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Percentage of Diverse Candidates on Arbitration Lists

Friday, May 16, 2025 2:34 PM | Anonymous


Diversity In Leadership: 6 Steps You Can Take Today - Insperity

Some ADR institutions provide a certain percentage of diverse candidates on all arbitration lists. What percentage of diverse candidates do you think is the correct percentage and why? How should diversity be defined in the ADR space? 

What are your thoughts?

Comments

  • Friday, May 16, 2025 2:55 PM | anonymous
    Zero. The lists should consist of the most qualified arbitrators for the matters at issue in the arbitration, regardless of race or sex. Diversity lists are simply reverse discrimination and their use by any institution is an insult to the high standard of professionalism that we hopefully all stand for.
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    • Friday, May 16, 2025 3:01 PM | Anonymous
      Bingo!
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    • Friday, May 16, 2025 3:10 PM | Cullen Godfrey
      I concur. To include one of each of the "diversity" groups would exclude a majority of qualified arbitrators.
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    • Friday, May 16, 2025 5:16 PM | Kent Stuckey
      Well said!
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    • Friday, May 16, 2025 5:20 PM | Deborah Rothman
      It is a given that the list for any given case should consist of the most qualified arbitrators on the AAA roster. But assuming, as I do, than many more than 10 arbitrators are equally qualified to be listed, and in light of the implicit bias in favor of white male arbitrators on the part of attorneys and parties, ADR institutions can and do play an important role in highlighting, through its lists, qualified non-white male arbitrators. This is not to take anything away from the excellence of the white males on the lists, but to supplement the opportunities for DEI arbitrators, as well as parties and counsel, to have a wider choice.
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      • Saturday, May 17, 2025 8:39 AM | Adrienne Isacoff
        What is meant by "diverse"? Does it include diversity of political opinion, of level of affluence, of where you were raised? Is there an "implicit" belief that a black, gay, very affluent woman who was raised in the suburbs will have less bias against a black man with little education raised in the inner city, than a white man?
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    • Saturday, May 17, 2025 11:33 AM | Jerry
      How do you define “most qualified “?
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    • Tuesday, May 20, 2025 12:17 AM | Nahendran Navaratnam
      I agree. Ultimately, diversity is a matter for the parties to consider and not for the Institution to impose. Parties should simply be encouraged by a guideline or statement on arbitrator selection to consider the value a candidate of a particular culture, legal system, gender, age or other background could bring to the process without compromising on experience, competence, efficiency and integrity etc.
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  • Friday, May 16, 2025 2:55 PM | Daniel Feinstein
    Diversity of thought, of experience, and of approach are all vital to a fair process. Diversity of race, gender, religion, etc. is a good proxy for such necessary diversity of thought. In a judicial process, the parties are afforded an opportunity to be before a jury of their peers. Adjudication through private arbitration should be similar.

    That said, I think that a panel sent to the parties by a provider like JAMS or AAA is going to be a very small sample size. Ensuring a representative cross section of gender, race, religion, physical disability, etc. in a group of 7 to 13 people is difficult at best. I would test the diversity not at the individual case panel level, but instead at the next step up, the group from whom the panel itself is selected. The neutral administrators should strive to include a representative sample of arbitrators from all reasonable demographic groups.
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    • Friday, May 16, 2025 3:05 PM | John Busey Wood
      Nicely expressed and well thought.
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  • Friday, May 16, 2025 3:00 PM | Robert L. Arrington
    We are all diverse.
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  • Friday, May 16, 2025 3:00 PM | Nasri H Barakat
    If the roaster provides for a fair manner to identify the various groups then the list can be easily broken down based of the percentages comprising the entire roaster. I believe that would be a reasonable place to start. Picking a percentage "out of the blue" would be unfair and inaccurate. A good place to start would seem to me with the information required in order to complete the profile of the arbitrators in order to identify them with certain groups subject to DEI. Some maybe reluctant to divulge certain information but many would have no issue divulging the information if it is kept confidential and used only for the purpose of reaching a fair indication of what the percentage should be.
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  • Friday, May 16, 2025 3:09 PM | Jaime Ramon
    While the lists of approved neutrals from an organization such as the AAA should be diverse, I don't believe that a set percentage of neutrals should be included in every list sent to the parties for consideration. The list of recommended neutrals should be just those that are qualified to hear the matter. I would hate to be chosen as a neutral simply because of my ethnic background. Rather, I would prefer to be chosen because I'm qualified to hear the matter.
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  • Friday, May 16, 2025 3:20 PM | Peter Rundle
    Interesting to read the comments thus far -- the concept of diversity obviously touched a nerve with a few. The parties and their counsel can - and often do - reject lists that do not provide a sufficiently diverse choice. It seems to me that providers respond to the wishes of their users in developing lists, which is a good thing. Of course, more experienced and sophisticated parties / counsel bypass the list process by direct appointment or panel-wide review and selection.
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    • Friday, May 16, 2025 3:33 PM | Anonymous
      I concur.
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  • Friday, May 16, 2025 3:34 PM | Anonymous
    As a user of Neutral services, I am most concerned about qualifications/ competence. I believe Diversity should be sought in training Neutrals but experience & training are the most important factors in actual Neutral selection for cases.
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  • Friday, May 16, 2025 3:50 PM | Anonymous
    Both can be true. Ultimately, qualifications and ability matter the most. But what exactly does "the most qualified arbitrator" mean? Is it the prestige of a law school? Reputation of their former law firm? Rate per hour? Number of arbitrations? One cannot ignore the fact that arbitrators are not considered merely because of race, ethnicity, gender, etc. Including such people on lists of potential arbitrators ensures that arbitrators with diverse backgrounds are considered and have opportunities to show how effective and efficient they are. Additionally, the parties (and/or party representatives) are generally much more diverse than the typical arbitrator. Providers such as FINRA and AAA should strive to ensure that their rosters reflect the general population to a reasonable degree. In a situation where there is no jury and this is their one shot to make their case (or defend it), the "best qualified arbitrator" might be someone who gets where that party is coming from.
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  • Friday, May 16, 2025 4:06 PM | Joseph Bucci
    Selection of Arbitrators should be based on objective criteria……………

    1. experience
    2. years of practice
    3. experience in the actual industry being served by the proceeding
    4. objective suitability for inclusion in the panel irrespective of race, gender, sexual orientation, or age.
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  • Friday, May 16, 2025 5:44 PM | Charles S. Turet, Jr.
    Based upon what’s happening with the current administration, I would hesitate to publicize any DEI information. You may make the AAA a “target”. If there are any diversification policies or criteria for the list of arbitration “candidate” appointments, I would hesitate to publicize them.
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    • Friday, May 16, 2025 6:42 PM | Julia Sullivan
      How incredibly sad.
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  • Friday, May 16, 2025 7:01 PM | Karl Sieg
    Diversity is the strength of the US. Different perspectives and experiences. It can lead to better understanding and decisions.
    Nevertheless, percentage goals are nonsense. Chose panel members based on their experiences and knowledge of the subject of the dispute being decided. To do less can be expected to result in inferior decisions.
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  • Friday, May 16, 2025 8:16 PM | Will I Am
    Providing a diverse slate of candidates has nothing to do with lowering standards or compromising qualifications. That notion presents a false dichotomy. For example, if an arbitrator—regardless of background—lacks the necessary experience in employment law, no ADR institution would recommend them for a matter requiring such expertise simply to meet a diversity target.

    The issue is not a lack of qualified diverse professionals, but rather a lack of access, visibility, and opportunity. The more meaningful question to ask is: Why are so many highly qualified diverse professionals being overlooked in the current system?

    Moreover, while arbitrators are often believed to be appointed solely on the basis of skill, experience, and reputation, the reality is often more nuanced. Appointments are frequently shaped by long-standing networks and informal gatekeeping. Word-of-mouth referrals, repeat appointments, and a tendency to rely on familiar, “safe” choices continue to dominate the process. Consider the typical firm-wide email seeking ADR recommendations—how often do we see the same names surface time and again?
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    • Saturday, May 17, 2025 4:31 PM | John M. Delehanty
      I think this author's comments are the most astute of all the responses I have read. I am a non-diverse arbitrator with many years of experience and subject matter qualifications. But it has been my experience that the selection of arbitrators has a distinct "inside baseball" quality that adversely affects diverse and non-diverse arbitrators alike. It is long overdue to break up the "long-standing networks" and "informal gatekeeping" that characterize the arbitrator selection process.
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    • Saturday, May 17, 2025 4:31 PM | John M. Delehanty
      I think this author's comments are the most astute of all the responses I have read. I am a non-diverse arbitrator with many years of experience and subject matter qualifications. But it has been my experience that the selection of arbitrators has a distinct "inside baseball" quality that adversely affects diverse and non-diverse arbitrators alike. It is long overdue to break up the "long-standing networks" and "informal gatekeeping" that characterize the arbitrator selection process.
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  • Friday, May 16, 2025 8:44 PM | Anonymous
    As I read the comments of other arbitrators in this blog, I feel some missed the point of the purpose of diversity. The comments seem to focus on the term diversity or DEI as being associated with a "less qualified" arbitrator, particularly arbitrators of a particular minority racial, ethnic or religious background who are "qualified" and in some cases "over qualified" but are not selected to serve on a panel due to their race, ethnic origin, sex or religious background. "Qualified" arbitrators of all races, ethnic origins, sex, religious backgrounds, etc., is what makes up diversity. The history of what occurred based on my over 30 years of experience is that attorneys for the parties, select arbitrators who they know or feel comfortable with and equally qualified minority arbitrators do not get selected or never get the opportunities to serve due to affiliation biases. Over the years that has changed since the parties as well as their counsel are now more diverse and are demanding for a qualified diverse panel or a list of qualified arbitrators reflecting who they are. Imposing a percentage is not a cure all. Some providers, in particular, FINRA took steps to diversify its qualified arbitrator pool and selection on lists by taking a survey of all of its arbitrators annually as to their racial, ethnic background and demographics, etc., and setting up algorithmic system to provide list of qualified diverse arbitrators to the parties and their counsel. Some other providers do not have a system or a process of exploring ways to diversify its arbitration list pool provided to parties and their counsel. The diversity issue will continue to be an ongoing process with respect to the diversity of qualified arbitrators and a challenge for some providers to incorporate a system that would incorporate fairness and inclusivity.
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  • Saturday, May 17, 2025 4:01 AM | Geoffrey BH
    Lists are contrary to the principle of party autonomy.
    Parties should give consideration to diversity of choice. It isn't necessary to look for a soi-disant 'qualified' arbitrator. In most jurisdictions the choice is open.
    Who knows what the agenda of an 'institution' may be?
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  • Saturday, May 17, 2025 5:19 AM | George lobman
    There is no need for social justice in 2025! We have poisoned society on every level trying to make up for an activity that existed over 200 years ago. The more we are identified as anything other than man and women the results separate us into defensive groups ! Everything should be what you earn and deserve not the color of your skin or your sex!
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  • Saturday, May 17, 2025 1:23 PM | Anonymous
    I will not be put to shame supporting those who have been less fortunate than me. I will not be put to shame for acknowledging the wrongs against others for generations. I will not be put to shame for standing for the proposition that diversity benefits our society. Yes, only the best arbitrators should serve but let the parties make the choice based on the diversity of qualified candidates offered to them. There is no harm and only good in a diverse list. Prejudice, envy and greed are the enemy here.
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  • Sunday, May 18, 2025 12:14 PM | Anonymous
    While have a pool of diverse candidates from which to build panels is extremely important, having a specific percentage quota for each panel is not wise and could have legal implications, including under 42 USC Section 1981.
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  • Monday, May 19, 2025 1:21 PM | Bob Lusk
    I am “diverse” (disabled). But I think we should focus on competence and let diversity take care of itself.
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  • Monday, May 19, 2025 7:20 PM | Anonymous
    To answer the specific question asked, the answer is that there is no particular percentage that should be used, nor is it possible. An ADR provider needs to "meet the market" by providing a set of qualified, capable neutrals who both claimants and respondents will trust to decide issues fairly and efficiently. The parties may use different factors as proxies and it is difficult to know which will be most important. There are several that some may choose: Ivy League education, non-Ivy League education, prominent large law firm experience, in-house experience, small firm experience, solo practitioners, trial experience, transactional experience, industry experience, subject-matter expertise, ADR experience, judicial experience, pro bono activities, etc.... It is possible that other types of diversity (e.g., race, gender, and other specific individual characteristics) may be a factor for some parties in particular cases but it is impossible to know which. The best thing is for an ADR provider to recruit smart, capable and experienced individuals from all backgrounds so that the lists that are provided are as representative as possible and so the choices that are available can "meet the market." ADR is in the business of satisfying the client. This is part of it.
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    • Tuesday, May 20, 2025 9:23 AM | anonymous
      Just stick to providing highly qualified neutrals-period.
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  • Tuesday, May 20, 2025 11:15 AM | Laura Bottaro
    I serve on the Board of a nonprofit mediation center. We receive inquiries for mediation from parties who seek mediators that share their background, experience, and perspective. The same would presumably apply to parties choosing arbitrators. Arbitrator choice is a hallmark of arbitration. Not offering access to a diverse set of candidates deprives parties of choice. While not all parties and their counsel may use these criteria, many likely will. Also, from the perspective of a white female arbitrator, I appreciate that AAA is looking beyond the traditional networks that led to some panelists getting a lot of exposure and others getting less exposure. Finally, I applaud AAA for having this conversation in times when this is a highly divisive issue. Not an easy topic.
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  • Tuesday, May 20, 2025 12:50 PM | James R. Madison
    IMHO, the keys are the composition of the provider's panel and of the membership on the panel that is qualified to hear the type of dispute involved.

    My thinking is based on the premise that offerings should be reflective of what the provider has available.


    That having been said, diversity covers gender, ethnicity or race, age, experience, and lawyer vs. retired judge vs. non lawyer. Geographic diversity may or may not be relevant, depending on the parties and counsel involved in the case

    To the extent one or more of these categories are not represented on the provider's panel or the relevant subset of the panel, they need not be offered to the parties on a particular case in the interest of diversity. There may, however, be other reasons, such as the requirements of the parties, to offer a particular diversity or none at all.
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