Tuesday, March 27, 2018
When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining process and how it operates, such information greatly enhances their likelihood of interacting effectively. Well-prepared minorities and women should thus be able to seek advantageous terms for themselves in ADR, even when dealing with white-male counterparts. Conversely, there is no guarantee that members of ethnic groups or women would achieve more advantageous outcomes in judicial proceedings. Even the formal rules of judicial proceedings may be influenced by subconscious stereotypes that still influence the ways that judges, jurors, and arbitrators assess litigant situations. Therefore, this article posits that adjudication is not clearly preferable to ADR procedures for minority group members and women.