CCBJ: What is the American Arbitration Association (AAA) doing to add diverse arbitrators and mediators to its panel?
Sasha Carbone: As part of our shared commitment to diversity and inclusion, we are actively recruiting women and racially and ethnically diverse arbitrators and mediators. The AAA has been engaged in a multiyear effort to increase its panel diversity, and the executives of our organization are actively recruiting diverse candidates who meet the criteria for our panels. It’s one of our organizational goals, and we look at those numbers on a quarterly basis and an annual basis to see how we are doing. Last year, 51 percent of our new panel members were women or racially and ethnically diverse people, which is an increase over the previous two years.
Another important aspect of our recruitment process is outreach. Over the past several years, the AAA has built coalitions with national and local organizations, including racially and ethnically diverse bar associations, to provide training and create opportunities for diverse practitioners to get onto our panels.
Historically, what initiatives has AAA put in place to increase diversity in the field of alternative dispute resolution (ADR)?
We have been advancing diversity and inclusion in ADR since at least the 1960s, when we established a dispute settlement program to help ease crises in cities through arbitration and mediation. Our focus on panel diversity also dates back many years. For example, we were a co-sponsor of the National Women’s Arbitrator Development Program in the late 1970s. We also co-sponsored aminority labor arbitrator development program with Cornell and Hofstra universities in the 1980s. In the past 10 years, we put into place many of the initiatives that are still active today – working on them, improving them, seeing what works andwhat doesn’t. One of the things that is really important about our diversity and inclusion effort is that we track it. We develop metrics to make sure that we are achieving our goals.
Another significant AAA program that I want to highlight is one that we developed to reach out and further diversify the pipeline of up-and-coming ADR professionals. That’s the Higginbotham Fellows Program, which we started in 2009 in honor of Judge A. Leon Higginbotham Sr. who was a prominent African American civil rights advocate. He was the first African American to serve as a judge in the U.S. District Court for the Eastern District of Pennsylvania, prior to his appointment to the U.S. Court of Appeals for the Third Circuit. It’s a very important program of ours, and we wanted to name it after someone who tirelessly championed African Americans and racially and ethnically diverse individuals.
This program provides training, mentorship and network opportunities to ADR professionals from groups that have historically not been included in meaningful participation in the field. The fellows are matched with AAA panelists as mentors in the areas of their interest, and the mentors provide networking opportunities and advice during the fellowship year. Mentorship has been really key in helping the fellows reach the next level of their careers. Also, importantly, the program provides a pathway to get onto the AAA’s roster.
Some of the fellows who participate are interested in becoming advocates in ADR, and others are interested in becoming arbitrators and mediators themselves. This provides a way for them to network, get to know the AAA and ultimately apply to be on our roster. Since 2009, the Higginbotham Fellows Program has had more than 150 fellows, making it one of the foundations of our diversity effort. In fact, 43 fellows have been added to the AAA roster of arbitrators.
We also have a program called the Diverse Student ADR Summit, which we launched in 2019. It’s a one-and-a-half-day ADR program that introduces diverse law students to ADR and gives them an in-depth understanding of what it really takes to become a successful arbitrator and mediator. The presenters are experienced ADR professionals and litigators from a variety of backgrounds. We’ve received significant interest in the program, and the applicants have been from all over the country and overseas as well. Successful applicants were all provided with a stipend to cover their travel and lodging expenses.
What does AAA do to help ensure that diverse arbitrators are presented to the parties for potential selection?
This is another important focus area for us.. We are committed to increasing diversity on the arbitrator lists that are provided to parties. We have developed case management programming to generate diverse lists, while ensuring that the parties’ qualifications are met. This part of our diversity effort is extremely important, because recruitment is only one piece of the puzzle. If we have diverse arbitrators and mediators on our roster but they’re not on the lists for parties to select from, obviously we can’t get to the ultimate goal of having those diverse arbitrators serve on arbitration panels.
. The program’s coding also allows us to figure out where we have recruitment needs. If we are not able to create diverse lists, for any reason, in a particular area of the country or with the particular qualifications that the parties are seeking, it prompts us to know where we need to recruit more. “In 2020, our diverse list process generated approximately 30 percent diversity on average.
How does AAA define diversity?
Historically, the AAA has focused on women and racial and ethnic diversity, but we define diversity more broadly to include other groups that are underrepresented in the ADR field as well.
What are the benefits of selecting a diverse arbitrator?
We believe that there are many benefits. Having diversity of thought and people from different backgrounds improves decision-making – and, importantly, it increases the public trust in the process.
What can corporate counsel do to increase diversity on the lists of arbitrators that they are provided?
Advocates and their parties are the ultimate decision makers in terms of selecting the arbitrators and mediators for their case. Providers like the AAA have the ability to recruit diverse arbitrators and provide diverse lists, as we’ve been discussing, but the parties using our services are the ones who make the actual selections and determine who will serve on their case. So, one thing that counsel can do is to talk to their clients early on about the value of considering diverse lists of arbitrators. They can also engage in discussions with opposing counsel about the composition of their panel – again, early in the process, before the lists are generated – and then communicate with the arbitration provider about their interest in having a diverse slate of candidates.
As I said, this should take place early in the process, and it should be collaborative with the other party in the dispute. I will also say that I think the AAA’s focus on diversity and inclusion in ADR can serve as a complement to the diversity commitments and pledges that many companies are making overall. One way to turn those pledges and values into action is by asking for diversity in their arbitration panel.
How is the AAA focused on diversity and cultural awareness within the broader organization, beyond the roster?
There are a couple of aspects to this. First, the AAA’s governance structure fosters and supports diversity in the ADR field. We have an advisory component, composed of legal and ADR professionals who provide insight into the marketplace and guidance in terms of what the best practices are in this area. We also have an internal committee that consists of executives and staff. So, we coordinate initiatives and collaborate with other organizations, as well as internally.
Also, more broadly, in 2017 we launched an important companywide staff training curriculum to create a greater level of comprehension about diversity and inclusion. It includes 12 hours of training that provides the staff with opportunities to examine things like implicit bias and conflict resolution – as well as information about the organizational benefits of promoting a diverse and inclusive workplace.
More recently, we established an employee resource group that is focused on diversity, equality, and inclusion in the workplace to help our employees build and support cultural awareness, sensitivity, and understanding.
These and other initiatives are important to our organizational performance and success, and it is notable that 96% of our employees feel that the AAA enables a culture of diversity.
What is the AAA doing to encourage young, diverse lawyers to consider becoming an arbitrator or mediator?
I already mentioned the Diverse Student ADR Summit, which is something that we want to expand upon. Also, with respect to the Higginbotham Fellows Program, we are starting to develop a post-program curriculum to continue to engage with professionals who are thinking about becoming an arbitrator or mediator.
Beyond this, AAA-ICDR Foundation’s Diversity Scholarship fund grants diverse law students/professionals with up to $2,000 of financial assistance towards participation in a degree program or fellowship in alternative dispute resolution or attendance at a well-recognized conference. This helps to encourage diversity and inclusion within the field of ADR by supporting the pursuit of knowledge and skill development through training experiences that encourage inclusive leadership growth in the field of ADR.
Additionally, the AAA collaborates with bar associations and law schools to highlight the careers in ADR and help students understand the pathways into this field.
Published January 24, 2022.
