Diversity and inclusion are watchwords in the corporate world where companies vie for recognition of their programmes. Many tout improvement in results achieved by increasing the multiplicity of experience and points of view that the workforce can employ to innovate and to address commercial and consumer challenges. In an increasingly interrelated world, business appears to recognise that the most innovative teams include diverse members.

Many companies impose requirements on partners or suppliers to report diversity and diversity improvement. But there has been little attention paid even by these very same committed companies to diversity in the context of alternative dispute resolution (ADR). Instead, dispute resolution is outsourced to law firms and their recommended neutrals. The result has been a remarkable and stubborn lag in the participation of women and non-white mediators and arbitrators in the most significant commercial, international and investor-state disputes.

Because alternative dispute resolution is a privatisation of otherwise public court systems, it is a valid to compare the public judiciary to the private neutrals in commercial arbitration. If we look at the Federal court system, lack of diversity remains, but there has been recent improvement. Currently, there are 1350 sitting federal judges, about 33 percent are women and only 20 percent are people of colour. The number of diverse appointments to the federal bench has increased markedly in recent years. Indeed, as of 31 July 2015, president Barack Obama had appointed more women and minorities in total than any other president before him, with the exception of president Clinton with respect to people of colour. Notwithstanding these accomplishments, the federal courts still have a long way to go if they are truly to reflect the communities they serve.

Apr-Jun 2017 issue

Appropriate Dispute Solutions