeholders. This essay summarizes and complements what I have learned from participating in the panel from my perspective as a diverse lawyer with a keen interest in ADR.

Diversity and Inclusion are relative concepts. Speaking of DI means speaking of the compositions of teams and institutions. Diversity should have a positive, not a repellent, meaning. Diversity should mean difference. This difference is the value diverse stakeholders bring to the institution or team.

Diversity of identity may relate to different facets including social, racial, gender, national, religious, age, or sexual identity or orientation. Institutions should move beyond speaking about diversity by genuinely embracing the added value that someone who is different might bring to the table. The movement towards this new concept has been conceptualized in different efforts by ADR practitioners in New York. Important to this equation is the Diversity and Inclusion Steering Committee (where I serve as a board member) which was presented at the "Diversity Challenge" event of NYIAC.

A step beyond diversity is "inclusion" which makes everyone at stake, including team members and clients, feel valued. Inclusion means giving space for people to create and invent. Creating space for people would reflect a genuine interest in having diverse stakeholders bring more of themselves to the work environment. Highly qualified teams do not exist by themselves, but they are carefully crafted by positioning different and diverse talents in a way that complements, not conflicts, with one another. However, inclusion is not self-created, it needs to be designed by both practitioners and institutions. Mutual steps must be taken to bridge the gap between institutions and practitioners on the one hand and experienced practitioners and new practitioners on the other hand.(1)

There has been some progress in enhancing diversity and inclusion within ADR. Different institutions constantly have worked to increase the awareness of the importance of DI in the legal field in general which has been translated into practical steps.(2) However, we are still far from calling all these efforts a success.

How do we get the ADR field to be more successful at DI? Whose responsibility is it: the system itself or the practitioners? Diversity is not about checking a box to include a group of few minorities nor making a group only for minorities. The first step of diversity is having diverse people of different cultures, experiences and backgrounds in different levels in the ADR practice. While this might seem easy, it requires an action plan. Who is in charge of this action and how do we execute the plan? These are the real questions. Different institutions are responsible for making this happen, including law schools, law firms, corporations, professional institutions and associations.

I will try to provide some answers followed by some recommendations from a practical perspective. These observations are drawn largely from my experience as a teaching fellow at Fordham Law School where I teach a tutorial course on the U.S. legal system and ADR practices. All of my students are international and come from diverse backgrounds, including legal, cultural, geographical, experience, gender, etc. During my encounters with these diverse students, I have noticed how fearful they are of the U.S. legal market. Students do not consider their diversity to be assets for the legal market. I tried to help them understand that being diverse is a true asset they bring to the market. However, my advice to these students seemed to be mere words that did not change their beliefs with regard to the importance of diversity.

I thought that this message needed to be delivered by someone with a high status in terms of age, experience, occupancy, knowledge, reputation, etc. I know of someone who truly believes in diversity and inclusion and can influence a greater pool of new practitioners. I contacted Professor John Feerick, the former dean of Fordham Law School and a leading ADR and constitutional law scholar in the U.S. Unsurprisingly, in spite of his busy schedule, Dean Feerick was very keen on making the time for these students. Choosing Dean Feerick was instrumental for different reasons. First, I thought of bridging the gap between the older generation, represented by Dean Feerick, and the new generation, represented by these diverse students. Second, hearing practical insights from someone who is experienced in the issues of diversity and inclusion would have its psychological positive impact upon the students.

Dean Feerick started his presentation by asking every student to present her/himself and their country of origin. He took notes of all the different nationalities and once it turned into him to present himself, he presented himself by saying "I am a son of an immigrant parents." This sentence had a magical impact on the students. It just made every student's dream come true. Dean Feerick tried to create a culture of belonging by introducing himself in this manner. In other words, his message was that I was diverse when I started my career and I managed to make it and so can you.

Dean Feerick then continued to provide his own insights on diversity and inclusion in the legal market. The end result was a group of diverse students who came to believe in diversity and are more confident of their capabilities that they can make a difference because they are different. Developing that sense of confidence for the new generation of practitioners helps the long term success for diversity and inclusion in the ADR field.

A couple of observations from my own experience follow:

First, the idea of diversity goes hand in hand with the idea of inclusion. They cannot be separated. Being diverse is not enough. Diverse people need to feel that they are genuinely included within the ADR field. There needs to be a culture of belonging.

Second, new practitioners should find a mentor who helps them clarify the vision and articulates the future plan that matches an appropriate opportunity. They should be exposed to different events and training experiences in the ADR field. Although the costs might be a challenge for new practitioners, volunteering might provide new practitioners with opportunities to meet and develop relationships with established practitioners.

Third, the responsibility is not only on the shoulders of the new practitioners. All parties at stake are responsible to help produce a diverse ADR field either in the academic institutions, law firms, corporations, etc. The diverse mindset brought by new practitioners must be met with a diverse mindset from the other side. Diversity needs to go both ways. Experienced practitioners should have an open mind to the idea of mentorship and should be willing to provide clear and honest advice to new practitioners.

Fourth, mentorship should be accompanied by sponsorship. Sometimes mentorship is not enough. New practitioners need real help from those who can offer this kind of help. Mature practitioners should develop the culture of helping new prominent practitioners find an appropriate path in the legal profession.

Fifth, new practitioners need to present themselves properly in the ADR market. They need to develop a content or a brand of their own which reflects the value that they offer. New practitioners should have their voices heard. For instance, they should try to write blogs, articles, law review articles, etc. They need to present themselves in the ADR market in a way that they can be an asset or a solution to a problem.

Sixth, new practitioners should seek strength in numbers and meet other diverse practitioners. They should get involved with the local bar associations representing minorities. Those minority bar associations may help in sponsoring some events or mentoring the new practitioners.

Seventh, new practitioners should not only seize the opportunities but create them for themselves. New practitioners should get out from their comfort zone and engage within the legal community. They should appropriately use their effective tools to engage in the legal community and continue to work until they accomplish their goals.

These are some practical insights on how to develop the sense of diversity and inclusion and to make use of them in the legal market. On a final note, New York is the perfect hub for developing diversity and inclusion in the legal field and the ADR field is a perfect forum for translating them into practice. I have eyewitnesses the efforts exerted by NYIAC and the American Arbitration Association (AAA/ICDR) and other institutions that provide practical examples of their belief in diversity and inclusion. These collective efforts would certainly contribute in achieving the goal of true diversity and inclusion within the ADR practices.

1. Although the real challenge is the dearth of data on DI, there is still more to be done to develop the concept of DI and ensure that institutions are working on allowing an intersectional lens towards DI.

2. The American Bar Association ("ABA") adopted Resolution 113 which urges all providers of legal services to create opportunities at all levels to diverse attorneys. According to ABA's National Lawyer Population Survey, 30% of the legal profession were women in 2007 which has arisen slightly to 35% in 2017. In private practice, roughly 48% of summer associates and 45% of associates are women but only 20% of partners and 18% of equity partners are women. For more details, see https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/

Mohamed Sweify is a bilingual dual qualified trained attorney in civil and common law jurisdictions and a Doctoral Candidate (S.J.D) at Fordham University School of Law. He has been involved in arbitration practice for years. Mohamed is also a teaching fellow of U.S. legal system and ADR practices and a lecturer of Islamic law at Fordham Law School. He can be reached at msweify@fordham.edu

Feedback about Arbitrators - What are your thoughts?

Arbitrators want feedback - what is the best way for institutions/counsel to give feedback to arbitrators? When should this occur? Would an online "Rate My Arbitrator" site be helpful or harmful to the profession?

Please provide your thoughts/comments below.

November 23, 2019

An Arbitrator's Firm Representing Past Arbitration Clients - What are your thoughts?

Should an arbitrator preclude his/her firm from representing parties that he/she has arbitrated cases before in the past as an arbitrator?

Please provide your thoughts/comments below?

Reading List on Race and Racism

The below reading list was designed to provide New York City Bar Association ADR Committee Members with opportunities to consider Diversity and Inclusion related information and to expand their thought or insight on issues relating to diversity and inclusion in dispute resolution.

Reading List on Race and Racism

The books noted below may be worth considering on the topic of race and racism. This list is not intended to be definitive or authoritative and Committee Members are encouraged to add to it.

Everyday Bias, Howard L. Ross.

Ross, though less well known than Daniel Kahneman, gives a condescended and easy to read explanation of why humans are subject to preconceptions (bias), how bias impacts our behavior and ways of counteracting their impact.

Between the World and Me, Ta-Nehisi Coates

This novel, written as a letter from a Black father to his son, does not simply explain racism but provides insight into what racism feels like from the perspective of the main character.

Stamped from the Beginning, The Definitive History of Racist Ideas in America; Ibram X. Kendi.

Kendi provides a compelling history of racism in America, explaining race as having been socially constructed to support structural racism. From his perspective, race is the child of racism.

Blood in the Water, Heather Ann Thompson.

A captivating narrative of the Attica Uprising, revealing underlying racial dynamics that predetermined its violent ending.

White Fragility, Why It's So Hard For White People to Talk About Racism, Robin DiAngelo.

DiAngelo explains power and hegemony as the animating force behind racism. From her perspective, racism is the collective prejudice of a group backed by legal authority and institutional control.

Respectfully,

The Diversity and Inclusion Subcommittee of the ADR Section of the NYC Bar Association

Robyn Weinstein, Chair
Anthony DiCaprio
Debra Hamilton
Naama Hod
Bernadette Jentsch
Michele Kern-Rappy
Steven Marshall
Carmen Rodriguez
Douglas White

November 10, 2019

Monster Energy Arbitration Award Vacated Over Potential Conflict - What are your thoughts?

Monster Energy Co.'s arbitration award against an Anheuser-Busch distribution company was reversed because the arbitrator failed to disclose a potential conflict of interest, the Ninth Circuit ruled. Monster Energy Co. v. City Beverages, LLC, No. 17-55813 (9th Cir. 2019)

The fact that the arbitrator was a co-owner of the arbitration firm specified in the agreement between Monster and Olympic Eagle Distributing, should have been disclosed, according to Judge Milan D. Smith Jr., who wrote the majority opinion.

What are your thoughts on this case?

Please provide your thoughts/comments below.

November 2, 2019

Insurance Disputes and Specialty Rules/Panels - What are your thoughts?

Are there unique issues/problems that you have encountered with arbitrating insurance coverage disputes? Should ADR institutions develop special rules (or panels) for such cases like those the ADR institutions have developed for construction and other specialty matters? Are there drawbacks to a proliferation of specialty panels?

Please provide your thoughts/comments below.

October 26, 2019

Negative Reactivity by Counsel and Parties - What are your thoughts?

How should a mediator manage "negative reactivity" by counsel and parties when conveying settlement proposals?

Please provide your thoughts/comments below.

Thank you to Harold Coleman of AAA Mediation.org for this week's question.

October 19, 2019

Negotiating in the caucus phase - What are your thoughts?

What unique challenges are triggered during a mediation when negotiating in the caucus phase?

Please provide your thoughts/comments below.

October 13, 2019

Information Gathered During a Mediation - What are your thoughts?

How important is it for mediators to summarize, review, and synthesize information
gathered at various stages of the mediation process?

Please provide your thoughts/comments below?

October 11, 2019

Neutral Notes - Fall 2019

See below, Neutral Notes - Fall 2019 by the Jacobs Center for Justice and Alternative Dispute Resolution:

Neutral Notes.pdf

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