Around the globe, organizations are finding that mediators and arbitrators often do not reflect the diversity of the populations they serve and are taking steps to improve neutral diversity. While this work has not yet been conducted in Ontario, the OBA has recently created a joint committee, consisting of members of the ADR and Civil Litigation Executives, to consider neutral diversity in Ontario.
In the United Kingdom, the Centre for Effective Dispute Resolution (“CEDR”) found that there are significantly fewer women (33.6%) working in commercial mediation than men (66.4%) and that the proportion of BAME commercial mediators is lower than the general population and comparable professions, such as law. CEDR made a number of recommendations to improve mediator diversity. For instance, CEDR recommended that for panels supplying mediators, admission to the panel should be based on transparent procedures focussed primarily on mediator experience and ability, with tiers of senior and junior mediators allowing for newer mediators to more easily enter the profession. CEDR also recommended that when mediator panels provide lists of possible mediators to clients, diverse candidates should be included. For mediation users, such as lawyers, CEDR recommended that they demand diverse lists from mediation providers and reject-non diverse lists, be open to using new mediators, and be trained in unconscious bias and how to deal with this, including when the bias originates from a client.
Closer to home, the American Bar Association (“ABA”) in 2018 found that diversity within dispute resolution “significantly lags the legal profession as a whole”. The ABA noted that the diversity of neutrals selected for popular mediator/arbitrator 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 a resolution urging “providers of 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… [urging]all users of domestic and international legal and neutral services to select and use diverse neutrals”.