NEW MEXICO WOMEN'S BAR ASSOCIATION
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From the ABA Journal Perspectives, https://www.americanbar.org/groups/women/publications/perspectives/2018/winter/where-are-women-arbitrators-battle-diversify-adr.html
Where Are the Women Arbitrators?
The Battle to Diversify ADR
Vol. 26 No. 1
By Hannah Hayes
Hannah Hayes is a Chicago-area freelance writer.
When Laura Kaster was a young lawyer in 1975, she was accustomed to being the only woman in the room. But by the time she left Jenner & Block in Chicago in 1997 to work at AT&T Corporation, there were many women partners. In 2007, she founded her Princeton, New Jersey, alternative dispute resolution (ADR) practice and immediately noticed something. “I was surprised how white and male [the field] was—it was like when I first started—it was quite shocking to me.”
Today, most corporations, law firms, and agencies recognize diversity as a desirable component of a successful business as research-based science has affirmed the positive outcomes in decision making and innovation. While hard-fought efforts to diversify the legal profession continue, progress has been made. Yet women in ADR say that issues other areas of law confronted long ago—such as limited opportunities, “old boy” networks, and the failure to track diversity numbers—continue to impact women and people of color.
“We do know that women have been nearly half the class of lawyers for at least the last 25 years, and they represent 33 percent of federal judges and 25 percent of state judiciaries,” says Kaster, who writes and speaks widely about diversity in ADR. “But in arbitration, the statistics are very consistently under 15 percent when it comes to women who are arbitrating in significant commercial matters.”
According to the ABA Commission on Women in the Profession, women make up 45 percent of associates in law firms and roughly 25 percent of partners. But a 2012 survey of 743 arbitrators and mediators by the ABA Women in Dispute Resolution (WIDR) Committee found that women represented only 18 percent of arbitrators. Women were clustered in family, labor, consumer, and smaller claims, while men dominated construction, intellectual property, and complex commercial matters. The survey also found women were not adequately represented on panels. While 66 percent of those surveyed had participated in panels made up of three men, none had been involved in a three-woman panel.
“We all knew we were underrepresented,” says Ruth Glick, a San Francisco–based independent arbitrator and mediator and a former chair of the ABA Section of Dispute Resolution who founded the WIDR Committee. Glick has been in mediation and arbitration since 1987—even prior to becoming a lawyer. “As a woman, I was always a minority,” she recalls. “I used to count the number of men and women arbitrators listed by the providers and calculate the percentages of women, which remained constant at 10 to 13 percent.”
Tracking and Transparency
Tracking and Transparency
Unlike law firms and corporations that track and publish diversity statistics, the private and confidential nature of arbitration makes it difficult to quantify. A 2017 New York State Bar Association survey of two ADR providers puts the range of women arbitrators at 15 to 25 percent.
“The opaque nature of the appointment process disproportionately penalizes women seeking to develop their practice as international arbitrators,” says Lucy Greenwood, a United Kingdom–based independent arbitrator who has studied gender data in international arbitration.
Parties involved in ADR generally agree on an individual or a panel of neutrals to resolve a dispute. However, the professionals who may make a recommendation typically stick to seasoned or well-known neutrals, and many of these are male and white. “Implicit bias is key,” Kaster says. “Our brains are very active in making categories, and we are likely to choose someone we are more comfortable with, [someone] who is like us.”
Another way arbitrators are chosen is through one of the many established dispute resolution organizations. A contract clause may designate that arbitrators be chosen from a list provided by New York City–based American Arbitration Association (AAA) or one that adjudicates the dispute themselves with their own neutrals, such as JAMS, formerly known as Judicial Arbitration and Mediation Services, based in Irvine, California.
As the oldest and largest worldwide nonprofit ADR service organization, AAA maintains a roster of roughly 7,000 neutrals. Some practice areas have more women, such as labor and employment, while men tend to dominate fields like construction and large commercial disputes.
Starting in 2012, AAA case managers were encouraged to provide lists that are at least 20 percent diverse candidates, says San Francisco–based Serena Lee, AAA regional vice president responsible for overseeing the case management and recruiting of arbitrators for large commercial arbitrations. “But ultimately the parties choose, and unfortunately attorneys can fall in to the same unconscious bias—especially in high-dollar commercial disputes where they think the client might be more comfortable with the traditional white male arbitrator,” Lee explains.
JAMS is one of the largest, private ADR providers. Unlike AAA, which provides parties with a roster of lawyers retained on a contract basis, JAMS neutrals are generally full-time lawyers or former judges whose practices are exclusively managed by JAMS.
According to Kim Taylor, JAMS senior vice president and chief legal and operating officer, their clients look for experience and expertise. “It can take a while to get a practice fully developed, so our recruiting has historically been from that pool of law firm partners and judges. And as you move up through the ranks, there are fewer women and minorities,” Taylor says. “Hopefully that will change over the time.”
Because the progress women have made to get to partnership level or appointed to the judiciary has been painstaking, Taylor says it’s not surprising that the numbers are dominated by white males. “But we are recruiting proportionally and tracking and looking to support women and minority attorneys.” Currently, 28 percent of JAMS recruits are women and 10 percent are minorities.
New York City–based International Institute for Conflict Prevention & Resolution (CPR) is an independent nonprofit that offers services and operates as a think tank to “foster innovation and further thought leadership in the field,” according to Helena Tavares Erickson, a senior vice president who oversees the dispute resolution services and panels departments.
Sixteen percent of CPR’s roster is women, and CPR’s selection rate for diverse neutrals overall is 27 percent. Erickson points out that historically people get into the ADR field later in their careers. “There are fewer women in ADR than in the legal profession as a whole because it skews older.”
Specific industries also maintain their own ADR services, such as the Financial Industry Regulatory Authority (FINRA), based in Washington, D.C., and the World Intellectual Property Organization (WIPO), headquartered in Geneva, Switzerland. And while they may have diversity initiatives, tracking progress throughout all of ADR has been inconsistent.
Leaky Pipeline or Implicit Bias?
Leaky Pipeline or Implicit Bias?
The tendency to look for seasoned and well-known arbitrators can make it difficult for new lawyers to break in to the field.
“We oftentimes hear it’s a pipeline issue, like there are no good women out there, and we know that’s not true,” says Harrie Samaras, an independent arbitrator and mediator based in West Chester, Pennsylvania. “It’s like the chicken or the egg: You need to have experience in many cases to get on these rosters.”
In 2011, Samaras and Glick, along with several other women lawyers in the ABA Section of Dispute Resolution, formed the Women in Dispute Resolution Committee. “Our primary goal is to raise awareness and consciousness among users of ADR services, as well as facilitating access to qualified women neutrals, because women weren’t participating in the numbers they should be,” says Glick, noting that it’s more than a leaky pipeline. “There are plenty of talented, capable women out there.”
While WIDR’s efforts have been matched by diversity initiatives within many organizations, progress overall has been “glacial,” observes Kaster, who was also involved in establishing WIDR. “I think a lot of organizations are making an effort and being very proactive, but ultimately the selection is by the client.”
Unconscious or implicit bias has been called the silent killer of diversity in the legal profession, and because of the nature of the process, it may be more difficult to tackle in ADR. “There’s an unconscious element, and the lawyers who are doing the recommending need to be thinking about diversity and recommending diverse lawyers,” Kaster says.
Turning the Tide
In May 2016, some 300 individuals, law firms, and organizations worldwide signed an initiative aimed at increasing the number of women arbitrators. The Equal Representation in Arbitration Pledge now has some 2,500 signatures, including many U.S. firms, institutions, and organizations such as JAMS, AAA, and CPR.
Greenwood calls the pledge a “game changer” that not only brought attention to the issue but also pushed for concrete commitments from all stakeholders. “Many organizations have really taken it on board to provide gender-balanced lists as well as made great efforts to appoint diverse arbitrators themselves.”
According to Greenwood, the percentage of women appointed as arbitrators by institutions in 2016 was on average 17 percent, up from 12 percent in 2015.
“I see virtually every organization working on improving its totals both as percentages of panels as well as selection rate,” Erickson says.
For example, CPR has partnered with FINRA and the Leadership Council on Legal Diversity in Richmond, Virginia, to train fellows in arbitration and mediation and bring more women and lawyers of color into the profession.
According to Lee, AAA has made concerted efforts to recruit diverse lawyers and industry professionals and increase the numbers of women arbitrators in areas of law where they are lacking. In 2015, 35 percent of the new arbitrators added to AAA’s commercial rosters were women, and that number rose to 41 percent in 2016. In construction, 24 percent of new recruits were women in 2015 and 26 percent in 2016. In 2016, they reported that 27 percent of their neutrals were women or minorities.
“There has been so much dialogue around this and so much attention and so many people willing to take the pledge, we are starting to see it move,” Taylor concludes. “At the same time, we need to keep this constantly at the forefront.”