The Anti-Racist Solution to Non-Diverse Arbitration Panels
There is No Justice in the Absence of Diversity
Here’s the Easy Solution
If justice is blind, why do white men continue to dominate national and international arbitration forums? If I am a woman or a person of color, why is there little chance that my dispute will be privately judged by someone who is free of either explicit or implicit bias?
Millions of us have been trained in the lessons of implicit bias by the diversity and inclusion education industry. We know, for instance, that when orchestras conducted “blind” auditions, the percentage of women musicians hired increased dramatically. We’re not bad people. We’re just burdened with our tribal affiliations whether we know it (or should know it) or not.
The solution to the paucity of women in national and international orchestras was easily solved. The musician auditioning was simply doing so behind a screen that hid their race, gender and nationality.
As the private judging system intruded more and more deeply into the American justice system, most particularly in the lives of consumers who have no bargaining power to refuse the arbitration “option,” the progress made in diversifying our public judicial system frayed. Private “court” system consumers predictably expressed a preference for white men.
The only way to successfully challenge structural racism and bias is to change the structure.
Arbitration panels around the world have been touting their equal opportunity and diversity credentials for thirty years. The result? The American Arbitration Association boasts that 24% of its arbitrators are both women and people of color.
76% are white men.
What the AAA doesn’t tell us is the composition of the single bucket that contains women who are white and those who are POC. But we don’t know what communities those POC represent - Black, Asian, Latinx? Anybody else in there? Nor do we know whether those “diverse and female” arbitrators are hired in anything like the numbers their white male peers are. Understanding the effects of implicit bias on selection suggests that they are not hired nearly as often.
These numbers are therefore nothing for any business to crow about. Yet, we white people continue to give ourselves diversity participation awards for “achievements” that should put our “core diversity value” to shame. They are window dressing and non-transparent window dressing at that.
The Answer
Blind Race, Gender and Nationality Lists
Here’s my suggestion to change the structure that perpetrates the continued racist, sexist and bigoted selections of fact finders in the private judicial system.
Make the choice of arbitrator gender and race/nationality blind.
When law firms and their corporate clients are given lists of potential arbitrators, we’re told by the American Arbitration Association that 20% of them will contain the names of white and POC women along with POC men. Not to beat a dead horse, but the AAA doesn’t tell us (doesn’t want to tell us) what the racial and gendered composition of that bucket is. The percentage, however, speaks for itself. It can’t possible be representative of the population it serves.
This puny percentage and lack of transparency lets legal and corporate America off the hook of actually hiring women and people of color. We know at one point in time, for instance, that the AAA decided to stop putting Blacks on its construction panel because “no one hired them.” Why? Because the structure of the panel permits the exercise of the implicit bias the AAA understands affects consumer choice.
The simple solution is to make these lists as gender and race/nationality blind as the AAA “bucket” of “diverse” arbitrators is. Their lists of available arbitrators should identify these private judges in the private justice system by only what is important to the choice - their experience and education. They should not be identified by photograph or name. We know, for instance, that when job applicants can’t “whiten” their names, their chances of getting an interviews decreases dramatically. There is no reason that the names or faces that identify color or gender are needed to make an informed and non-biased choice.
A CV will suffice.
And like those “blind” orchestra auditions, we will finally have solved the implicit bias that is central to the structure of our private justice system.