ENDING GENDER AND MINORITY BIAS IN ADR SELECTION THROUGH EDUCATION

By: Stephanie J. Ball, JD
November, 2017

For too long, countless articles, reports, and surveys have been written and discussed addressing the inequality of women and other underrepresented groups of attorneys in Alternative Dispute Resolution (ADR). Although sincere, these reports have failed to move the needle in the continued disparity of gender and racial imbalance in the selection of neutrals in high-stakes, complex, commercial ADR cases.

In July of 2017, the Commercial & Federal Litigation Section of the New York State Bar Association published a report prepared by the Section’s Task Force on Women’s Initiatives: IF NOT NOW, WHEN? Achieving Equality for Women Attorneys in the Courtroom and in ADR (New York State Bar Association, 2017). An elite group of female alumnae section chairs formed an ad hoc task force to examine the apparent deficiency of women and other underrepresented groups among those who are selected as arbitrators and mediators in complex commercial arbitrations and mediations.

Women and Minorities in ADR

In a growing global economy, clients are more diverse and representative of the world we inhabit. Lawyers must be equipped to understand and recognize cultural differences and the ways in which our stereotypes shape judgments about the abilities and potential of diverse social groups. ADR hearing officers should represent the diverse world we serve. However, the statistics are bleak. Data from a 2014 ABA Dispute Resolution Section survey indicated that for cases with between one and ten million dollars at issue, 82% of neutrals and 89% of arbitrators were men (Brown & Schneider, 2014). The American Lawyer cited another survey that estimated that women arbitrators were involved in just 4% of cases involving one billion dollars or more (Simmons, 2016). Globally the numbers continue to be discouraging. The institute for Conflict Prevention and Resolution (CPR) reported that of more than 550 neutrals worldwide, about 15% are women and 14% are minorities (Hancock, 2016).

Ensuring All Attorneys Receive Diversity, Inclusion, and Elimination of Bias Education

Continuing Legal Education (CLE) is a key component in creating change and awareness regarding diversity and inclusion in the legal profession. CLE programs work toward eliminating bias and advocating for diversity and inclusion through education. Education is an important tool to raise awareness of both explicit and implicit bias within the legal profession and to educate and empower the legal industry leaders who can effect change. All legal organizations should be encouraged to incorporate into their educational curriculums CLE programs that teach these principles.

In February 2016, the American Bar Association (ABA) Adopted Resolution 107, which (in part):

… encourages all state, territorial and trial courts, bar associations and other licensing and regulatory authorities, that have mandatory or minimum continuing legal education requirements (MCLE) to modify their rules to:  1) include as a separate credit programs regarding diversity and inclusion in the legal profession of all persons regardless of race, ethnicity, gender, sexual orientation, gender identity, or disabilities, and programs regarding the elimination of bias.

Diversity and inclusion CLE programs will help move the needle to eliminate explicit and implicit bias within our profession. There is no more important time to educate our legal professionals than now.

Currently, among the states requiring Mandatory Continuing Legal Education, only California and Minnesota have adopted a stand-alone diversity and inclusion CLE requirement. Effective on January 1, 2018, New York will have a new CLE category for credit of Diversity, Inclusion, and Elimination of Bias.

“Everyone’s A Little Bit Racist”

In 2003, Avenue Q, a musical about a group of puppets who resemble the Sesame Street characters, opened on Broadway to rave reviews. The play was so widely successful that it beat out the lavish multi-million dollar production of Wicked to win the 2004 Tony Award for Best Musical. Today it still has audiences laughing with its politically incorrect, off-color humor.

One song begins with the character Kate telling Princeton he can’t go to special monster school because they don’t want people like him. They both admit they are a little bit racist and sing the hit song:

“Everyone’s a Little Bit Racist.”

I think everyone’s a little bit racist sometimes
Doesn’t mean we go around committing hate crimes
Look around you and you will find
No one’s really color blind
Maybe it’s a fact we all should face
Everyone makes judgment based on race

During the song, other diverse cast members join the chorus to tell a string of ethnic jokes that stereotype gender and race. They all agree and go on to sing:

Ethnic jokes might be uncouth,
But you laugh because
They’re based on truth. (Frazetta, 2009)

The question becomes: What truth are they based on?

Are We All Bigots?

Mahzarin R. Banaji and Anthony G. Greenwald (2013), psychologists, professors and authors, write about the hidden biases that we all carry throughout our lives. These hidden biases are created by our perceptions and attitudes about race, ethnicity, color, cultural differences, gender identification, nationality, disability, sexual orientation, gender identity and expression, religion, geography, and age. Banaji and Greenwald explain in Blindspot what hidden biases are:

They are—for a lack of a better term—bits of knowledge about social groups. These bits of knowledge are stored in our brains because we encounter them so frequently in our cultural environments. Once lodged in our minds, hidden biases can influence our behavior toward members of particular social groups, but we remain oblivious to their influence. (p. xii)

Just like the puppets in Avenue Q, we all use implicit stereotyping subconsciously, without meaning to. Kurt VanLehn, a computer scientist at Arizona State University, coined the term mind bugs to describe systematic errors that young children make when learning arithmetic. In Blindspot, Banaji and Greenwald use the term mindbugs to refer to a broad category of cognitive and social errors that are observed in children and adults, and they assume have a basis in our evolutionary past as well as our cultural and individual histories (Banaji & Greenwald, 2013).

Education as a Chrysalis for Change

All state CLE Boards must assume a heavy responsibility to act as the cradle for the developing chrysalis to provide a facilitative base to change our mindbugs. The inclusion of a mandatory stand-alone CLE credit in Diversity, Inclusion, and Elimination of Bias will engender and encourage creative education to defeating our hidden biases. If we make no effort to overcome the stereotypes that shape our behavior and influence our decisions, we bare the shame of perpetuating a legal profession that is already plagued with a reputation of gender and minority disparity in selection of mediators and arbitrators in all types of ADR cases – particularly high-stakes, complex, commercial cases.

If Not Now, When?

________________________________________________________


Stephanie J. Ball, JD is the Director of Continuing Legal Education for NAM (National Arbitration and Mediation). She has 20 years of experience providing Continuing Legal Education, Professional Development, and Diversity and Inclusion programs to Private Law Firms, Bar Associations, Public and Government Agencies, and Corporate and Business Organizations. Teaching attorneys what they don’t learn in law school to be successful in the practice and business of law. In 2013 she was the recipient of the Association for Continuing Legal Education (ACLEA) Award of Outstanding Achievement for Best CLE Program. You can contact Stephanie at sball@namadr.com.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.

References:

Banaji, M. R., & Greenwald, A. G. (2013).
Blindspot: Hidden biases of good people. New York: Random House.

Brown, G. V., & Schneider, A. K. (2014, Jan. 31).
Gender differences in dispute resolution practice: Report on the ABA section of dispute resolution practice snapshot survey (Marquette Law School Legal Studies Paper No. 14-04).
Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2390278

Frazetta, J. (2009, August 7).
Avenue Q—Everybody’s just a little bit racist, Broadway cast [Video file].
Retrieved from https://www.youtube.com/watch?v=RovF1zsDoe

Hancock, B. (2016, October 5).
ADR business wakes up to glaring deficit of diversity. Law.com.
Retrieved from http://www.law.com/sites/almstaff/2016/10/05/adr-business-wakes-up-to-glaring-deficit-of-diversity/

New York State Bar Association, Commercial & Federal Litigation Section Task Force on Women’s Initiatives. (2017, July). If not now, when? Achieving equality for women attorneys in the courtroom and in ADR.
Retrieved from http://www.nysba.org/WomensTaskForceReport/

Simmons, C. (2016, October 10). Where are the women and minorities in global dispute resolution? The American Lawyer.
Retrieved from http://www.law.com/americanlawyer/almID/1202769481566/

©2017. Ending Gender and Minority Bias in ADR Selection through Education, published in Just Resolutions, November 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.