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Supplier diversity programs - What are your thoughts?

Supplier diversity programs have helped make marked improvements in the diversity of the attorneys who represent parties in court, arbitration, mediation, etc. Why do you think arbitrators and mediators are routinely overlooked or excluded from a company's supplier diversity program, such that those same criteria are not applied to the selection of neutrals?

Please provide your thoughts/comments below.

Comments (10)

Shira Scheindlin:

Unfortunately I think too many companies cede this important responsibility to their outside counsel and do not take personal responsibility for the selection of neutrals. This is something that should change. at the very least companies should instruct their outside counsel to consider diversity when selecting neutrals. I have been working on this issue and urging in house counsel to consider diversity every time they are involved in a mediation or arbitration. It is a matter of getting on the radar of busy executives but I think we are making progress!

Noah Hanft:

It's a great question. I believe that the primary reason is that, generally speaking,neutrals are retained by law firms and, as such, tend to fly under the radar screen at companies. I think (and hope) that this is gradually changing. At CPR, we have strongly encouraged our companies to focus on diversity in ADR and, just as they were able to press their law firms to provide diverse representation, encourage their law firms to retain diverse neutrals.

I wasn't aware that there was an exclusion process in effect. I wonder if it is intentional or based on a lack of information about which age, racial, sexual, or other category any of us fits into. Do we want that information to appear in our resume, anyway?

Anonymously:

I'm not sure why arbitrators and mediators have been largely excluded from corporate supplier diversity programs. Many universities and medical organizations have added binding arbitration to their internal grievance programs and I suspect their HR departments would be open to presentations from AAA's Regional VPs about diversifying their neutral selections.

BTW, I attended a seminar sponsored by AAA's Rhode Island Regional Office last month and was delighted to see the diversity in that office's workforce. Although, I think I may have been the only arbitrator of color among seminar participants. While I'm not privy to the data or internal discussions among AAA senior management on this subject I believe for the most part their desire to increase the number of female and minority neutrals is genuine. I also applaud the fact that you've asked for suggestions on how to make it happen.

I know from personal experience and research that Company's that establish an employee dispute resolution program confirm that any provider selected to arbitrate or mediate maintains a diverse panel of neutrals before selecting the provider for their program. I wonder whether companies with supplier diversity programs actually use as many diverse attorneys for both litigation where there is a right of appeal as they do for arbitration proceedings that are final.

There are basic questions about who makes the neutral selection but the very same diversity metrics that are applied to law firms could be applied to neutral selection - a simple annual survey asking if the firm had increased the diversity of selected neutrals year over year would alert firms to the requirement.

Many corporations have found diversity improves decision-making. It also improves judgment of a panel of neutrals. Corporations need to be made aware that neutral selection should be part of their diversity requirements.

In the end, it is implicit bias, unconscious impulses that sometimes contradict conscious commitment to equality and diversity that impedes improvement. You can hear it when someone says "we just need the best person for this case" -- that reflects an unconscious (and incorrect) assumption that a woman or other diverse neutral cannot be found with the required expertise or experience. There are many qualified people who are diverse and available; we just have to stop the default tendency to select the usual suspects.

David Hyland:

This isn't surprising. Most attorneys are trained to avoid risk, think about the substantive issue and, by habit, can become accustomed to choosing from a handful of very well known arbitrators. Obviously, ad hoc arbitration makes it far less likely to achieve diversity even if both parties to a dispute agree on its significance. In general, I think employee representatives care more about diversity, particularly where the client base is more diverse. Based on my own observations over a few decades in labor relations, a panel of arbitrators that reflects the diversity of the workforce is good for both parties because - for good or even bad reasons - it promotes a level of employee trust. Having said this, I cannot recall a case where a minority arbitrator could be said to have ruled in favor of a minority employee because of that status.

I suggest that the General Counsel, or another high official of the New York Bar Association, write an op-ed in the Wall Street Journal, or if not possible then seek to have a letter published there, that raises this important issue . Perhaps it would be read by corporate executives who are unaware of the problem but who would seek to remedy it in their own companies. We need to get behind the lawyers and directly address their clients.

Norman H. Rosen

Here's a simple answer: Implicit Bias

Margarita Echevarria:

I agree with Laura's perspective in regards to the use of diversity metrics and have been working to ensure for e.g. that the ABA's Resolution 13 with regard to law firms is extended to their selection of ADR professionals. I also learned recently that JAMS has added language to their agreements that emphasize the need for diversity in the selection of neutrals. These affirmative steps are driving this issue towards improvement but more work will be required to reach an equitable state.

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This page contains a single entry from the blog posted on July 9, 2018 10:52 AM.

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