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JAMS ADR Insights

Diversity, Equity and Inclusion Mediation Arbitration

Women’s History Month: Women in Law and ADR

Celebrating Our Progress and Committing to Do More

As a female litigator, a judge for over two decades and now a mediator, arbitrator, special master and neutral evaluator at JAMS, I look back with pride on the advances we have made, while being aware of the need for more progress.   When I began law school, there were only two women on the Yale Law faculty; this number dipped to zero before I graduated in 1982.  I had the great honor of clerking for the first woman judge on the U.S. District Court for the Northern District of California, Marilyn Hall Patel, who would later become the first female chief judge of the district, but it would be years before another woman joined her on what is now a court with many female and diverse judges.  Meanwhile, the first woman joined JAMS the same year I graduated, a few years after it was founded.   About a century before that, Clara Foltz became the first woman to join the bar in California. We all owe a debt of gratitude to these and the many other pioneering women judges, mediators and attorneys who paved the way.

While I was on the bench from 1998 until a year and a half ago, we had many excellent women attorneys appear in front of us, but there were still a number of cases in which only male lawyers appeared, especially as lead counsel.   Women still face barriers, too often from unconscious bias, which can require them to try to walk the fine line between being perceived as likeable but then somehow less competent or as capable but unlikeable.   While on the bench, it was my honor to be able to launch the Women Attorneys Advocacy Project with the support of the court and a group of outstanding female attorneys who volunteered their time, putting on programs focused on overcoming obstacles to and maximizing opportunities for women attorneys’ success.

In the alternative dispute resolution (ADR) field, during too much of my earlier career, women serving as mediators and arbitrators were the exception.  Happily, dramatic gains have been made, but there is still room for improvement.  JAMS has prioritized pursuing increased diversity among ADR practitioners, as it recognizes the benefits of having a diverse panel of neutrals. To further their commitment to diversity, equity and inclusion, JAMS became the arbitral institution to create an inclusion clause for arbitration contracts that encourages the consideration and appointment of diverse neutrals.  The parties and law firms that choose neutrals also have an important role to play in considering and hiring diverse neutrals.  Fortunately, many clients who hire ADR neutrals have recognized the benefits of diversity for better decision-making and results, as demonstrated by experience and by social science research.  As mediators, for example, we can draw on our own life experiences to empathize with different points of view and to craft solutions that might not be readily apparent to the parties.

Progress, of course, does not happen automatically; it takes the collective efforts of persons of all demographics. Old issues can stubbornly persist, even as new issues arise that require our attention and support.    For example, in this era of working remotely, the responsibility of taking care of children at home and supporting their remote learning can sometimes fall unevenly on women attorneys, although fortunately newer generations are sharing the work more equally.  Support for flexible schedules, child care and time off without penalizing career progress, and mentorship and sponsorship, are even more important to retaining and benefiting from women attorneys’ contributions.   Mediators and arbitrators need to be sensitive to participants’ schedules and should allow for breaks to accommodate participants’ needs during telephonic and videoconference hearings.   At the same time, one unexpected benefit I’ve been pleased to see and hear is the recognition of our shared humanity; for example, when we watch a participant cradling a child on her lap, or we hear youthful, excited shouts and laughter, or we see a beloved pet.

As we reflect on women’s history this month, we must use the inspiration of the progress of the past, as well as the lessons learned from setbacks along the way, to continue to make our way forward. 

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