I recently read an excellent article called “Why Bringing Diversity to ADR is a Necessity” by David H. Burt and Laura A. Kaster, which appeared in the October 2013 issue of the Association of Corporate Counsel’s publication, ACC Docket. This article was of particular interest to me since I have been a mediator with BAY Mediation in Atlanta, GA since September 2013 and I am a woman of color. It has not been lost on me that in my practice locality mediators who are diverse are few and far between and most cases are still mediated by the “tried and true” bunch of mediators at the few mediation outfits in town.
This article drives home the point that just as corporate retention of outside counsel has required a deliberate and conscious push by corporations to ensure outside counsel reflect the diverse customer base of many corporations in this country, neutrals who are selected to mediate such disputes should likewise be reflective of the diverse population of this country. The article discusses some ways in which this inequity can be addressed. Traditionally, the way in which mediators/arbitrators have been selected has been left up to the outside counsel handling the litigation file, which may be responsible for perpetuating homogeneity in the selection process. The article tackles three ways in which this may be addressed. First, ADR providers should increase their neutral panels by recruiting more qualified women, racial minorities, and other diverse neutrals to serve on their panels. Second, neutrals should be identified based upon the diversity characteristics they can bring to the table. Third, private law firms should enhance the value associated with their partners and associates serving as neutrals/arbitrators so that more private practitioners embrace ADR as a possible career avenue.
In the context of employment cases, the value of diversity in the neutral/arbitrator cannot be overstated since often the thrust of the employee’s claim is centered on claims of unfair treatment based on their protected status. So, a neutral who may share that same protected status with the claimant/litigant may serve to advance the prospect of resolution. While there is no one solution which will fit all to address this issue, outside counsel can make a conscious effort and commitment to seek out and utilize diverse neutrals/arbitrators to resolve their matters, as appropriate, all the while meeting the diversity initiatives of the corporate interests they serve.
Anandhi S. Rajan
Swift, Currie, McGhee & Hiers, LLP
The Peachtree
Suite 300
1355 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 874-8800