Our vice president and CMO Mark Smalls recently wrote an article for the American Lawyer Media publication The Recorder in which he called attention to a critical issue for our industry: that it’s time to increase our focus on diversity in ADR.
Corporate law departments and law firms have a bit of a head start on ADR when it comes to diversity. While putting their own diversity programs in place, many in-house counsel have also demanded that the law firms they hire demonstrate similar efforts. They do this not only out of responsibility to the wider community, but also because diversity just makes good business sense.
As Mark writes: “Over the past couple of decades there has been a general acceptance that diversity yields real benefits to the legal process, whether working out the details of a business deal in an emerging market, or ensuring that a high-stakes employment case doesn’t escalate into a an unnecessarily expensive (or embarrassing) debacle. The ability to tap into a variety of perspectives based on gender, age, ethnicity, or sexual orientation helps ensure strategies and solutions reflect the increasingly diverse world we live in."
Since ADR is all about providing new perspectives to resolve disputes, one would think our community would be fertile ground for diversity to take root. Unfortunately, that hasn’t happened. There are several reasons why this is the case: the neutral selection process, identification of available candidates, and the role of ADR in the legal system in general.
In terms of selection, the problem stems from the fact that attorneys are typically most comfortable recommending to clients a mediator or arbitrator they have previously worked with. This leads to a short list of names, and leaves little room for new names, even if those new people are equally competent.
Then there is the issue of supply. To become a successful neutral, attorneys need to first realize that ADR is a valid career option and then build a resume to get them noticed by providers. Ideal candidates are typically either judges with a strong civil court background, or senior partners with ADR experience at prominent law firms. And, despite diversity efforts in the past two decades, women and minorities are still vastly unrepresented in this potential talent pool.
And, finally, there is the role of ADR in the legal system as a whole. Even though its benefits are becoming much more widely known, ADR is still often an afterthought for counsel. Consequently there has been less legal industry attention to pushing for diversity as it relates to ADR.
All of this is not to say that ADR isn’t taking steps forward on the issue of diversity. As Mark says, doors have opened wider in law firms and within the judiciary system and there are more women and minorities with the subject matter expertise and legal knowledge to be effective mediators or arbitrators. But more work is needed, and it must come from all stakeholders– in-house counsel, outside counsel and ADR. As Mark writes: “Corporate clients that encourage their outside counsel to focus more on diversity can extend this “gentle push” to ADR. Law firms that want to showcase their belief in the power of diversity can do so by seeking out and utilizing qualified neutrals outside of their typical network. ADR providers can be more vigilant about identifying high-potential recruits and then having them mentored by successful neutrals.”
As with the rest of the legal profession, diversity in ADR will only grow if we talk about it, and then take concrete action.
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