The OBA’s Working Group on Neutral Diversity recently released a report examining diversity in alternative dispute resolution settings and proposing recommendations about how it can be improved in Ontario.
The report revealed that arbitrators and mediators hired in Ontario do not reflect the gender or racial diversity of the demographics of the province or the legal profession. Respondents to a survey reported that in the last two years, the mediators that they hired were men 70% of the time, and white 94% of the time.
As female mediators and one of us of South Asian decent, we are pleased that the OBA has taken the initiative to spotlight that a diversity issue does exist. It should be a priority for the legal profession to reflect the community it serves, improving diversity across the board, from legal recruiting and retention to Neutral development, retention and selection.
The report sets out a number of recommendations for lawyers and organizations to consider to increase Neutral diversity. By following the recommendations in this report, the diversity of mediators and arbitrators hired in Ontario can be improved with positive results for clients, lawyers, Neutrals and the legal and ADR professions as a whole.
Below are a few recommendations to diversify your Neutral selection:
1. Request diverse names when seeking recommendations for Neutrals.
2. When proposing Neutrals to opposing counsel, include diverse candidates.
3. If you are wary of retaining someone new, consider hiring unfamiliar or less senior Neutrals to mediate smaller value or simpler cases as a way of gaining comfort with them.
4. Instruct outside counsel to include diverse Neutrals in lists of Neutrals they propose and encourage selection of diverse Neutrals where appropriate.
5. Educate clients about the benefits of using Neutrals from diverse backgrounds, e.g., different perspectives can help you identify gaps in your case and avoid group thinking.
By following the recommendations in this report, the diversity of mediators and arbitrator hired in Ontario can be improved with positive results for clients, lawyers, Neutrals and the legal and the ADR professions as a whole.
The legal profession in Ontario needs to step up in increasing Neutral diversity because “diversity is everyone’s business”.