AMERICAN BAR ASSOCIATION DIVERSITY & INCLUSION 360 COMMISSION REPORT TO THE HOUSE OF DELEGATES RESOLUTION RESOLVED, That the American Bar Association urges all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys; and FURTHER RESOLVED, That the American Bar Association urges clients to assist in the facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys; and FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys” means attorneys who are included within the ambit of Goal III of the American Bar Association.

Diverse Neutrals’ In Dispute Resolution and ABA 113’s Impact On Young Lawyers and Law Students

by Andrea Johnson | updated March 20, 2018

What do you automatically think of when you think of a lawyer? Aside from “Law & Order,” perhaps it’s a jury, judge, witnesses, or prosecutor. Despite the courtroom images associated with lawyers in news and modern media, dispute resolution in civil and commercial matters rarely ever involves stepping foot into a courtroom. The easy availability of out-of-court alternative dispute resolution (ADR) techniques such as mediation and arbitration is one reason few civil cases are actually tried.

 

Alternative Dispute Resolution and Challenges With Diversity

Data suggests approximately 97% of civil cases settle or are dismissed without a trial.[1] Going to trial is costly, and ADR often saves the time, frustration, and uncertainty that typically comes with going to court. Mediation not only offers flexibility in civil and commercial matters, but also control, as no settlement is reached without the parties’ consent. It is the primary form of ADR highlighted in this discussion.

Despite the high case volume and costs of litigation, which should make ADR a robust area for law students and young lawyers to pursue as a career, diverse attorneys face challenges accessing ADR opportunities. One reason for the challenges with diversity in ADR practice is the historical barrier to inclusion when accessing professional networks. For instance, the National Academy of Arbitrators is one of the largest communities of arbitrators in the United States. However, when it published its membership participation data between 2002 and 2006, fewer than 15% of members were women and fewer than 2.5% were African American.[2]

Similar challenges persist in mediation practice for “dispute neutrals,”who help disputing parties reach mutual understandings and communicate effectively. Most ADR practitioners are selected after serving as members of the judiciary or in senior levels of law firm practices, which are two forums where minorities remain underrepresented. With fewer minorities in the pipeline for these positions, fewer diverse neutrals are selected for opportunities in mediation practice. In light of these challenges, ABA Resolution 113[3] (ABA 113) and the Model Diversity Survey have been implemented to help hold law firms accountable if diverse lawyers are underrepresented in mediation practice, and in the legal profession overall.

 

Diverse Neutrals and Their Importance In Mediation

Within the ABA’s Goal III initiative,[4] the word “diverse” captures a range of racial and ethnic backgrounds, gender and sexual identities, and disability statuses. In addition, “diversity” must capture all marginalized groups and extend to age, geographic identity, religious beliefs, social mobility, and U.S. nationals or immigrants with uniquely distinct cultural experiences. As such, “diverse neutrals” are dispute neutrals with diverse backgrounds and experiences.

When diverse neutrals are sought for a mediation, their personal experiences with diversity are typically valued as critical to the perspectives they will consider in resolving a conflict. Including diverse neutrals recognizes that some personal experiences impact mediation outcomes in uniquely distinct ways. With international mediation and facilitation in peace processes, there is a growing awareness of cultural and religious sensitivities. In Europe, male and female mediators are required in many violent conflicts, with the premise that women and men consider the different roles (actors or victims) and gendered needs differently.[5]

In the United States, dispute neutrals in mediation are usually selected by counsel for the disputing parties or a third-party ADR provider organization. Common selection criteria in the U.S. generally includes ADR experience and training, subject matter expertise, history of settlements, fees, referrals, and in some instances, a practitioner’s professional affiliations. A diverse representation of experiences must also be prioritized when considering neutrality for mediators. Diverse lawyers serving as neutrals and representing people in ADR processes can build trust and help mediation teams consider cultural sensitivities. In some instances, diverse neutrals also help conflicting parties communicate more efficiently and become aware of the underlying interests the other party has.[6]

Footnotes
[1] See Contract Cases in Large Counties, NCJ 156664, BJS Web; see also Tort Cases in Large Counties, NCJ 153177, BJS Web.; see also, Civil Trial Cases and Verdicts in Large Counties, 2001, (last visited Mar. 8, 2018).
[2] Cynthia Alkon, Women Labor Arbitrators: Women Members of the National Academy of Arbitrators Speak About the Barriers of Entry into the Field, 6 Appalachian J.L. 195 (2006) More recent member lists have not been made publically available; See generally, Who We Are, Nat’l Acad. Arb. Admission, (last visited Feb. 16, 2018).
[3] The background of ABA Resolution 113 and the Model Diversity were discussed in Andrea R. Johnson’s Improving Diversity in the Legal Profession Through ABA Resolution 113, Am. Bar Ass’n: The Innovator (Winter 2016).
[4] Goal III, ABA Commission on Racial and Ethnic Diversity in the Profession, (last visited Mar. 8, 2018).
[5] Simon A. Mason, Mediation Support Project Center for Security Studies, ETH Zurich, (last visited Mar. 8, 2018).
[6] For a broader discussion on the ABA selection trilogy and barriers to opportunity for diverse neutrals, see, Marvin E. Johnson and Maria R. Volpe, Color of Money, ABA Dispute Resolution Magazine (2017).

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