Marcie Dickson is the founder and CEO of Alterity ADR, a national dispute resolution firm with a panel of experienced mediators, arbitrators, special masters, and expert conflict resolution specialists.
Attorneys spend countless hours preparing to represent their clients at the alternative dispute resolution (ADR) table, but many of them overlook a crucial aspect of creating a fair, effective and ultimately satisfying process: the selection of a well-suited mediator and arbitrator (also known as neutrals). While the right neutral can facilitate a successful negotiation that saves a key business relationship or eliminates a troubling dispute, the wrong one can derail the process entirely, wasting time and money, while further entrenching the hostilities. Given the importance of finding the best neutral for the job, we’d expect to see parties and counsel engaging in a careful selection process.
But that’s not what typically happens. Some people try to game the system by selecting a neutral they perceive will give them an advantage. And unfortunately, most counsel simply turn to their informal professional networks, or rely on lists from institutional ADR providers, and select a mediator or arbitrator without giving much thought to the practitioner’s specific skills, industry expertise or background. While the lack of diversity in the legal field as a whole is well established, a June 2021 report from the American Association for Justice shows that the ADR industry lags even further behind: At the country’s two largest ADR firms, only 23% of arbitrators are women, and only 12% are people of color. Failing to consider mediators and arbitrators from diverse backgrounds hinders successful ADR experiences in some predictable ways:
A potential absence of cultural competency. Given the current demographics in the ADR industry, it is unlikely that parties who identify as “diverse” will face a mediator or arbitrator who shares their life experience. This is a missed opportunity because effective ADR is about more than just establishing the facts of a dispute. To deliver mutually beneficial resolutions, neutrals need to establish trust with the parties. One way to foster that trust is making sure the neutral overseeing the process can relate to the clients’ experiences.
Groupthink. As a result of affinity bias, people who tend to think about the issues at the heart of disputes in the same way ask the same kinds of questions and come to the same conclusions. But research shows that diverse groups, on the other hand, come up with bolder, more creative solutions to problems. The ability to think creatively and outside of the box can lead to better quality decisions for all participants. A variety of rich perspectives (and expertise) will broaden the kinds of resolutions that are possible.
A mismatch between philosophy and goals. Not every neutral is equally suited for every case. Philosophies about how to approach dispute resolution vary — some neutrals aggressively evaluate who is right and wrong in order to project a probable winner as quickly as possible, while others take a more circumspect approach. Some prefer shuttle diplomacy while others prefer direct negotiations and restorative justice. Likewise, parties come to the ADR table with different kinds of goals and definitions of what success looks like. The ADR process works best when a neutral’s philosophy and style align with what both parties hope the process can achieve.
A narrow focus on subject-matter expertise. Of course, it’s important for a neutral to be knowledgeable about the information at the heart of the dispute. But it’s equally important that the neutral’s temperament be suited to building trust with the parties on all sides and that she or he can guide them to a mutually agreeable resolution.
The integrity of the dispute resolution process depends on selecting neutrals that clients view as fair, responsive to their needs and committed to a successful outcome. The good news is, by following some simple best practices for selecting a mediator or arbitrator, attorneys can improve the ADR experience for all parties:
- Get clear on your client’s goal for the ADR process. Until you truly understand how your client would define a successful outcome, you can’t know what kind of neutral you are looking for. Take time to talk this through before the selection process begins.
- Articulate the kinds of expertise you are looking for. Subject-matter expertise and qualifications and certifications are important credentials to consider. Equally important are more intangible factors like background and life experience, philosophy and interpersonal skills. Ask yourself what abilities would make a neutral best suited to this particular case.
- With your wish list in mind, research potential candidates. Cast a wide net, beyond the typical lists and referral sources, to uncover the many qualified candidates with proven track records of success in ADR who are currently available. Ask the candidates for references to get a better idea of how that person has ruled in other cases, and whether they will work tirelessly to resolution.
- Conduct interviews. This is an extra step, but a live conversation with a prospective neutral can uncover important information you may not find in his or her bio, including how they handle contentious situations, the nature of their listening skills and the presence of any biases — toward people or industries — that may impact the process.
In an era when law firms and companies alike have articulated a groundbreaking level of commitment to diversity, equity and inclusion through their statements of values and updated workplace policies, the default approach to selecting neutrals for the ADR process is no longer appropriate. It’s time for parties and counsel to embrace a more thoughtful, intentional method for finding the right neutral for the job, based on a holistic understanding of skills, expertise and the profound and measurable benefits of diversity.