Minority ADR Neutrals: The Invisible Class - American Bar ...

Minority ADR Neutrals:
                      The Invisible Class
By Alex Green IV
It should be unsurprising that alternative dispute resolution is largely unreflective of the
communities that it ostensibly serves. To the extent that ADR is a process, it is a court-connected
process, and as is true of many other fields, the underrepresentation of minorities in ADR is
arguably a microcosm of their lack of representation in the legal profession. The American Bar
Association’s (ABA’s) 2020 Profile of the Legal Profession, a compilation of various statistics on
the legal profession summarized this lack of representation: “[w]hile the number of lawyers
nationally has grown faster than the U.S. population, this growth hasn’t been spread evenly across
races and ethnicities.” 1,2

 Despite the fact that ADR includes, by way of illustration and not limitation, arbitration,
facilitation, mediation, and summary jury trials, it operates within the context of this stark reality
and, consequently, is not only plausibly, but also likely reflects the underrepresentation and
cultural homogeneity that characterizes the practice of law. Indeed, there are persistent and
seemingly intractable barriers that thwart diversity “that for the most part are not intentional, and
are the result of unconscious bias. However, [this is not to] suggest that pernicious intentional
discrimination and genuine racial prejudice do not exist. But with an increasing public awareness
of anti-discrimination laws, much overt discrimination has gone underground, so to speak.” 3 The
pool of “acceptable” candidates to serve as ADR neutrals is too often packed with well-known and
established retired judges, attorneys, academics, and other professionals who already have heavy
caseloads and high hourly rates. “Even today, only 3.9% of lawyers in the United States are
African-American (as compared with 12.3% of the U.S. population), and only 3.3% are Hispanic
(as compared with 12.5% of the U.S. population).”4

According to David A. Hoffman, a lawyer, mediator and arbitrator who teaches mediation at
Harvard Law School and Lamont E. Stallworth, a professor at the Institute of Human Resources
and Employment Relations at Loyola University, there are three main remedies to the lack of

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diversity in ADR (in no order of importance): “1. Creating national and regional panels that
expand the opportunities for minority mediators and arbitrators and assist with recruitment and
mentoring;” 2. Increasing the awareness of cultural sensitivity and unconscious bias in selecting
neutrals; and 3. Instituting programs of accountability to motivate selectors to obtain a broader
range of experience and demographic background. 5

None of these proposed solutions should be surprising as they have been parroted in one way or
another and ad nauseum by countless thought leaders on improving diversity levels not only within
the ADR field but throughout the legal profession. Still, although diversity remains an ostensible
goal, the implementation of measures that will supposedly promote diversity and, therefore,
achieving what seems to be the desired ideal of diversity in ADR has been unsuccessful possibly
because ‘ADR providers seek to add to their rosters of arbitrators, mediators, and fact finders the
type of people that they think their customers will want to use, or with whom they feel more
“comfortable.”’6

Accordingly, accountability for diversity outcomes is imperative. In a study published in 2006
analyzing data on Equal Employment Opportunity (EEO) initiatives designed to increase diversity
in 708 workplaces, as well as the retention and promotion of women and minority employees
covering 1971-2002, ‘[t]he researchers concluded that the only initiatives that produced consistent
results were the ones that established accountability for diversity outcomes. These included
affirmative action plans, diversity committees, and diversity managers. They all experienced
diversity increases “across the board.”’7 Yes, there are almost certainly other factors that contribute
to the homogeneity of the ADR profession and the legal profession; however, there is likely as
much conscious as unconscious bias or explicit as implicit bias as “[t]o acknowledge stereotypical
thoughts or feelings of prejudice is not, necessarily, to acknowledge out-and-out racism, classism,
religious intolerance, etc.”8 Discrimination against minorities seems to be embedded within the
ethos of business community. Admittedly, “[e]thnicity or gender alone is clearly inappropriate
criterion for selection of any arbitrator or a mediator. But ignoring those attributes will not yield
the result that corporate law departments say they want to achieve.”9

Floyd D. Weatherspoon, Professor of Law and Director of Minority ADR Initiatives at Capital
University Law School in Columbus, Ohio has observed that although opportunities in the ADR
field have grown, they have not grown for minorities by way of selection and scheduling.10
When ADR neutrals are not reflective of the communities that they serve, it creates discord and
distrust among disputants. “The absence of minority neutrals on ADR rosters, panels, and court
appointments stems from a system of exclusion and invisibility.”11 Courts are unsympathetic to
the challenges of diversifying the courts themselves or ADR rosters. White, male neutrals are
typically selected for the more lucrative rosters such as labor, construction, and commercial
disputes. Whereas minority mediators are often placed on family and domestic rosters, juvenile
programs, and community and volunteer rosters.12

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Tragically, although “[t]he major ADR providers and organizations have offered and developed
many initiatives to increase the presence of minorities on their rosters . . .the number remains
relatively small after years of promoting diversity in the ADR field.”13 While there are few studies
that have addressed the question why the numbers of minority neutrals remain relatively small
despite the explosion of the use of ADR processes and commitment on the part of ADR providers
to increase the numbers of minorities on their rosters of neutrals, the Barriers Research Study,
conducted at John Jay College of Criminal Justice of the City University of New York revealed a
number of “informational and professional barriers,” “social and institutional barriers,” and
“economic barriers.”14 Additionally, while not a scientific study, “surveys completed and collected
during Capital University Law School’s ADR conferences and institutes reveal that minority
neutrals face such barriers as lack of mentors, stealth selection procedures, lack of information
regarding ADR opportunities, and superficial qualification requirements.” What more, “in
addition to the barriers mentioned above, other factors explain why minority neutrals are rarely
listed on rosters, and even if listed, are rarely selected.”15

Judge Timothy K. Lewis spoke of an incident he witnessed while attending a conference of
corporate general counsels where he was hosting a seminar on diversity.16 An attendee raised a
question as to whether there would be a tradeoff in quality if diversity became more of a priority.
The attendee stated: “You know, this sounds very nice and is all well and good, but what are we
supposed to do as a result of the drop off in quality we’re going to have to deal with from hiring a
minority arbitrator or mediator?”17 For many minorities, the use of the word “qualified,” is code
among non-minorities who are unwilling to consider minority professionals, as opposed to a
genuine lack of qualified minorities to perform the job – a pretext. While using code words may
be an example of an implicit bias against minorities, explicit discrimination remains omnipresent
in the selection of minority neutrals. Unfortunately, “[e]ven when highly experienced minority
neutrals gain placement on ADR rosters, they rarely are scheduled to serve.”18

The material referenced above from Floyd D. Weatherspoon’s essay titled The Impact of the
Growth and Use of ADR Processes on Minority Communities, Individual Rights, and Neutrals was
written in 2011 yet it is 2021 (10 years later) and the text from 2011 could be rewritten almost
verbatim in 2021 as it was in 2011. While there are an endless number of explanations for this
decade-long status quo, it seems that one of the most preeminent and persuasive may be that the
“blatant race and national origin discrimination,” which may also explain why minority neutrals
are excluded, are issues still “ignored or deemed too sensitive to address.”

It is past time to address these issues in earnest because they are too sensitive to ignore!

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Alex Green IV is a graduate of Detroit Mercy Law School (Detroit, MI) and has a Master of Arts
in Dispute Resolution (MADR) degree from Wayne State University (Detroit, MI). He is also a
trained and court-approved general civil mediator and has completed training to become a
Domestic Relations mediator. Given that Alternative Dispute Resolution (ADR), while not a new
concept, is gaining in popularity and widespread implementation, Alex has sought to collaborate
with stakeholders and decisionmakers to be part of the process in determining best practices within
this field. Alex currently works in private practice handling mostly civil matters and currently

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works as a Staff Attorney with the Mediation Tribunal Association, Inc., in Detroit, MI, which is a
non-profit that provides a continuum of ADR services but is the exclusive provider of case
evaluation for Wayne County Circuit Court – the most populous county in the State of Michigan.

1   Laura Bagby, ABA Profile of the Legal Profession: Diversity and Well-Being. 2Civility (August 13, 2020),
https://www.2civility.org/aba-profile-of-the-legal-profession-diversity-and-well-being/.
2 As of Jan. 1, 2020, there were 1,328,692 active lawyers in the U.S., up roughly 10% in the past decade. However,

primary drivers of growth continue to be white men and, to a lesser extent, white women. These groups remain
overrepresented in the legal profession compared to their presence in the overall U.S. population, according to the
ABA National Lawyer Population Survey. Currently, 86% of lawyers are non-Hispanic white people. In
comparison, roughly 60% of U.S. residents are non-Hispanic white people. While the percentage of female lawyers
has increased slowly over the past decade (31% in 2010 vs. 37% in 2020), recent gains among people of color are
minimal. Just 5% of all lawyers are Black, the same percentage as 10 years ago, while 13.4% of the U.S. population
is Black. Comparably, 5% of all lawyers are Hispanic, up from 4% a decade earlier, although 18.5% of the U.S.
population is Hispanic. Two percent of all lawyers are Asian, up only 0.4% from 10 years ago, while almost 6% of
the U.S. population is Asian.
3 David A. Hoffman and Lamont E. Stallworth, Leveling the Playing Field for Workplace Neutrals: A Proposal for Achieving

Racial and Ethnic Diversity, 39 DISPUTE RESOLUTION JOURNAL by American Arbitration Association, Inc. (February/April 2008).
4 Id. at 40.
5 Id. at 42.
6 Id. at 40.
7 Id. at 44.
8 Marjorie H. O’Reilly, Race, Culture & Mediation: Does the informality of the setting create an environment in which racism

and cultural insensitivity may enter unchecked? 27 FAMILY ADVOCATE 2, 37-39 (Fall 2004).
9 F. Peter Phillips, Diversity in ADR: More Difficult to Accomplish than First Thought, 15 Disp. Resol. MAG. 14, 15 (2009).
10
   Floyd D. Weatherspoon. The Impact of the Growth and Use of ADR Process on Minority Communities, Individual Rights, and
Neutrals, 39 CAP. U. L. REV. 789, 800-802 (citing F. Peter Phillips, Diversity in ADR: More Difficult to Accomplish than First
Thought, 15 DISP. RESOL. MAG. 14, 14-15 (2009)); see also Sharon Press, Court-Connected Mediation and Minorities: A Report
Card, 39 CAP. U. L. REV. 757 (2011) (noting that minority mediators still suffer from a lack of work) (emphasis added).
11 Id. (citing Smith v. Am. Arbitration Ass’n, 233 F.3d 502, 504 (7th Cir. 2000); Olson v. Am. Arbitration Ass’n, 876 F. Supp.

850, 850 (N.D. Tex.), aff’d, 71 F.3d. 877, 877 (5th Cir. 1995) (unpublished table decision); see also Michael Z. Green, An Essay
Challenging the Racially Based Selection of Arbitrators for Employment Discrimination Suits, 4 J. AM. ARBITRATION 1, 25-29
(2005) (providing a detailed analysis of both Smith and Olson) (emphasis added).
12 Id. at 801-02 (citing See Floyd D. Weatherspoon, Eliminating Barriers for Minority ADR Neutrals, ACRESOLUTION MAG. 32,

32 (2006)).
13 Id. (citing See Hoffman & Stallworth, supra note 29, at 3-4; AAA Leon Higginbotham, Jr. Fellows Program Application Form,

AMERICAN ARBITRATION ASS’N (2010), http://www.adr.org/si.asp?id=5924; ABA Mission and Goals, ABA DISPUTE RESOLUTION
SECTION, http://www.abanet.org/about/goals.html (including diversity in its mission statement) (last visited Mar. 30, 2011);
Award for Outstanding Contribution to Diversity in ADR, CPR (2010).
14 Id. (citing Volpe et al., supra note 23).
15 Weatherspoon, supra note 10, at 803.
16 Id. (citing Judge Timothy K. Lewis, Keynote Speech at Capital University Law School (May 18, 2010) (speech on file with

author). (emphasis added).
17 Id. (citing Judge Timothy K. Lewis, Keynote Speech at Capital University Law School (May 18, 2010) (speech on file with

author). (emphasis added).
18 Id. (citing See Hoffman & Stallworth, supra note 29, at 4) (“The experience if many minority neutrals is that even though they

are ‘qualified’ and on the permanent panel, they are either not selected or picked less often than white neutrals to hear actual
cases.”).

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