Wednesday, February 5, 2014
My colleague Andrea Schneider (Marquette) and her co-author, Gina Brown, have posted on SSRN their new report: Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey (Andrea also posted on this report at Indisputably.org here).
Here is the abstract:
This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.
This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.
Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.
This report's connection to labor and employment law is fairly straightforward: more and more workplace disputes are being decided through arbitration and mediation. Consequently, the importance of arbitrators and mediators themselves being reflective of the populations they serve cannot be understated. This report and its recommendations takes an important first step in ensuring more gender diversity among arbitrators and mediators deciding workplace and other types of disputes.