What do you automatically think of when you think of a lawyer? Aside from “Law & Order,” perhaps it’s a jury, judge, witnesses, or prosecutor. Despite the courtroom images associated with lawyers in news and modern media, dispute resolution in civil and commercial matters rarely ever involves stepping foot into a courtroom. The easy availability of out-of-court alternative dispute resolution (ADR) techniques such as mediation and arbitration is one reason few civil cases are actually tried.
Alternative dispute resolution and challenges with diversity
Data suggests approximately 97% of civil cases settle or are dismissed without a trial. Going to trial is costly, and ADR often saves the time, frustration, and uncertainty that typically comes with going to court. Mediation not only offers flexibility in civil and commercial matters, but also control, as no settlement is reached without the parties’ consent. It is the primary form of ADR highlighted in this discussion.
Despite the high case volume and costs of litigation, which should make ADR a robust area for law students and young lawyers to pursue as a career, diverse attorneys face challenges accessing ADR opportunities. One reason for the challenges with diversity in ADR practice is the historical barrier to inclusion when accessing professional networks. For instance, the National Academy of Arbitrators is one of the largest communities of arbitrators in the United States. However, when it published its membership participation data between 2002 and 2006, fewer than 15% of members were women and fewer than 2.5% were African American.
Similar challenges persist in mediation practice for “dispute neutrals,”who help disputing parties reach mutual understandings and communicate effectively. Most ADR practitioners are selected after serving as members of the judiciary or in senior levels of law firm practices, which are two forums where minorities remain underrepresented. With fewer minorities in the pipeline for these positions, fewer diverse neutrals are selected for opportunities in mediation practice. In light of these challenges, ABA Resolution 113 (ABA 113) and the Model Diversity Survey have been implemented to help hold law firms accountable if diverse lawyers are underrepresented in mediation practice, and in the legal profession overall.
Diverse neutrals and their importance in mediation
Within the ABA’s Goal III initiative, the word “diverse” captures a range of racial and ethnic backgrounds, gender and sexual identities, and disability statuses. In addition, “diversity” must capture all marginalized groups and extend to age, geographic identity, religious beliefs, social mobility, and U.S. nationals or immigrants with uniquely distinct cultural experiences. As such, “diverse neutrals” are dispute neutrals with diverse backgrounds and experiences.
When diverse neutrals are sought for a mediation, their personal experiences with diversity are typically valued as critical to the perspectives they will consider in resolving a conflict. Including diverse neutrals recognizes that some personal experiences impact mediation outcomes in uniquely distinct ways. With international mediation and facilitation in peace processes, there is a growing awareness of cultural and religious sensitivities. In Europe, male and female mediators are required in many violent conflicts, with the premise that women and men consider the different roles (actors or victims) and gendered needs differently.
In the United States, dispute neutrals in mediation are usually selected by counsel for the disputing parties or a third-party ADR provider organization. Common selection criteria in the U.S. generally includes ADR experience and training, subject matter expertise, history of settlements, fees, referrals, and in some instances, a practitioner’s professional affiliations. A diverse representation of experiences must also be prioritized when considering neutrality for mediators. Diverse lawyers serving as neutrals and representing people in ADR processes can build trust and help mediation teams consider cultural sensitivities. In some instances, diverse neutrals also help conflicting parties communicate more efficiently and become aware of the underlying interests the other party has.
Practical steps to help ‘diverse’ lawyers break into mediation practice
Melissa Kucinski, Attorney and Mediator with MK Family Law, recently sat on a panel hosted by the ABA Section of Dispute Resolution about “diverse dispute neutrals” and the ongoing need to improve diversity in the profession more broadly. In her experience, “age” is yet another diverse characteristic that makes a young lawyers’ ability to break into mediation practice more challenging. Melissa helped herself overcome this hurdle through (1) early involvement with the ABA, (2) viewing her involvement as sustained investment, and, (3) building relationships. These three practical steps also help a broader range of diverse lawyers advance their careers in mediation practice.
1. Express an early volunteer interest.
Early involvement in the ABA and minority bar associations can have a positive ripple effect in a young lawyer’s career for years. Melissa recommended students reach out to the Chair of ABA sections to express an interest in volunteering for projects, because they often lead to other opportunities. Melissa began her ABA involvement this way, and at the time took notes for committee meetings. She has since chaired several committees within the ABA, is the author of numerous articles on international child abduction mediation, and is a widely sought-after speaker on this topic.
2. View your involvement as a sustained investment.
There is a different cadence to each ABA group, and early professional involvement may not yield immediate results. However, the sustained effort does pay off. ABA events and volunteering may require your time weekly, monthly, or quarterly. As a law student or new associate on the billable clock, you may look at the hours away from your assignments, event costs, or travel and think, “there is no time in my schedule for that!” Admittedly, this was my initial reaction until a mentor shared a position vacancy with the ABA’s Commission on Racial & Ethnic Diversity in the Profession. I became determined to prove myself wrong, and once appointed the work was both meaningful and manageable. Thankfully, the ABA’s Young Lawyers Division and various other committees are continuously challenging young lawyers and law students to re-evaluate lines of thinking which suggest otherwise.
By viewing strategic involvement in professional associations as a career investment (and an investment in the future of the profession), the returns will follow. In time, professional networks will often share jobs and leadership opportunities prior to formal postings and you will meet lifelong colleagues and friends. Active ABA members will also make useful introductions at events and will push you to grow as a leader. Many of the practitioners you meet will also willingly serve as allies, mentors and professional references in the future.
3. Build relationships.
When asked how she got to where she is, Melissa’s answer was simple –“I’ve been lucky.” She then listed various mentors who helped her get to where she is. The recent panel on “diverse dispute neutrals” was just one of multiple panels Melissa was invited to join in the coming months, and most are an outgrowth of relationships she has developed through the ABA.
For law students and young lawyers, involvement with professional organizations broadens networks beyond school, work, local communities, humble beginnings, and personal backgrounds. This can be critical for diverse lawyers in need of allies or seeking mentorship opportunities, particularly when they are the first-generation of lawyers in their families. Of course, building relationships through the ABA is no substitute for hard work. However, when hard work is paired with a genuine interest in an area of law, desire to learn from practitioners, humility, and persistence, the relationships built can have a multiplier effect on an early career for years.
Becoming involved with ABA 113 and related diversity efforts
Diversity can and must be broadly defined as it relates to perspectives and people. Developing workplace cultures that attract diverse talent requires an end to treating diversity initiatives as an afterthought or a numbers game. For businesses and disputing parties, diversity breeds creativity, risk reduction, and innovative solutions. ABA 113 is one of many proactive steps taken to help diverse neutrals and lawyers overall advance in the profession. At the Section on Dispute Resolution’s 20th Annual Spring Conference April 4-7 in Washington, DC, these discussions will continue. Regular registration opened on February 14, 2018. You are invited to register and join the community of ABA 113 supporters in discussing creative solutions around the challenges with diversity.