Try Someone New: Mediator Shortlists, Arbitrator Panels, and the power of choice as a tool for increasing diversity in Dispute Resolution.
By Ana Cristina Maldonado
If you represent clients in mediation or in arbitration, you have proposed, selected, and hired neutrals. Stop and reflect for a moment on the last five to ten years: How diverse is the group of neutrals that you have worked with?
Your answer may depend on the type of law you practice. Family mediators skew female. County mediators are quite diverse. But if you practice in commercial civil law, particularly on high dollar value cases, your arbitrators and mediators are most likely all white men.[1]
According to the American Bar Association’s (ABA) Report on Resolution 105: “Dispute Resolution [is] a segment of ‘legal’ services that has been described as ‘arguably the least diverse corner of the [legal] profession.’” [2]
Florida’s pool of lawyers and mediators also reflects this lack of diversity, as illustrated in the table[3] below.
The large national panels are heeding the ABA’s call and working to diversify their rosters of neutrals. JAMS and the American Arbitration Association (AAA) have all sought to increase their rosters to reflect a metric[4] of 30% diverse neutrals, recruiting new panelists and tracking the rates at which they are hired.
You might be thinking “So what?” Choosing a neutral is one of hundreds of decisions you make in a day. Maybe you’ve delegated the choice to your paralegal from a curated shortlist of effective and experienced neutrals. Maybe you rely on colleagues. Today, I ask you to stop and reflect on your habitual neutral selection process.
To prompt that reflection, here are some stories:
- An African American attorney, recently trained as a Florida Supreme Court Certified Circuit Civil mediator, observed that in 20+ years of practice, he never had a mediator who looked like him. He thought to pursue mediation work only recently, when after a case, the mediator told him that he would be good at it.
- A creative and transformative mediator (and eminent retired African American lawyer) shared that throughout his career, he never served as mediator on a case where there was not at least one black person. While he has ably served his community, many people outside it will never know what they have missed.
- A white female judge from Portland, Oregon described how there were ZERO mediators of color in her state. Acknowledging her city’s “woke” reputation, she also referenced the exclusion laws that banned black people from being in Oregon Territory, which were enshrined in Oregon’s state constitution from its inception until 1926.[5] The judge described organizing a mediator training for minority neutrals and reported that, as a result, there are now six diverse mediators working in her state.
These stories put the issue in human terms, in the context of our institution: dispute resolution within the legal system.
The big picture emerges from choices on two levels: policy and case-by-case.
So what should we do?
- Increasing the diversity of our bench is a long-standing policy goal. It’s time to set the same goal for neutrals and take action. Firms (both mediation rosters and law firms who hire mediators) should implement the 30% metric and measure progress.[6]
- If you are a diverse attorney: add skills as a neutral to your toolbox and get trained as a mediator or arbitrator. Market yourself to your community and beyond. Build your skills through experience.
- If you are an individual attorney, and upon reflection, your mediator or arbitrator short list could be more diverse: Look beyond your usual list and try someone new. Be intentional. Use diverse neutrals not only in cases that serve their respective communities, but in cases beyond.
When it comes to increasing diversity in dispute resolution, individual attorneys – YOU – have influence and control. You can’t choose your judge, but you can choose your neutral. Your choice matters.
Ana Cristina Maldonado is Chair Elect of The Florida Bar’s ADR Section (2023-2024) and was appointed in 2023 by the Chief Justice of the Florida Supreme Court to the Mediator Ethics Advisory Committee (MEAC). A Florida Supreme Court Certified Mediator in Circuit Civil, County, Dependency and Family and a primary trainer with over 2,000 mediations, she currently teaches at Nova Southeastern University’s Shepard Broad College of Law.
[1] https://www.americanbar.org/groups/dispute_resolution/resources/aba-resolution-105/
[2] Id.
[3] Table prepared by Christopher Shulman for a CLE held at Nova Southeastern University on March 6, 2024. The event video is available at https://www.youtube.com/watch?v=dylE6msdk6c.
[4] A metric is not a quota: it’s a measurement that ensures accountability, tracks progress, and leaves open the option to choose.
[5] Author’s note: My mother’s family is from Oregon. It took me sitting on an ADR panel with this Judge to learn this fact.
[6] Here are some resources if you don’t know where to start: