Changing The Face of ADR: A Call for Greater Diversity Among the ADR Profession.

• Author: Shulman, Christopher M.

Mediation and arbitration are the most commonly used forms of alternative dispute resolution in Florida. In both processes, a neutral professional either assists the parties to explore a negotiated settlement of their pending dispute (mediation) or makes the decision for the parties regarding the dispute (arbitration). As the term "neutral professional" suggests, ADR professionals are required to be impartial as to the dispute and the disputants. (1) There is a growing concern that disputants' perception of the fairness of the ADR process may be tainted by implicit or other race- and ethnicity-based biases. (2)

In this article, we first examine the (lack of) diversity of the ADR profession, especially as compared to the Florida legal community and Florida's general population. We will then discuss why underrepresentation of racial and ethnic minorities and of women among the profession can negatively impact perceptions of fairness among consumers of ADR services. Finally, we offer some suggestions to address the concerns going forward.

What Does the ADR Cadre Look Like?

According to the U.S. Census Bureau, as of January 2023, just slightly more than half of all Florida adults (50.8%) are women; likewise, 52.7% identify as Caucasian (not Hispanic), with the balance comprised of individuals who identify as Caucasian (Hispanic), African American (regardless of whether Hispanic), American Indian/Alaska Native, Asian, Native Hawaiian/Other Pacific Islander, or two or more races. (3) In contrast, the legal profession, Florida's state judiciary, and the ADR profession are not typically representative of the people whom we serve. This can have negative consequences for parties' perception of the fundamental fairness of the proceedings, especially in the typically confidential setting of mediations and most arbitrations. Indeed, with few exceptions, the disparity between the ethnic and gender make-up of these groups, on the one hand, and the general public, is significant and--as we shall see below--worrisome. So, let's take a look at the numbers.

The American Bar Association (ABA) has noted, in its report submitted in connection with ABA Resolution 105 (discussed later),

[i]t is well established that, despite significant efforts, the legal profession as a whole lags behind other professions regarding diversity and inclusion. As of 2012, African Americans and Hispanics comprised 16.5% of accountants and auditors, 18.9% of financial managers, 12.3% of physicians and surgeons, but only 8.4% of attorneys. Women, members of racial and ethnic groups, members of LGBTQ [sic] groups, and attorneys with disabilities continue to be underrepresented. (4) Locally, The Florida Bar's most recent published data (as of October 2022) indicate that 78% of Florida attorneys are Caucasian/White, 12% are Hispanic/Latino, 5% are African-American/Black, 1% are Asian/Pacific Islander, less than 1% are Native American, and 3% identify as "Other." (5) As to gender, 59% of Florida Bar members report as male, 41% as female, and less than 1% as non-binary. (6) As to sexual orientation, only 3% identify as gay, lesbian, bisexual, or transgender. (7)

Similarly, according to the 2014 "Report of The Florida Bar President's Special Task Force to Study Enhancement of Diversity in the Judiciary and on the JNCs," Florida's trial court judiciary (county judges and circuit judges) consisted of 84.1% Caucasians and 15.9% of non-Caucasians; approximately 65% were men and 35% were women. (8) Thus, when compared to the Bar's data for 2014, Florida judiciary's gender and ethnicity data are roughly similar to those of The Florida Bar for 2014. (9)

Nationally, the ADR neutral profession also lags behind the general population in terms of gender and ethnic composition. For example, the American Arbitration Association (AAA), a major source of mediator and arbitrator referrals, reports that, "As of the end of 2021: 29% of active panel members [including specialty panels] are women and racially and ethnically diverse. 50% of new additions to the AAA-ICDR Roster are women and racially and ethnically diverse." (10) The ABA, in its 105 Report mentioned above, noted that "the available data show that diversity within Dispute Resolution significantly lags the legal profession as a whole," pointing out that disparities exist at both the roster level (i.e., whether women and non-Caucasians are on the panels submitted for consideration) and the selection level (i.e., whether women and non-Caucasians are selected, even if they appear on a roster). (11)

The National Academy of Arbitrators (NAA), largely considered the preeminent labor arbitrator organization, issued its NAA Diversity, Equity, Inclusion, and Belonging: A Strategic Plan (National Academy of Arbitrators March 30, 2022) (hereinafter, "NAA DEIB"), (12) to discuss and address earlier findings of significant underrepresentation of arbitrators who were not Caucasian men. (13) Relying on a 2019 survey of over 400 labor and employment arbitrators, (14) the NAA DEIB notes that approximately 80% of these arbitrators were men (slightly more, 83%, of respondents who were only labor arbitrators, identified as male) and approximately 95% were Caucasian. (15) Those earlier data tracked with the anecdotal evidence of the gender- and race-composition of the NAA itself: approximately 80% men and approximately 93% Caucasian. (16) Neither the NAA DEIB nor the underlying 2019 survey addressed either the gender identity/sexual orientation or the disability identification of such arbitrators.

In Florida, the gender make-up of Florida Supreme Court certified mediators (17) overall is that about half are men (46.3%) and half are women (47.5%), with other/no report making up the 6.2% difference. However, these data are somewhat misleading, as reported gender varies significantly by type of mediator certification. For example, the percentages are skewed in favor of women in two of the five mediation certification areas: family mediation (50.9% female) and dependency mediation (68.2% female). Both of these certification areas have significant numbers of certificants drawn from the fields of psychology, social work, and mental-health professionals, fields that are, themselves, historically skewed female. In contrast, the circuit civil mediation certification area (which, until about 2007, required at least five years' Florida Bar membership), trends heavily in favor of men: 61.51% are male. Appellate mediation certification, which requires circuit, dependency or family mediator certification as a prerequisite, also skews male (60.71% are men). That tracks the gender disparity seen in the broader legal profession, discussed above. The final area of certification, county mediation, is roughly the same as the data for the entire group, with women (53.03%) slightly edging men (40.22%); there is an additional 6.75% of county mediators who either did not disclose their genders or did not accept a cis-gender classification. (18)

The ethnicity data for these Florida certified mediators tells a somewhat different tale: 65.66% of all certified mediators identify as Caucasian, with only 34.23% identifying as either African-American, American Indian/Alaska Native, Asian/Pacific Islander, Hispanic, or other; significantly less than 1% failed to identify themselves. While county mediators, 57.77% of whom identify as...