Overcoming the Diversity Deficit in ADR - American Bar ...

Overcoming the Diversity Deficit in ADR

HOMER C. La RUEARBITRATOR, MEDIATOR, PROFESSOR OF LAW

November 10, 2021Addressing Unconscious Bias in the Selection of Neutrals: We've Got a Plan for That. Copyright: Homer C. La Rue and Alan A. Symonette

11/16/20211

RCI DEVELOPMENT: ACHIEVING DIVERSITY IN ADR

Based on the article in the Howard Law Journalby

Homer C. La Rue and Alan A. SymonetteThe Ray Corollary Initiative™:

How to Achieve Diversity and Inclusion in Arbitrator Selection63-2 HOWARD LAW J. 216 (Wint. 2020)

THE PROBLEMIn 2003, Supreme Court Justice Sandra Day O’Connor wrote in Grutter v. Bollinger :

It has been 25 years since Justice [Lewis F.] Powell first approved the use of race to further an interest in … diversity … We expect that 25 years from now, the use of … [race] will no longer be necessary to further the interest … [of diversity and inclusion].

11/16/2021Addressing Unconscious Bias in the Selection of Neutrals: We've Got a Plan for That. Copyright: Homer C. La Rue and Alan A. Symonette

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THE PROBLEM• Justice O’Connor’s deadline, which concerned

diversity in higher education, will be upon us in 2028.

• The pace of progress to diversity, equity, and inclusion suggests that many institutions in our society, including the ADR community, are running out of time to meet the Justice’s deadline.


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OUR COLLABORATIVE/COLLECTIVE GOAL

Increase the Speed of the Bend of that Slow Arc

of a

Moral Universe Toward Justice.


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THE AGENDA

1. The Problem—the Front-End and Back-End Issues2. Thinking Outside of the Box Based on Empirical Data

3. The Plan: The Ray Corollary Initiative™ (“RCI™” )4. The RCI Pledge


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THE LIST

One Addition to the Resolution of the “Front-End” Issue:

The New List: Arbitrators of African Descent with a U.S. Nexus

Nancy M. Thevenin of Thevenin Arbitrationand

Dr. Katherine Simpson Michigan / U.S. & London-based arbitrator of Simpson Dispute Resolution

See [email protected]


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mailto:[email protected]

THE LIST

The New List Contains 123 potential appointees or hires of African

descent Meets the statement that ‘we would hire and appoint, if only

we had a list of people to choose from.’” The List is intended to enable individuals and organizations

— whether law firms, institutions, or disputing parties — to find and contact “just the right person” for every role

Could be as arbitrator, speaker, expert, counsel, mediator, or even new hire — whether as a lateral or as a newly qualified professional.


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https://www.uscib.org/uscib-content/uploads/2020/12/Arbitrators-of-African-Descent-August-2020-Final.pdf


First Middle Last Suffix 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19

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SUMMARY OF THE CHART• List Count: 43 Persons. One person has resigned their membership since

the list was prepared. Not all are active, some have retired and others are deceased.

• The total number of members admitted to the NAA since 1947 is 1488 (including the 2019 admittees).

• The total number of persons of color admitted is forty-three (43).

• The percent of the NAA membership that are persons of color is 2.88 or 3%

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THE PROBLEM: DEFINITION OF TERMS

“Diverse Neutrals” defined:

• Black, Latinx, Indigenous, AAPI, other people of color

• Women

• Persons of differing sexual orientations and gender identities

• Persons living with disabilities


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THINKING OUTSIDE OF THE BOX—THE REAL PROBLEM

The selection-of-the-neutral process—what is in the black hat (i.e., the selection process) needs to be uncovered.


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What Is the Question About Which We Should Be Concerned?

Does It Matter Who and How Many Are in the Slate of Finalists for Selection of the Neutral?

Yes, it does.


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THINKING OUTSIDE THE BOX ….

When the status quo looks like this, the likelihood is that the selection-outcome will reflect the status quo.


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When the status quo adds only one diverse person, the likelihood is that a diverse person will not be selected.


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When the pool of candidates contains at least 30%diverse persons, the chances of a diverse candidate being selected goes up exponentially.


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The Perception of the Status Quo Is Malleable—Capable of Being Shaped or Formed And Reformed

The Perception of What Competence Looks Like Is also Malleable.

Source of the following statistics: Stefanie K. Johnson, David R. Hekman, and Elsa T. Chan, If There’s Only One Woman in Your Candidate Pool, There’s Statistically No Chance She’ll Be Hired, reprint Harvard Bus. Rev. Reprint H02U2U, published on HBR.ORG 1-6, 2 (April 26, 2016). Used under a license from Harvard Bus. Review.


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What to take away from the research findings?

Two (2) women in the finalist pool of four (4)

The odds of hiring a woman are

79.14% times greater.


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What to take away from the research findings?

Two (2) persons of color in the finalist pool of four (4)

The odds of hiring a person of color are

193.72% times greater.

Same effect, no matter the size of the pool (6 finalists, 8 finalists, etc.)—provided the 30% metric is maintained.


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WHY????

When there is only one diverse person in the pool of finalists, the difference between the one and the norm is highlighted.

Translation for the selector? Risky to deviate from the norm or the status quo; therefore,

“I select who I know.”


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Translation for the selector?

“I select who I know.”and

Who I know looks like me!!!


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Charlotte E. Ray Graduated from Howard University School of Law in 1872. First Black Woman to receive a law degree in the U.S. First Black Woman to be admitted to bar in the United

States—the Bar of the District of Columbia.


Ray Corollary Initiative™ (RCI ™)

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What is the Corollary?

What is the plan?


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Quite simple—lessons learned

“biglaw”, via the Mansfield Rule™ and

“NFL”, via the Rooney Rule

Apply to the arbitration-selection process in the ADR community.


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What is the Ray Corollary Initiative?

A not-for-profit corporation with the mission of increasing diversity in ADR


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MISSION STATEMENTThe mission of RCI Inc. is to increasediversity, equity, and inclusion in theselection of arbitrators, mediators, and otherADR neutrals. It will do this by encouragingcommitment to the RCI pledge and otherwiseproviding research and tools to support theselection of diverse neutrals.


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RCI™ Pledge (sample)In furtherance of our commitment to diversity, equity, and inclusion,

(Name of Organization or Firm)

pledges to set as a goal to include at least 30% diverse neutrals (Black, Latinx,Indigenous, AAPI, other people of color, women, persons of differing sexualorientations and gender identities, and persons living with disabilities) ascandidates on any list (three or more) from which mediators or arbitrators for agiven matter are ultimately selected and will ask our outside law firms andcounterparties to do the same.

To further drive accountability and transparency, we also will track the selection ofdiverse neutrals chosen in our matters, including asking our outside counsel totrack the selection of diverse neutrals across all matters for which they representus.

The language of the Pledge will be modified to identify the entity taking the Pledge.


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Purpose, Aim, and Justification

Builds on ABA Resolution 105 aimed at creating a commitment to increasing diversity in ADR.


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Encourages ADR providers and selectors to strive for their slates or rosters of proposed neutrals for any given matter to include at least 30% diverse neutral candidates.


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The 30% metric is based on empirical social science research.

Corroborated by actual experience


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CURRENT EXPERIENCE WITH THE 30% METRIC


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White & Case, after completing its 2019 Mansfield Rule certification:

"The 30 percent metric and the built-in accountability have had a positive effect on encouraging our leaders to expand the pool of talented lawyers they develop and select as the next generation of leaders,"

Chair, David Koschik, Partner & Vice of White & Case (New York).”


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AMTRAK Proposal To It’s Unions

Amtrak would like to increase the diversity of neutral arbitrators used to resolve Amtrak’s Section (3) disputes. Attached to this letter is a copy of a … [Howard] Law Journal Article titled “The Ray Corollary Initiative: How to Achieve Diversity and Inclusion in Arbitrator Selection,” by arbitrators Homer C. La Rue and Alan A. Symonette. The article makes a compelling case for the … initiative, which proposes that neutral services and users commit to ensuring that 30% of candidate pools (e.g., strike lists) will contain “persons of color and women”.

***… Amtrak proposes amending any language in existing Board Agreements where it provides for obtaining a list of neutrals from the NMB, to include a requirement that at least 30% of the names on such a list be composed of members from communities generally recognized as under-represented.


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AMTRAK Proposal To It’s Unions

Report: Successfully include such a provisions in the collective bargaining agreements with

their unions.


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FRATERNAL ORDER OF POLICE and

CITY OF PHILADELPHIA

Police Termination Arbitration Board (PTAB)

At least forty percent (40%) of the PTAB arbitrators will be people who identify as women, people of color, members of the LGBTQ+ community, or other underrepresented groups.


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CPR’S RCI PLEDGE


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AUTHORS’ CONTACT INFORMATION


Homer C. La RueArbitrator and Professor of Law

President-Elect, National Academy of Arbitrators

Howard University School of Law

301-332-9227

Email: [email protected]

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Overcoming the Diversity Deficit in ADR - American Bar ...

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