Become a Member
OBA Logo
search
menu

OBA's Neutral Diversity Report

March 29, 2022

Download Submission

Date: March 29, 2022

1. Introduction

Arbitrators and mediators (“Neutrals”) hired in Ontario do not generally reflect the gender or racial diversity of the demographics of the province or the legal profession. Through this report the Ontario Bar Association (“OBA”) has undertaken to understand the depth of this issue within the profession and how to address it proactively. As this report will show, the diversity of Neutrals(defined as Neutralsfrom racially diverse backgrounds and from various age groups and genders (“Neutral Diversity”)) can enhance client experiences with the legal system, improve and enhance the effectiveness of outcomes of alternative dispute resolution (“ADR”) and build a stronger, more inclusive legal profession.

While efforts to increase Neutral Diversity have been ongoing in other countries, the issue has until now gone unaddressed in Ontario. This report examines the efforts in other jurisdictions to increase the Neutral Diversity and sets out Ontario data highlighting the lack of Neutral Diversity in the province. It considers the importance of Neutral Diversity and lays out a series of steps that lawyers, law firms, in-house counsel, experienced Neutrals, law associations, government bodies and ADR providers can take to increase both the supply of and demand for Neutral Diversity.

2. Background

Established in 1907, the OBA is the largest volunteer lawyer association in Ontario, with over 16,000 members who practice on the frontlines of the justice system and who provide services to people and businesses in virtually every area of law and in every part of the province.

Each year, through the work of our 40 practice sections, the OBA provides advice to assist legislators and other key decision-makers in the interests of both the profession and the public and delivers over 325 professional development programs to a diverse audience of over 16,000 lawyers, judges, students and professors.

This submission was prepared by members of the OBA’s Alternative Dispute Resolution Section (“ADR Section”). The ADR Section has over 250 members who, on a daily basis, are engaged in mediations and arbitrations across the province in a variety of areas including civil and commercial litigation, trusts and estates, employment and labour, family law and insurance. The ADR Section struck a working group (the “Working Group”) to examine the existence of Neutral Diversity in ADR settings and propose recommendations on how to improve the same in Ontario.

3. Enhancing the Diversity of Mediators and Arbitrators: Lessons from Other Jurisdictions

Around the globe, organizations are finding that mediators and arbitrators often do not reflect the diversity of the populations they serve. The steps other jurisdictions have taken to improve Neutral Diversity provide useful context for the OBA’s work on this issue.

In the United Kingdom

In the United Kingdom, the Centre for Effective Dispute Resolution (“CEDR”), a leading nonprofit ADR service provider, released a comprehensive report on gender, age and racial/ethnic diversity in civil and commercial mediation in March 2019.1 CEDR found that there were significantly fewer women (33.6%) working in commercial mediation than men (66.4%) and that the proportion of racialized2 commercial mediators is lower than the general population and under-represented in relation to comparable professions, such as law.

CEDR made numerous recommendations to improve mediator diversity. It focused on addressing barriers encountered by potential mediators, which can prevent a diverse mediator from being selected for commercial cases. CEDR’s recommendations include:

  • Initiatives to increase the number of diverse individuals who choose to become mediators, such as greater use of diverse mediator role models to attract new diverse mediator candidates.
  • Initiatives in mediator training to improve the success of diverse candidates, including the review of training materials and assessment criteria for unconscious bias.
  • Initiatives to assist diverse mediators in obtaining early experience as mediators, including encouraging experienced mediators to provide job shadowing and assistant experience opportunities.
  • Initiatives to increase the number of diverse mediators on mediator panels, including the recommendation that panels of mediators have clear and transparent criteria for admission, that the criteria for selection be reviewed to ensure that they are inclusive and focussed primarily on mediator experience and ability, and the use of tiers of senior and junior mediators allowing for newer mediators to more easily enter the profession.

At the crucial stage of mediator selection, CEDR made several recommendations to increase diversity. On the provider side, CEDR recommended that diverse lists be provided to clients and that the list be reviewed annually for diversity. CEDR recommended that clients proactively request diverse lists from providers and reject non-diverse lists. CEDR recommended that client advisors be trained in unconscious bias and how to deal with this, including when the bias originates from a client.

In the United States of America

In the United States, the American Bar Association (“ABA”) found in 2018 that diversity within dispute resolution “significantly lags the legal profession as a whole”.3 The ABA noted that the diversity of Neutrals selected for popular Neutral panels is significantly lower than the representation of diverse groups in the legal profession as a whole, in terms of gender, race, and ethnicity. Even when added to these panels, women and members of racial and ethnic groups were selected to serve as Neutrals at levels below their representation in the profession. In 2018 the ABA adopted the following resolution:

  • RESOLVED, That the American Bar Association urges providers of domestic and international dispute resolution to expand their rosters with minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities (“diverse Neutrals”) and to encourage the selection of diverse Neutrals; and
  • FURTHER RESOLVED, That the American Bar Association urges all users of domestic and international legal and Neutral services to select and use diverse Neutrals.4

A number of major providers of mediators and arbitrators have made recommendations to enhance the diversity of Neutrals. JAMS, the world’s largest provider of Neutrals [based in the U.S. and the U.K.], has stated its commitment to recruit and retain Neutrals of varied ethnic, racial, gender, religious, and sexual orientation backgrounds. They have invited law firms, corporations and legal organizations to:

  • Consider women and ethnically diverse mediators and arbitrators when evaluating a case and participating in the selection of ADR professionals.
  • Consider utilizing a Diversity and Inclusion Clause5 for arbitration contracts.
  • Allow JAMS to assist firms in measuring progress by tracking a firm’s Neutral selection data.6

The International Institute for Conflict Prevention & Resolution (“CPR”), which is based in New York but follows the United Nations Commission on International Trade Law Arbitrations Rules (UNCITRAL Arbitration Rules), has stated that it is “committed to encouraging all forms of diversity, equity and inclusion in dispute resolution, in particular increasing the participation of women and people of color in mediation, arbitration and other dispute resolution processes – especially by increasing the number of diverse Neutrals selected to mediate or arbitrate disputes as well as increasing the opportunities for diverse attorneys appearing before Neutrals.”7 CPR has published a detailed plan to accomplish its diversity goals, with four prongs: growing the pipeline of diverse Neutrals, supporting the pipeline, promoting diverse Neutrals, and increasing the number of diverse Neutrals selected.8 CPR has encouraged members of the corporate and law firm communities to sign its Diversity Commitment, which states:9

References and Notes

  1. Available online at: https://www.cedr.com/wp-content/uploads/2019/10/Full-Report-CEDR-Foundation.pdf
  2. In the U.K., CEDR did not use the term “racialized” but the acronym “BAME”, which “stands for Black, Asian and Minority Ethnic and is defined as all ethnic groups except White ethnic groups. It does not relate to country origin or affiliation.” https://www.london.gov.uk/questions/2018/0064.
  3. Report of the ABA Section of Dispute Resolution, August 2018 in support of Resolution 105, available online at: https://www.americanbar.org/content/dam/aba/images/abanews/2018-AM-Resolutions/105.pdf
  4. ABA Resolution 105. https://www.americanbar.org/content/dam/aba/images/abanews/2018-AMResolutions/105.pdf
  5. Diversity & Inclusion Arbitration Clause for Arbitration Contracts | JAMS Arbitration (jamsadr.com) (https://www.jamsadr.com/inclusion-clause)
  6. Diversity and Inclusion | JAMS Mediation, Arbitration and ADR Services (jamsadr.com) (https://www.jamsadr.com/diversity/)
  7. Diversity, Equity & Inclusion | CPR International Institute for Conflict Prevention & Resolution (cpradr.org) (https://www.cpradr.org/about/diversity)
  8. Diversity, Equity & Inclusion | CPR International Institute for Conflict Prevention & Resolution (cpradr.org) (https://www.cpradr.org/about/diversity)
  9. Diversity Commitment | CPR International Institute for Conflict Prevention & Resolution (cpradr.org) (https://www.cpradr.org/about/2020-diversity-commitment)