Scales of justice

We are no longer debating whether diversity is good for the legal profession and for ADR: we know this to be true from many studies. Susan Ahern and Alison Walker analyse the numbers of women arbitrators and mediators that have been appointed in recent years.

The appointment of Ms Justice Susan Denham to the position of Chief Justice in 2011 was a defining moment for diversity in Irish legal history. US Supreme Court Justice Ruth Bader Ginsburg often fondly recalled how President Jimmy Carter observed of the United States’ Federal Court judges: “They all look like me … That’s not the way the great United States looks. I want my judges to reflect the greatness of the people of the United States in all their diversity. So, I will appoint members of minority groups and women…”

It is now clear that we are no longer debating why diversity is good for the legal profession and for alternative dispute resolution (ADR). We know this to be true from many studies that show us the changing face of legal practice and the marketplace today.

Diversity strategies to include women, people of colour, members of the LGBTQ community, and disabled people must now be implemented and put into practice to achieve equality in ADR appointments.

This article will concentrate in particular on the numbers of women arbitrators and mediators being appointed in recent years, according to the data, and what we can do to further these aims.

It is because of the work and determination of organisations like Arbitral Women and arbitral institutions like the ICC, LCIA, ICDR and SCC – many of which are now led by women – that these panels reflect increased gender equality.

Glacial pace

Diversity is important in ADR for a number of reasons: improved decision-making, financial incentive, and representation of the wider community.

We are currently reaching gender parity in ADR representation at a glacial pace. This is unacceptable in these times, and we must act to change this. The World Economic Forum Global Gender Gap Report 2020 found that it will take 99 years to close the overall gender-parity gap globally, and 257 years to close the gap in economic participation and opportunity.

The 2019 CEDR report, Improving Diversity in Commercial Mediation, shows that there are just 34% of women working in commercial mediation, compared with 66% of men. And just 25% of mediators are under 50 years of age.

Diverse arbitral panels show improved quality of decision-making, as different perspectives introduce nuances and ensure that group-think is not a factor, as panellists can cover each other’s blind spots.

There is also a financial incentive in promoting diversity and inclusion. The 2020 McKinsey & Company report, Diversity Wins: How Inclusion Matters, found that companies with more than 30% of women executives were more likely to outperform companies where this percentage was lower, or where there were no women executives at all.

There was found to be a higher likelihood of profitability outperformance difference with ethnicity than with gender. The 2018 Queen Mary International Arbitration Survey shows that clients are increasingly seeking diverse ADR candidates.

The legal teams, tribunals, and ADR practitioners being appointed need to represent the community today, and the parties whose decisions they are resolving. The ICCA report on gender diversity discusses how arbitrators are stepping into the shoes of judges, and poses the question of whether they, too, should be subject to legitimacy requirements, such as the need to be representative of the various stakeholders affected by their decisions.

Taking the pledge

Each of us can make a difference. There are practices that we can put in motion to increase diversity in ADR for the benefit of our clients, and the ADR and legal community, including:

• ‘Taking the pledge’,
• Addressing the ‘leaky pipeline’, and
• Unconscious bias training.

The Equal Representation in Arbitration (ERA) Pledge seeks to have more women appointed to arbitral seats on an equal-opportunity basis and to strive for fair representation. The goal is to achieve gender parity in arbitration. The pledge has close to 5,000 signatories worldwide from major international law firms, arbitral institutions, corporations, and individuals. Finding and considering qualified diverse arbitral candidates is incredibly important.

Dame Linda Dobbs, the first person of colour to be appointed as a judge in the courts of England and Wales, said in Counsel magazine in June 2019: “Sadly, people are lazy. Instead of actively looking around to see who else they could recruit, … they tend to choose the usual suspects. [We should be] pulling in people who have not been pulled in before and getting them engaged. Role models [are] what we are, reluctantly or not, and it’s really important to not just have the ‘same old’ … there are people actively involved on the ground who should be spotted and used.”

Prof Lucy Reed challenges the arbitration community to take just five minutes longer when coming up with a list of potential ADR candidates to think of some suitably experienced women.

When searching for diverse names, there is an abundance of networks that you can contact that can provide a list of talented diverse arbitrators and mediators, such as Arbitration Ireland, the Chartered Institute of Arbitrators (CiArb), Arbitral Women, the Bar of Ireland, or the Law Society.

Clients lose out when they are not afforded the opportunity to benefit from the valuable experience of diverse ADR practitioners. Clients need to lead the process, and it is more important than ever to companies and organisations that diversity initiatives are being followed.

Commitment to providing lists with a fair representation of diverse ADR candidates is imperative. Arbitral institutes such as the International Centre for Dispute Resolution (ICDR) have committed to ensuring that 20% of any list of ADR practitioners provided to parties will be diverse, and they have incorporated an algorithmic tool in its case-management system to support this.

We need to commit to this target ourselves when compiling diverse and gender-balanced lists of ADR candidates for clients and, ultimately, this percentage should continue to rise and soon reach 50%.

Leaky pipeline

The ‘leaky pipeline’ refers to the barriers that women encounter in their legal careers that compel many to leave after just the first few years of qualifying – and this fall-out continues up to partner level. Solicitor Suzanne Carthy has written (Gazette, May and June 2018) that analysis tells us women are only half as likely as men to make partner in Ireland.

Many women exit the market when it nears the time of making partner or becoming senior counsel. There are several reasons for this, such as lack of flexible work options, and work culture.

Having more women and persons of minority working in law firms will naturally increase diversity and inclusion within the business, as diverse lawyers attract diverse clients, and will be more inclined to recommend diverse ADR practitioners.

The Law Society encourages firms to sign up to theGender Equality, Diversity and Inclusion Charter. There are financial benefits to being part of this charter and to actively pursuing diversity policies, as clients are increasingly seeking diverse legal representatives who reflect their company’s values and visions, and the culture that they nurture in their business.

Where firms do not reflect their customers’ values, they will lose their business advantage. Clients want diversity, and this needs to be catered for.

The Mansfield Rule is a global initiative signed by 117 major law firms to promote equality of opportunity at law firms, including in the hiring of diverse outside counsel and ADR practitioners. Women and diverse lawyers should also be invited to speak at conferences, as this acts as a platform to increase the visibility of these candidates, which in turn leads to appointments of arbitrators, mediators and counsel.

Unconscious bias training

A major draw to arbitration and ADR is the opportunity to choose your arbitrator or mediator. We need to recognise how our unconscious bias can affect our decision-making and take steps to prevent this. The ‘halo effect’ has a tremendous impact on clients, counsel and solicitors in the ADR process, and means that when a candidate is recommended to us, their flaws seem unnoticeable, and this writes off any other potential candidates.

Word of mouth is a common source of data, and while it may be easy to go with the usual suspects or the recommended individual, it may not always be in the best interest of the client. A little further research may be necessary to find the most suitable person for the task, and legal teams have an important role to play in the selection of mediators and arbitrators.

The Harvard Implicit Association Test helps to identify our unconscious bias towards certain people. The results often surprise people when their hidden biases are uncovered. Training initiatives such as the Arbitral Women Diversity Toolkit help us recognise and counteract bias when it rears its ugly head. It is very effective when these training initiatives are led by senior, white, male figures, as they are often the gatekeepers. The good work being done by men who are striving for equality on behalf of women and minorities also needs to be acknowledged.

Arbitrator Lucy Greenwood recommends that, when selecting an arbitrator, we should start with a list of criteria or objectives, rather than a list of names. We should look to databases of arbitrators rather than individual recommendations, as this will give a greater pool of arbitrators from which to choose.

This will lead to greater transparency and access to information, which will result in avoiding human bias or motive. She also proposes that lawyers advising clients on arbitrator candidates could consider using standardised CVs that remove identifying information, such as names.

Diversity inclusion language can be added to the suite of options for a party putting together an arbitration clause. The JAMS or the CPR diversity clauses could be inserted into contracts allowing for dispute resolution. This language can ensure that, when a dispute arises and an arbitrator is to be selected, this will be done with a view to selecting a diverse arbitrator or panel.

Strategic thinking

Forward-thinking companies and firms are committed to their long-term strategic plans, which often involve promotion of equality, diversity, and inclusion, as this is essential for the future growth and development of a company. These companies and firms will continue with this aim – even now during the pandemic.

In business, there will always be fires to put out and urgent challenges to address, but the business must stay committed to its long-term strategy. This should equally apply to litigation and, more properly, to the ADR options that a business may become involved in.

We need diversity now more than ever. New and differing ideas are necessary during these times to come up with new innovations and to succeed in an increasingly competitive commercial environment. The legal community needs to commit to the increased selection of diverse practitioners, as the ADR process will lose credibility where the ADR providers do not reflect the diverse backgrounds of clients and companies.

Without making major changes now, it will be 2277 before the global gender gap in economic participation and opportunity is closed. This is a glacial pace. Intervention is needed now. Arbitral institutions have committed to compiling lists with a fair representation of both diverse and female ADR practitioners.

As lawyers, it is now time to compile diverse and gender-balanced lists in our practices when considering recommending arbitrators and mediators, in order to reach gender parity in arbitration sooner. 

LOOK IT UP

• Arbitral Women Diversity Toolkit
• Carthy, Suzanne, ‘Hidden figures‘ (Law Society Gazette, May 2018, p38) and ‘Mind the gap‘ (Gazette, June 2018, p36)
• CEDR, Improving Diversity in Commercial Mediation: Executive Summary Report (May 2019)
• Counsel magazine (June 2019)
• CPR Diversity Commitment Clause
• Equal Representation in Arbitration (ERA) Pledge
• Harvard Implicit Association Test
• International Council for Commercial Arbitration, Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings(ICCA Reports No 8, 2020)
• JAMS Diversity and Inclusion Arbitration Clause
• Law Society of Ireland, Gender Equality, Diversity and Inclusion Charter
• Mansfield Rule
• McKinsey & Company, Diversity Wins: How Inclusion Matters(May 2020)
• School of International Arbitration, Queen Mary University (2018), International Arbitration Survey: The Evolution of International Arbitration
• World Economic Forum, Global Gender Gap Report 2020

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