ADR Diversity II
ADR Diversity II
I must respond to Mr. Friedman’s letter to the editor concerning the article I co-authored, “Changing The Face of ADR: A Call for Greater Diversity Among The ADR Profession.” The article is hardly “another woke DEI screed,” as he calls it. Instead, it is based on research and actions taken by the American Bar Association (ABA) and the National Academy of Arbitrators (NAA), neither of which one would characterize as particularly “woke;” my co-authors and I relied on those venerable organizations’ thoughts and our respective experiences around the issue.
Like Mr. Friedman, I am a Caucasian male neutral. I, too, have frequently served as neutral in cases where parties were not similar to me in any DEI category. Always respecting impartiality standards, I have never considered or allowed those parties’ race, etc., to have any bearing on how I served as neutral. But I disagree with him that the inquiry ends there, with the experiences of two older white men (his and mine).
We both went to law school, came up in the practice of law, and embarked on ADR careers at times when both professions were overwhelmingly populated by Caucasian men. While the legal field has gradually seen an increase in diversity, the ABA noted law still lags significantly behind other learned professions. So, Mr. Friedman’s assertion he’s not heard of any ADR diversity problems does not mean there are no such problems. In contrast, the ABA, the NAA, and other national ADR organizations have asked these questions and, consequently, have recommended or implemented DEI measures.
The thrust of our article is not “white men cannot serve as neutrals.” Instead, we simply call for greater opportunities for consideration of female neutrals or neutrals of color by those who select neutrals. The gains in representation of underrepresented groups among lawyers and judges did not just happen spontaneously. They were the result, in significant part, of specific actions by individuals and organizations in positions to make such changes — such as Big Law’s embrace of the Mansfield Rule.
Finally, as an attorney and as a neutral, I have personal experience with parties who told me they preferred a non-Caucasian neutral, because they did not believe a Caucasian neutral would truly understand them. In those instances, I referred the parties to ADR neutrals of color. I did not refer them because I had concerns about neutral partiality. Instead, I did so because I had the humility to understand the key to acceptance of ADR outcomes by the parties: it’s not about what the neutral wants; it’s about what the parties want or need. The simple fact that some non-Caucasian and/or female neutrals are presented — selected or not — can begin to allay concerns about systemic fairness, since parties would no longer have the concern that none of the neutrals look like them.
Christopher M. Shulman
Tampa
