Diversity in Mediation

by Hon. Ariel E. Belen (Ret.)

Mediation, as a form of dispute resolution, relies heavily on the mediator’s ability to recognize, comprehend and address the emotions and social cues of the parties involved. Without this understanding, there lies the potential for irrationality, miscommunication and perhaps intractability.

Imagine a mediation involving a party whose native language is not English, and whose cultural reference is derived from a place other than the U.S. Imagine now the American mediator’s difficultly with recognizing, comprehending and addressing the needs and emotions of that foreign party, thus creating heightened potential for intractability. This pitfall is largely due to a lack of diversity in the field of mediation.

A recent report by Forbes Insights found that “Diversity is a key driver of innovation and is a critical component in being successful on a global scale.”[1] ADR practitioners in the U.S. generally draw from the Judiciary and law practicing ranks, which by current status is significantly underrepresented by minorities. As we follow this trend to the mediation table, we find that this lack of minority representation creates fundamental communication challenges among diverse disputing parties.

Further still, consider an international mediation table where multiple cultures are represented and local laws and regulations preside. Here, a cross-cultural understanding and awareness becomes a paramount skill for conducting business overseas. “[E]xpanding overseas has its own special challenges. Laws and regulations vary from region to region, and there are language and cultural barriers that can create unanticipated problems or challenges. Which is why organizations have found that the best way to ensure their continued success on a global scale is by having a diverse and inclusive workforce." [2]

Notwithstanding the lack of diversity in mediation practice, there is a lack of demand for minority mediators. That is not to say there isn’t a need for, but less demand based on the neutral (mediator) selection process. This inequity in supply and demand is due to a selection process where the parties (attorneys) demonstrate an inclination to select an individual with whom they are professionally familiar, inadvertently creating a closed-network of non-minority practitioners. This phenomenon might be described as “supply side and demand side obstacles.”

As our mediation tables and global markets become increasing more diverse, we are wise to recognize and understand not only the need for more diversity, but the inherent benefits of diversifying the field.