The Gated Community: Risk Aversion, Race, and the Lack of Diversity in Mediation in the Top Ranks

Originally published in DISPUTE RESOLUTION MAGAZINE SPRING 2009 15

Over the past 20 years, we have been on the boards
and have been officers in a number of national
ADR organizations. Having experienced being
among the miniscule number of persons of color in meetings
involving important topics that affect the ADR field,
we have advocated for increasing diversity in ADR organizations
and in the field in general. Many of the attempts
to address the lack of diversity in the field have resulted
in various forms of targeted entry-level trainings that
have increased the diversity of entry level neutrals. Those
minority neutrals with experience and skills have often
been ignored by those wanting to enhance the diversity of
the field and have been overlooked by sophisticated ADR
users. As a result, we founded ACCESS ADR, a program
designed to break barriers of access to complex and highstakes
cases for highly experienced neutrals of color. This
article discusses the creation of ACCESS ADR, the challenges
to its launching, and what we hope the program
can do for the ADR community.

In 2002, we both were members of the American Bar
Association Section of Dispute Resolution’s Council. The
authors, in collaboration with then-Section Director, Jack
Hanna, created the Forum for Women and Minorities in
Dispute Resolution. The Forum took place as a preconference
activity prior to the American Bar Association
Section of Dispute Resolution’s Annual Meeting in San
Antonio, Texas, in 2003. The Forum dialogue revealed
three themes underlying the lack of diversity in the pool
of ADR service-providers who are called upon to arbitrate
or to mediate high-stakes or complex commercial
disputes.

The first theme was that the ADR user-community
acknowledged that there was a lack of diversity in the
pool of persons whom they regularly call upon for arbitration
or mediation services, and further acknowledged the
need to correct this imbalance.

The second theme was the acknowledgment by the
ADR user-community that many of those who are responsible
for the selection of arbitrators and mediators are
lawyers who are responsible for the representation of their
clients’ interests. As such, they typically avoid selecting
an unknown mediator without an assurance that the
mediator has the perceived requisite knowledge, skill, and
experience. To decide otherwise would, in the minds of
many lawyers, compromise the interests of their clients,
something that their ethical obligations do not permit.
That risk aversion translates into the decision not to call
upon the services of a neutral whom the lawyer does not
know, or one whom the lawyer cannot easily learn about
from a close colleague.

The third theme was that mediators from racial and
ethnic groups that are underrepresented in the ADR field,
no matter how experienced, are usually unknown to the
relatively small group of lawyers who are responsible for
selecting arbitrators and mediators. Although arbitration
was included in the dialogue, much of the discussion centered
around mediation. The initiative that resulted from
the forum dialogue thus also focused on mediation.

The Establishment of ACCESS ADR

In an effort to respond to these three themes, we conceived
of a project that would expand practice opportunities
for minorities by bridging the gap between the users
of ADR services and experienced mediators from diverse
racial and ethnic groups. The
envisioned project, which
came to be named ACCESS
ADR, would permit the users
of mediation services to obtain
an in-depth knowledge of the
skills and abilities of highly
experienced mediators from
various racial and ethnic backgrounds.
The project would
be supported by an advisory
board of ADR users and
resource providers. Among
other things, the advisory
board would provide guidance
to the program. In addition
to providing some financial
assistance, various members of
the advisory board also would
serve as the source for mediation
cases assigned to a select group of mediators from
diverse racial and ethnic groups, more specifically, the
ACCESS ADR Fellows.

The board determined the criteria for the selection of
the experienced mediators who would become fellows.
The fellows would be exposed to a group of ADR serviceusers
by mediating cases provided by those users for a
period of about 18 months (the fellowship period). During
that period, each fellow would be evaluated by the parties
for whom the fellow would have provided mediation services.
The advisory board also was to play a feedback and
evaluative role during the fellow’s tenure in the program.

At the end of the fellowship period, the fellow would
be expected to have developed a reputation for excellence
among those users with whom he or she would have had
experience and exposure. The professional relationship
and the traditional word-of-mouth
system of referral and
reference would be expected
to work for the now exfellow
as much as it may have
worked against her or him
prior to tenure in ACCESS
ADR. Each fellow in the program
also was asked to make a
formal written commitment to
bring a less experienced person
along in an informal mentoring
program.

Initial support for the
start-up of ACCESS ADR
came from the JAMS
Foundation, the ABA Section
of Dispute Resolution, and
the International Academy
of Mediators. The JAMS
Foundation and the William and Flora Hewlett
Foundation awarded monetary grants to assist with the
cost of recruitment, interviewing, and setting up the
administrative structure. The Center for Alternative
Dispute Resolution, located in Greenbelt, Maryland,
became the administrative home for ACCESS ADR.

The Operation of ACCESS ADR

At the August 2005 ABA Annual Meeting in Chicago,
ACCESS ADR formally announced the inaugural class
of ACCESS ADR Fellows who received a formal orientation
to the program later that month. In January 2006,
the fellows attended a mediation and arbitration training
workshop for new JAMS panelists. In the spring of
2006, at the request of an ACCESS ADR Advisory Board
member, the fellows prepared client presentations for
the purpose of providing a vehicle for board members to
introduce the fellows to the appropriate attorneys who
select the mediators for their cases.

From June 2006 to June 2007, ACCESS ADR received
several serious case inquiries and two case assignments.
The advisory board genuinely believed in the program’s
vision and equally believed that the goals of the program
were obtainable. There is no doubt that the board members
remained committed to the vision, but as time went by,
they became less certain about whether the goals could be achieved. They came to experience and to more deeply
understand two key obstacles to access to the business/
commercial ADR arena, namely: (1) that neither the ADR
users nor their representatives know the experienced mediators
from racial and ethnic groups, and (2) that the representatives
of ADR users, many of whom are lawyers, tend
to avoid the real and the perceived risks associated with
the selection of a mediator unknown to the representative
or unknown to a close colleague of the representative.

Despite the ADR users’ acknowledgment of the need to
increase the lack of diversity in the mediation pool, these
obstacles negatively impacted the ability of the ACCESS
ADR Advisory Board, who were well known to the user
community, to solicit cases for
the fellows. Invitations to the
user community to participate
were made by ACCESS ADR
Advisory Board members.
That knowledge and affinity,
notwithstanding, the representatives
of ADR users would
not risk selecting an ACCESS
ADR Fellow. We think this
was because neither the ADR
users nor their representatives
had first-hand experience with
the fellows or with ACCESS
ADR. It would appear that the
risk aversion was expanded
from not knowing the mediator
to include not knowing
ACCESS ADR. To the ADR
users and their representatives,
ACCESS ADR represents unknown mediators.

Lessons Learned and the Restructuring
of ACCESS ADR

Under the circumstances described above, it was subsequently
determined that the success of the program
will not be realized immediately. In the fall of 2008, the
program was restructured with a “microuser” focus to
obtain cases for the fellows. Instead of attempting to gain
access to the targeted market through a broad array of
users, ACCESS ADR is now focusing on identifying a
smaller cadre of users committed to utilizing the services
of the fellows. Under this revised microuser structure, it
is believed that ACCESS ADR will continue to be an
important and viable experiment in an effort to achieve
greater diversity in the ADR field.

It is important to reiterate that ACCESS ADR is a
program for experienced professional mediators who have
had mediation practices for more than five years and
who receive market-rate compensation for their services.
They possess the skills, the knowledge, the ability, and
the experience to handle high-stakes and complex cases.
These have been and will continue to be prerequisites
to qualify as an ACCESS ADR Fellow. The high level
of experience of the fellows has been emphasized in presentations
about ACCESS ADR, on the ACCESS ADR
website, in related ACCESS ADR promotional material,
in the ACCESS ADR application, and in the ACCESS
ADR selection criteria.

Reviewing the experience and expertise of the
ACCESS ADR Fellows, the goals of the program and the
outreach of the advisory board, it seems as if the ADR
users, the mediators of color and the ADR user representatives,
who select the mediators to mediate cases,
are working in different communities. There appears,
moreover, to be little or no overlap between those communities.
In fact, we have described the situation as being
similar to ADR users residing
in a gated community. Before
a mediator can enter the community
she must show her credentials
to the security guard
at the gate, and she must be
on a preapproved guest list or
receive on-the-spot approval
from a community resident.
In this scenario, mediators
of color are in line with others
seeking to gain entrance
to the gated community in
which the ADR users reside.
The ADR user representatives
are the gatekeepers denying
entrance to those who are not
on the preapproved list or to
those who do not have the
credentials to gain access.

One author’s look at the private mediation market
lends some credence to the gated community concept.
The author suggests that private mediators work in a
“winner-take-all market” similar to that of professional
entertainers like Broadway theater actors, where the stars
win big, everyone else is far behind, and “[t]he difference
in pay received by the [stars] is almost always more than
proportional to the differences in their ability to sing and
dance.”1 Similarly, the difference in pay received by the
“top” mediators is almost always far more than proportional
to the difference in their ability and that of the tier
of next best mediators.

One implication of this winner-take-all economic
analysis is that the user of mediation services is almost
always going to select the most well-known mediator for
the high-profile/high-stakes case. The reason is not always
that the most well-known mediator is the “best” mediator.
In fact, the winner-take-all theory suggests, what we knew
and what ACCESS ADR is attempting to address, namely
that the difference between the experience and skill of
workers in the top market level and those in the second
market level is not significant in all cases.2 The reason for
the nonselection of those in the second market level may
be as noted by one of the mediators interviewed by the
cited author. “[W]hen an attorney with a high-value case
refers it to mediation, he is ‘never going to be criticized
for selecting a well-known mediator.’ ”3

The experience of ACCESS ADR would appear to bear
out these implications. Thus, one of the lessons learned or
perhaps relearned is that whatever barriers are faced by the
players in the private marketplace, those barriers, and a second
echelon of barriers, further negatively affect the ability
of the person of color to gain access to the high-value cases.
Inasmuch as risk-aversion and market forces tend to influence
the gatekeeper to go with the “well-known” mediator,
that choice, which more often than not excludes mediators
or color, may not be intentional. However, the subjective
criteria that are often used to
identify a good mediator can
influence the selection process
and can perpetuate the success
of those who are on the preapproved
list and discourage those
who are not.4 In addition, there
is recent evidence that racial
and ethnic bias colors the evaluation
of minority candidates.5

It is accepted that mediators
of color face the same
risk-aversion obstacles experienced
by their majority colleagues.
That is the playing
field for better or for worse.
The credentials of mediators of
color, however, are not always
viewed in the same light as their majority colleagues.
Under these circumstances, then, even if the ADR user
representatives were to look to the “understudy” class
of mediators (i.e., those equally as well qualified as the
“star”), the mediators of color are likely to face at least
two additional obstacles or barriers. They are unlikely
to be known by the representative (the gatekeeper), and
their race may alter the evaluation of their credentials.
They, therefore, may never be considered for selection or
if considered, not selected.

In a gated community, the residents, not the gatekeepers,
determine who is on the preapproved list to enter the
community and who may enter on an ad hoc basis. In this
regard, we believe the ADR users, who are the residents
of the ADR user community and who have acknowledged
and are concerned about the lack of mediator diversity,
have to get involved and play an active role in determining
the diversity of their mediation panels. In fact, they
can and should demand that their representatives maintain
and use a diverse pool of mediators.

Removing Artificial Barriers

The objective of ACCESS ADR is not to artificially create
a market in which mediators of color have an easier
time of competing in a market in which only a few survive.
Its objective is, however, to remove the artificial
barriers to access. The authors and creators of ACCESS
ADR remain undaunted by the challenges faced in getting
traction for the program. Some believe that the
election of Barack Obama as the first African-American
president of the United States has ushered in a new era
of hope and commitment to the removal of barriers. That
same commitment can be transformed into the energy
necessary to remove the artificial barriers between the
ADR users and the community of experienced neutrals of
color. We continue to have a belief that the user community
and neutrals of color can find a way to one another.
Through tenacity and a commitment to the fundamental
values that gave rise to the field of dispute resolution, an
effort like ACCESS ADR can
succeed.

Those involved in getting
the ACCESS ADR started
and operational also have
learned at a deeper level about
the difficulties in such an
effort. The realization of the
difficulty is not simply a sad
refrain understood all too well
by those who have not had
access. The realization also is
a call to redouble the effort
to break down the barriers, be
they conscious or unconscious.
The importance of ACCESS
ADR to the ADR community
is that it is an ambitious, yet
realistic, effort to deal with a problem of access that seems
intractable. With boldness of vision and the strength of
courage, what seems intractable becomes a mere problem
to solve.

Endnotes

1. Urška Velikonja, Making Peace and Making Money: Economic
Analysis of the Market for Mediators in Private Practice, http://works.
bepress.com/urska_velikonja/recent.rss (April 9, 2008).
2. Id. at 17.
3. Id. at 17.
4. Id. at 16, 17, and 19.
5. Arin N. Reeves, Colored by Race: Bias in the Evaluation of
Candidates of Color by Law Firm Hiring Committees, The Brief, Spring
2008.
The ADR user representatives
are the gatekeepers denying
entrance to those who are not
on the preapproved list or to
those who do not have the
credentials to gain access.

                        author

Homer LaRue

Professor Homer LaRue teaches lawyering skills, civil procedure, professional responsibility, and dispute resolution. Professor LaRue is one of the founding faculty at the City University of New York School of Law and has experience with the development of a nationally recognized first year clinical experience at the University of Maryland.… MORE >

                        author

Marvin E. Johnson

Marvin Johnson is a nationally recognized mediator, arbitrator and trainer with over 27 years of dispute resolution experience. He is the Founder and Executive Director of the Center for Alternative Dispute Resolution and previously was Associate Professor at Bowie State University. Mr. Johnson received his Doctorate of Jurisprudence from Catholic… MORE >

Featured Mediators

ad
View all

Read these next

Category

The Way Mediators Ask Questions Is Absolutely Front And Centre To What We Do

When I'm training I often hold up an ordinary object, whatever happens to be about like a stapler or a chair, and ask people to fire questions at me about...

By Geoff Sharp
Category

Excuse-Not-To-Mediate No. 35(b): I Got A Slam Dunk

From the Business Conflict Blog of Peter Phillips.My mentor at CPR Institute, former Olin General Counsel Peter Kaskell, once wrote an amusing article called something like “The 10 Worst Reasons...

By F. Peter Phillips
Category

Mediating ZOPA

PGP Mediation Blog by Phyllis G. Pollack In the last few days, I have mediated a couple of cases in which ZOPA took center stage. ZOPA stands for Zone of...

By Phyllis Pollack

Find a Mediator

X
X
X