Dispute Resolvers Must Continue Diversity Efforts

By Kabir Duggal, Myron Lloyd, & Ellen Waldman

Last month was  momentous for those working toward greater diversity, equity and inclusion in the professions.

In a controversial opinion that upended decades of precedent and selection protocols throughout higher-education, the U.S. Supreme Court declared the use of race as a factor in college admissions to be contrary to the Equal Protection Clause of the U.S. Constitution. Students For Fair Admissions Inc. v. President and Fellows of Harvard College, No. 20–1199 (June 29) (available at https://bit.ly/3OpsEdg).

One of the salient themes in the commentary following in the opinion’s wake is that racial diversity must remain a priority, in educational institutions as well as our workplaces. Confronting a radically new legal landscape, experts have pivoted to a new set of proposals designed to ensure that the educational path for students of color remains open. Ideas range from early college programs and feeder-schools located in disadvantaged communities with underfunded public schools, to enhanced funding of historically black colleges and universities. See “How to Fix College Admissions Now,” N.Y. Times (July 5) (available at https://nyti.ms/44Xceyb) (a collection of seven articles dealing with the aftereffects of the Supreme Court opinion)

In similar fashion, dispute resolution providers and consumers should double-down on their commitment to keep the pathway for talented aspiring mediators and arbitrators open. The moral legitimacy of the dispute resolution field depends on its capacity to represent the diverse patchwork of race, ethnicity, gender and life experience that characterizes the nation. Toward that end, several observations are in order.

First, as noted in a prior blog post, Students for Fair Admission does not affect dispute resolution providers or private employers generally. The ruling is directed toward institutions of higher learning whose receipt of federal funds places them in the category of state actors. All the same, Chief Justice John G. Roberts Jr.’s majority opinion made clear that race remains relevant as part of an individual’s life experience, the diversity of which makes for a more innovative  and capable workforce.

Second, a number of commentators have noted that the focus in university admissions may turn from race to disadvantages faced and challenges overcome. See the N.Y. Times link above. Class, whether one comes from money or has risen from poverty, may begin to play a more salient role.

This is all to the good–and holds promise for efforts to shape the next generation of neutrals in the labor and employment area. Employees’ perceptions of process fairness often hinge on having their claims heard by individuals whose backgrounds do not diverge significantly from their own. Not every mediator or arbitrator need hail from working-class roots, but for the field to retain legitimacy in the eyes of its users, a segment of the field must be able to claim a common affinity with the people who use its services.

Finally, each justice, whether writing in majority, concurrence, or dissent, acknowledged that yawning race-based disparities persist in wealth, income, education, housing, access to healthcare-- indeed, virtually every aspect of U.S. life. Distribution of work among professional neutrals replicates this pattern. The busiest mediators and arbitrators are, in the main, white men, commanding a disproportionate market share. This state of affairs, widely decried but seemingly immovable, cannot stand.

Dispute resolution providers must continue their efforts to promote the highly trained and effective diverse neutrals who populate their ranks.  And ADR consumers should actively seek to expand their cadre of “go-to neutrals” in an effort to fully deploy the panoply of talent residing in the field today.

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Duggal is Senior International Arbitration Advisor in the New York office of Arnold & Porter Kaye Scholer. Lloyd is an attorney and Lead Counsel for Global Information Technology at General Motors Co. in Detroit.  They are co-chairs of the CPR National Task Force on Diversity. Waldman is CPR’s Vice President, Advocacy & Educational Outreach, and CPR’s liaison to the task force.

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