Diversity and Private Sector Neutrals: A Call for Action

The point of making ADR more diverse … is that this element of the legal system remains out of touch with the reality of society, the wider workforce, and the legal profession.

Ontario Bar Association Working Group on Neutral Diversity, “Neutral Diversity in Ontario”, March 2022

We have two systems of justice in Canada – the public system of courts and tribunals – and the private system of ADR (mediation and arbitration). The focus of my previous columns has been mostly on the former. In this column I want to turn the focus to the private ADR system.

There are two major differences between the public justice system and private ADR. The first one is monetary – other than nominal court fees, there is no charge to access a decision maker at a court or tribunal. In the ADR system, the parties share in the cost of the arbitrator or mediator. The other difference is the selection of a decision maker. The parties get no choice in the selection of a judge or tribunal member. In the ADR system the general practice is that the parties mutually agree on the decision maker or mediator.

It is the selection process in the ADR system that has led to increasing concerns about diversity of the ADR practitioners being selected by the parties to disputes.

The Ontario Bar Association (OBA) Working Group on Neutral Diversity released a report in March 2022 examining diversity in alternative dispute resolution settings. It proposed recommendations for improving the diversity of those selected as arbitrators and mediators (“neutrals”). The report notes that neutrals hired in Ontario do not generally reflect the gender or racial diversity of the province or the legal profession. The diversity of neutrals is defined in the report as neutrals from racially diverse backgrounds and from various age groups and genders. Missing from this definition are neutrals with disabilities and it is not clear from the report if this omission was intentional or not.

Since a significant number of neutrals are or were lawyers, a useful starting point for determining representation in the neutral community is an examination of the demographics of what has been called the “pipeline” to becoming a neutral. In 2019, 23.7% of lawyers in Ontario self-identified as racialized (the closest date for comparison with the Ontario population as a whole is 2016, where 29.28% self-identified as racialized). Those lawyers who self-identified as Indigenous were 1.43% (2.9% for the Ontario population).

Although the representation of women in the legal profession is at 44%, that representation declines with age: in the 50 to 65 age cohort, men represented 59% of lawyers; and 82% of lawyers over the age of 65 were men.

Determining the demographics of Ontario’s mediators and arbitrators is a difficult task – there is no register or list of neutrals that would permit a reliable analysis. The OBA Working Group addressed this through a survey of its members. The survey results were based on 171 respondents – hardly a reliable sample, but the best snapshot available.

Respondents to the survey reported that in the last two years, the mediators that they hired were men 70% of the time, and white 94% of the time. Interestingly, the trends differ based on practice areas. Commercial litigators hired male mediators 80% of the time, and white mediators 98% of the time (based on 35 responses). Employment lawyers hired male mediators 50% of the time, and white mediators 91.5% of the time (based on 18 responses).

The OBA report states that selected arbitrators were 65% men and 93% white. Again, the difference in practice areas is striking. Commercial litigators hired male arbitrators 82.6% of the time and white arbitrators 100% of the time in the last two years (based on 35 responses). Employment lawyers hired male arbitrators 66% of the time, and white arbitrators 96% of the time (based on 18 responses).

Some of the reasons given for not selecting women or racialized mediators or arbitrators included a lack of familiarity with those neutrals in the practice area. Another reason given, which I suspect is mostly in the commercial arbitration area, is that retired judges are often hired as mediators or arbitrators and those former judges tend to be white men.

Some of the comments from the survey give a flavour of the closed nature of the legal community:

• “I do not seem to be familiar with many women mediators.”
• “I don’t have any experience with racialized mediators, and I have never had any recommendations for racialized mediators. I can’t recommend to my client a mediator who I have never used or had been recommended to me.”
• “I would like to include more [racialized mediators] but I do not know them and can’t ask my colleagues if they’re the right fit because nobody else has used them.”

The comfort level that lawyers have with a neutral that they have worked with before is an example of an unconscious barrier to diversity. Although the OBA report does not name it, the familiarity trap is a well-known bias in the psychology literature – often called “affinity bias”. This is our tendency to connect with others who share similar backgrounds, beliefs, and interests.

There is some evidence from the OBA survey of practitioners of a degree of misogyny at play in the selection of mediators – although not from lawyers but their clients:

• “I have received comments from clients that they want a “hardball man” to pressure the other; I explain to clients this simplistic position is nonsense.”
• “Often a man is preferred over a woman.”

The OBA working group also surveyed neutrals, with 23 responses – 18 of whom identified as white. Fifteen identified as women. Over 50% said that they felt that their identify had an impact on their ability to be selected. Interestingly, most of the comments of neutrals do not focus on affinity bias, but on more explicit biases or stereotyping:

• “I was once asked how I expected to gain traction in the field given my age and sex. The implication was someone who looked like me would not be taken seriously by clients and therefore would not be hired.”
• “When I started as a mediator after practicing law for 16 years, a senior male partner and former colleague in my former large firm, asked me how I planned to get people to hire me since, ‘you are an attractive woman’. …
• “I have sensed strongly that parties who want an ‘aggressive’ or directive, evaluative mediator will often assume a woman won’t be comfortable with that style.”
• “I have heard that I’ve been rejected as a mediator because I am too ’empathetic.’”
• “… Sometimes parties feel that women in general will not be tough enough.”
• “… Over time, I have learned that people have sometimes chosen me because they have a plaintiff who, for whatever reason, would not react well to an overbearing man and would prefer a female mediator. I have also been told that I have been chosen for my ability to relate to and/or connect with a younger plaintiff, or someone from a racialized background.”

The OBA working group has a comprehensive set of recommendations that focus on two broad approaches – increasing the supply of diverse neutrals and increasing demand, or the rate at which diverse neutrals are selected by lawyers and clients.

The recommendations are too extensive to list in this column. However, there are a few broad themes. For the supply side of the equation, the recommendations focus on training, networking and mentorship opportunities for diverse neutrals. For the demand side, the recommendations include educating clients and staff about the benefits of diversity and promoting diverse neutrals so that they can obtain more experience and become more competitive in the marketplace.

The OBA working group suggests that there is a role for the public justice system in encouraging diversity in the private system. The report suggests that when tribunals use mediation services that they use mediators from diverse communities. However, most of the recommendations focus on the parties, their lawyers and ADR organizations.

The working group also focuses on rosters of mediators and the need to increase the representation of diverse neutrals on these rosters. It focuses on the mandatory mediation roster for civil litigation in Ontario.

It is not clear why the OBA working group neglected to provide recommendations on the roster of labour arbitrators maintained by the Ontario Ministry of Labour. That could be because there is very little transparency in the process. Section 49(10) of the Ontario Labour Relations Act establishes a committee called the Labour-Management Advisory Committee. The Minister of Labour appoints the Chair, three members represent employers and three members represent trade unions. Sub-committees of the Committee interview prospective arbitrators. I was unable to find anything online about the terms of reference of this Committee or its selection criteria for arbitrators to be put on the roster.

The concern about diversity in the private delivery of dispute resolution is not new. Over 14 years ago, Americans David Hoffman and Lamont Stallworth wrote about the need for a program to increase diversity in the field (“Leveling the Playing Field for Workplace Neutrals: A Proposal for Achieving Racial and Ethnic Diversity”). Their approach was similar to that of the OBA – increasing the visibility of diverse neutrals and educating ADR users about conscious and unconscious biases in selection processes. However, they also suggested a third component: developing a system of accountability to encourage the use of diverse neutrals.

Professor Sarah Rudolph Cole has recently written about the various initiatives in the United States (diversity pledges, diversity commitments, diverse arbitrator recruitment, and mentorships and fellowships for prospective diverse arbitrators) which she describes as “laudable” and “admirable” but “unlikely to change who is selected to be an arbitrator”. She notes that businesses that long ago committed to diversity in business and hiring practices, often abandon that commitment when selecting neutrals. Her conclusion is a stark one – leaving the selection of neutrals to the parties to a dispute is unlikely to result in increased diversity among selected neutrals.

Professor Rudolph Cole has a number of proposals for increasing representation of diverse arbitrators. The first one strikes at the core of the private arbitration model – the direct appointment of qualified arbitrators. In other words, eliminating the requirement for mutual agreement on an arbitrator. This may be a step too far for many parties. Another proposal is more palatable and a version of it exists in some Canadian collective agreements: permanent panels of arbitrators that hear cases in rotation. In this model, the parties select the arbitrators and commit to rotating through the list to obtain the next available arbitrator. The twist proposed by Professor Rudolph Cole is that the permanent panels should include diverse neutrals:

Only if permanent panels of diverse neutrals are created by the arbitral institutions, together with support from businesses and input from employees, consumers, and the entities that advocate on their behalf, might we experience the kind of diversity among arbitrators that will make the arbitration process more acceptable to diverse disputants and more effective overall.

The OBA deserves credit for highlighting the lack of diversity in the private sector ADR community. Their recommendations lay the groundwork for a fruitful dialogue with equity-seeking communities and advocates. As the US experience has taught us – talking about diversity and encouraging diversity in the selection process may not be enough, but it is a start.

The OBA has announced that it will integrate education sessions into upcoming professional development offerings to “champion” the report’s proposed solutions. Addressing the issues of neutral diversity within the legal community is an important first step in encouraging the dialogue that needs to occur among lawyers, their clients, and ADR practitioners.

A robust approach to increasing diversity in the selection of neutrals should also include the following:

• A more comprehensive definition of diversity, including, for example, disability
• Better data collection to better gauge the success of diversity initiatives. The information available on diverse neutrals is mostly anecdotal and there needs to be a discussion on how to get a better picture of diversity in the ADR field
• Accountability measures such as regular reporting by lawyers of their selection of diverse neutrals
• Transparency in selection processes for rosters of neutrals
• A focus on the possible barriers to entry into the ADR profession such as accreditation and training costs