Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male. I generally endeavor to steer clear of this topic because I, as a commercial mediator and arbitrator, have a market that is primarily composed of white men between the ages of 40 and 65. And I don't, of course, wish to offend my market.
Recently, however, my all time favorite "old white man" (my husband) reported back from a training session on an arbitration panel whose name cannot be spoken that of 29 trainees, only two were women - and women of the type who give the old Astaire-Rogers joke "legs" - those who have done everything Astaire did, but backwards and in heels.
This made me finally take a look at the composition of ADR panels. What I found, at least in my own back yard, is that women, while under-represented, are likely fairly proportionally representative of the law school class years from which most neutrals are drawn, i.e., 1970 to 1990 with a tilt toward the earlier decades of the 70s and 80s.
Looking at the "Talk" Before We Examine the "Walk"
The American Arbitration Association (whose diversity we can neither assume nor refute given the absence of statistics on their panel membership) has the following to say about its commitment to diversity:
Our Shared Commitment to Diversity
Our integrity demands impartial and fair treatment of all people with whom we come in contact, regardless of gender, race, ethnicity, age, religion, sexual orientation, or other characterization. Our conflict management services put into practice our goal for the resolution of disputes between parties with different perspectives, experiences and backgrounds.
Because of the breadth of the AAA's work and the global reach of its services, we recognize the importance and contribution of a diverse work force, a diverse Roster of Neutrals, a diverse Board, and commit to respect and increase diversity in all our endeavors.
I recall that JAMS once had a diversity initiative, but I now find no mention of diversity in its Mission, Vision and Values Statement. The JAMS Foundation appears to have funded one project that has diversity as its goal: it awarded $10,000 to Community Mediation Services in Jamaica, New York for its Intercultural Peacemaking Project for Youth "to help fund a program providing communication and conflict resolution training to youth from diverse cultural backgrounds and assisting them in becoming trainers of diversity and conflict resolution education for others." It does not appear that JAMS has a diversity initiative for placing women, African-American or other under-represented "minorities" on its panel, nor even a statement of non-discrimination on its website. If I'm wrong about this, I'd love to hear about it from a JAMS representative.
The International Institute for Conflict Prevention and Resolution, of which I am a member, has an active diversity committee, of which I am also a member, and is grappling with ways in which to increase the representation of under-represented "minorities." We're making a concerted effort to address the problem and I send bouquets of early blooming parentheses )))((( to CPR in recognition of their commitment.
The Statistics Reveal the Problem
Despite the fact that my own law school class of 1980 was 50% women, the general national statistics at the time were that women comprised 33% of all law students graduating that year. In the thirty years that have passed since my own law school graduation, the percentage of U.S. women attorneys working remains less than their law school numbers in 1980, i.e., only 30% of the 1,104,766 practicing lawyers in the United States, Even those numbers are misleading, however, for women neutrals, like me, who work in the commercial field (a field in which I labored as an attorney with hardly a hint of gender-discrimination for nearly a quarter of a century).
Here's what the National Association of Women Lawyer's Annual 2009 Report on the status of women in the law has to say about women in positions of power at the type of firms that hire commercial mediators and arbitrators.
In 1980, 67% of law school graduates were men and 33% women. A decade later, by 1990, women had progressed to 43% of graduates. And by 2000, that number had increased to 48%. For nearly two decades, women have started out in about equal numbers to men when they enter law firms as first year associates.
As steady as the increase has been for women entering the profession, that increase has not translated into staying power and advancement – rather there is a steady decrease of women at each higher position in firms. The impact? An ever decreasing source of women for partnership and leadership roles.
In the typical firm, women constitute 48% of first- and second-year associates, a percentage that approximates the law school population. By the seventh year, the ranks of women have dropped slightly to 45%.14 The gradual erosion of women heightens with seniority. On average, women constitute 34% of of-counsels, 27% of non-equity partners, and 16% of equity partners. This trend has not changed dramatically in a number of years despite the very substantial number of women law graduates who entered firms in the last 20 years.
In the typical one tier firm, where equity is the only form of partnership, 18% of equity partners are women. In two tier and mixed tier firms, by year ten, women comprise only 10% of equity partners. By year 15, women make up 17% of the equity partners and by year 25 it is 18%. The data suggest that not only are far fewer women than men achieving equity status, it takes women substantially longer to reach that goal.
Let's Take a Look at the Composition of the Most Successful ADR Panels
My panel, ADR Services, Inc. is owned not only by a woman, but by the hardest working women in ADR rock 'n roll, the indefatigable Lucie Baron. Lucie does it backwards, in heels, while spinning 20 plates in the air. It's exhausting just to watch her walk down the corridor!
ADR Services, Inc. has thirteen (rockin') women on its Southern California panel and 62 men -- 20% women. JAMS has fourteen women to 61 male neutrals on its Los Angeles panel, close to 23% women. Although both fall far short of the 33% women who occupied law school classes in 1980 when I graduated, no one should be surprised by these percentages given the fact that ADR neutrals are mostly drawn from law school classes between 1970 (when the percentage of women was ten percent and 1990 when the percentage of women was 43%, with most neutrals congregating at the older end of the spectrum).
How Consistently are Women Being Hired as Neutrals outside the "Pink Ghettos" of Family Law, Estates and Employment?
With no disrespect to my sisters laboring in the fields of family law, employment and trusts and estates, these fields have traditionally been associated with women because they are said to involve "a lot of emotion" whereas my field of practice - commercial litigation - has long functioned under the illusion that "reason" prevails over "emotion" (an illusion I've long said arises from the apparent belief that controlled rage is not an emotion).
Everyone who serves on an ADR panel knows that, while valuable, membership does not assure a steady stream of work. If I had to make an educated guess (based on conversations with neutrals and discounting everyone's inflation of their own success) I'd say that far less than twenty percent of all ADR work was being done by the 20 percent of women on local ADR panels. I'm not going to suggest that implicit bias or the paucity of women attorneys with power to make ADR decisions in the AmLaw 200 is solely to blame for this state of affairs. I am, however, going to suggest that it plays a significant role in the choice of neutrals, a role which every male neutral I've spoken with denies and every female neutral I've spoken with confirms.
So Let's Look at Implicit Bias to Negative the Effect it May Be Having.
I'd be more than happy to learn that I'm wrong in this assumption -- lawyers - both men and women - tend to choose male neutrals over women neutrals based upon an implicit bias toward men and a misunderstanding about the power of mediation, i.e., that it's more about power than it is about influence. I wish I had statistics to provide on this question and I urge any academic looking at ADR to make further study of diversity among the ranks of ADR practitioners -- an issue that should be a priority in the legal academic community as the U.S. justice system becomes more and more privatized. In the meantime, take a look at mediator and negotiation trainer Diane Levin's posts on gender in ADR, including Disputant Perceptions of Gender: a Challenge for Women Who Mediate; Boys will be boys: gender still an issue; Eliminating Gender Bias in Mediator Performance Evaluations; and Bias Hard to Detect in Ourselves.
Anecdotally I can tell you that 80 to 90% of the attorneys who hire me to mediate their litigated disputes are male. I believe this has something to do with the fact that so few women survive the AmLaw200 race to partnership as explored in depth by Lauren Stiller Rikleen in her brilliant and comprehensive Ending the Gauntlet: Removing Barriers to Women's Success in the Law. (my review of that book here).
Neutralizing My Own Implicit Bias
I've been engaged in a conscious effort to neutralize my own implicit gender bias since I began reading Ms. Magazine in 1972. Yesterday, while writing the post on racism at my alma mater U.C. San Diego, I linked to the Harvard Implicit Bias Project and suggested that my readers take one or more of the Implicit Association Tests. I took the Gender - Career Implicit Association Test. According to Project Implicit, my data "suggest[ed] a moderate association of Male with Career and Female with Family compared to Female with Career and Male with Family." Here's the chart of all responses to date:
I'm right there in the majority of all association test takers - moderately associating women with family and men with career. This is my result despite the fact that I never had children; consciously associate myself far more strongly with career than I do with family; and, was actively engaged in the "second wave" women's movement beginning in my early twenties ('73) and ending when I started law school ('77).
This is the article all test takers are directed to after getting their results (link immediately above) and here's the bottom line from that article:
All of us want to act in an unbiased, inclusive manner. All of us want to do the right thing ethically. All of us want to come to the right position after studying a legal point. None of us wants to be accused of bias, of unethical behavior or of being wrong on a legal point. Once we see that implicit bias and the feeling of certainty we're right are hardwired into our brains, we can laugh at ourselves and not be so defensive anymore. The urge to laugh at a racist or ethnic joke doesn't make us bad people. It is a manifestation of implicit bias we can inhibit. The tightening of our jaw, fists and gut, when another lawyer objects to our position is a manifestation of our mental sensation of certainty.
Maybe we're right and maybe not. Maybe there are a dozen different ways to look at the same problem that could lead to a more peaceful, expeditious and fruitful resolution. We cannot get there unless we recognize that no matter how smart we think we are, we are susceptible at all times of being wrong and of being tricked by our own mental sensation of certainty.
In Twenty-Five Years of Commercial Legal Practice, I Never Hired a Woman Neutral
implicit bias based on racial and other stereotypes is universal. Implicit bias is unconscious. It dwells within the minds of even the most liberal and progressive lawyers. It operates in a subtle and insidious fashion.
I know I'm biased and I work against it all I can. I was raised in the 1950's and 1960's, before and during the great civil rights movements of the latter half of the twentieth century. Women were wives and mothers. Few of them worked. Dads were fathers, if at all, on special week-end days only. Dads worked. Mothers baked. Blacks (we called them Negroes) lived in another part of town. I never had a Black classmate until 1966 when I started high school. Mark, whose last name I forget, became captain of the football team. His father was a physician. Mine sold life insurance door to door until he went to night law school after leaving my mom and marrying someone with a University degree. No one in my family had attended, let alone graduated from, University.
I think of doctors and lawyers as male. Still. How frustrating is that? And yet, I am finally improving. Among the handful of neutrals I recommend there are now as many women as there are men. And I have high hopes for the generations that follow mine - generations in which women were in the work force; where dads parented as much as moms; and, where professional accomplishment for women was as expected as it is for men.
The only way in which implicit bias will prevail is if we deny its existence. By way of this lengthy post, I am suggesting that the paucity of women (to my own surprise) in ADR ranks is more historic artifact than it is the result of implicit bias. I do, however, believe more women in ADR's ranks would be working more often in the absence of implicit bias. I urge my readers to go to Project Implicit, take a few of their association tests and judge for yourselves whether unconscious biases are playing a part in driving your decisions.