How ADR Itself Increases Diversity

Image ADR Increases Diversity
Posted on: Thu, 02/17/2022

By: Svetlana Gitman, Esq., Vice President, AAA® Commercial Division

Adopting a diversity pledge (for example, the CEO Action for Diversity & Inclusion) is not the only way that companies and organizations can create a diverse workplace. Utilizing alternative dispute resolution (ADR) to handle disputes provides an opportunity for parties to give real meaning to their pledge to increase diversity: ADR gives parties control to select diverse decision-makers, which parties cannot do in litigation

Party representatives, ADR providers, and arbitrators also can increase diversity in ADR.

What can parties do?

  • Request that party representatives advocate for selecting a diverse arbitrator or mediator.
  • Hire counsel that share the commitment to diversity.
  • Be proactive and involved in the panelist selection process.

What can party representatives do?

  • Make a concerted effort to choose diverse panelists rather than relying on those that the individual counsel or firm has used for years if they are not diverse.
  • With the widespread use of virtual hearings, party representatives can select panelists from all over the world; if a diverse panelist is not available locally, look more broadly geographically. 
  • Give younger diverse associates an opportunity to play active roles in the arbitration.

What can arbitrators do?

  • When appointed by one party and given the opportunity to decide on the chair for the panel, consider a diverse chair. 
  • Be willing and available to speak about your experience and path with diverse arbitrators who are interested in the field. 
  • Help recruit diverse arbitrators. This can bolster ADR’s reputation and increase its prevalence if arbitrators more accurately reflect society’s diversity.

What can ADR providers do?

  • Increase the number of diverse panelists on the roster.
  • Require a significant percentage of diverse panelists provided on each list for a case. 
  • Consider appointing diverse panelists when parties cannot agree on a panelist or the chair.
  • Support and promote new diverse panelists by providing opportunities to serve on cases in instances where the institution/provider is in a position to administratively appoint a panelist. 
  • Involve diverse panelists in outreach events and provide opportunities for diverse panelists to serve on committees.

What can managing partners, supervisors, and mentors do?

  • Encourage and support diverse attorneys interested in becoming arbitrators and mediators. Diversity in ADR will increase only with more diverse attorneys stepping up, training, and ultimately serving as arbitrators and mediators. Parties, party representatives, and panels cannot choose diverse panelists if they are not available. Similarly, ADR institutions cannot add and offer diverse panelists if they do not have them. 
  • Employers need to support and accommodate diverse attorneys by encouraging them to apply, train, and work out a compensation rate that will make them competitive in the market even though it may be lower than the firm’s hourly rate. 

What can we all do?

  • Learn to be aware of bias and techniques for addressing it. We can all benefit from more education about implicit bias, confirmation bias, and unconscious bias.
  • In order for diversity efforts to succeed, the non-diverse majority must take a leadership role; otherwise, real change will not happen.  


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