REUTERS | Mohammed Salem

Diversity in arbitration: what would Don Draper do?

Diversity in arbitral appointments has been in the news again, following the publication of the latest Queen Mary, University of London (QMUL)/ White & Case International Arbitration Survey. The responses to the survey suggest that, to date, the most visible efforts to improve diversity have been seen in the field of gender diversity: almost 60% of the respondents either strongly agreed or agreed that progress had been made. This is perhaps attributable to the efforts of bodies such as Arbitral Women to promote female arbitrators; there is also evidence that female arbitral appointments have increased since the 2015 launch of the Equal Representation in Arbitration Pledge.

The survey suggests, however, that significantly less progress has been made in respect of geographic, age, cultural or ethnic diversity. More recently, bodies such as the Alliance for Equality in Dispute Resolution have sought to widen the focus to promote equality of opportunity regardless of location, nationality, ethnicity, sexual orientation, gender or age. Ethnic diversity seems to be particularly poorly served (perhaps surprising, given the international nature of disputes, but indisputable nonetheless). It seems that, while in some respects arbitration is a progressive and fast-moving environment, in others we are still stuck in the 1970s… or perhaps even the 1950s. What to do?

The survey raises some tantalising questions as to whether arbitration users consider that diversity is, in truth, a goal worth fighting for. A word first about the respondents: 922 individuals answered the online questionnaire. The vast majority were lawyers in private practice, arbitrators or in-house counsel. The respondents covered a fairly wide geographical spread, though Europe dominated to an extent with 35% of respondents. We don’t know anything about the gender, ethnicity, age or cultural background of the respondents. Perhaps, though, we might infer from their professional background that middle-aged white men would have been fairly well represented. Like arbitrators, professional users of arbitration (as opposed to the parties themselves) are not necessarily the most diverse bunch. As a class, therefore, users of arbitration might not be as acutely aware of diversity issues as others; and, further, might naturally tend to favour appointments “in their own image”.

This is perhaps reflected in what the authors of the survey politely refer to as a “dichotomy”: on the one hand, the respondents recognise that most appointments are made by parties themselves; on the other, the respondents as a whole strongly backed the view that it was for the arbitral institutions, not parties, to engage with diversity issues. The explanation given was that arbitral institutions have most information about arbitrators: however, 70% of respondents also opined that they had access to enough information to make informed choices about arbitration. So, while attitudes do seem to be (slowly) changing, there appears to be an underlying willingness to accept the current situation.

But perhaps that is a reasonable position to take? The survey raised the question of what actual concrete benefits diversity might bring to a party to an arbitration, and reveals that there is no strongly perceived link between diversity and improved quality of decision-making. It is not entirely clear what is meant by “quality” in this context; presumably, this principally turns on whether the tribunal gets the decision “right”. One can see that involving arbitrators from different legal or cultural backgrounds could enhance the deliberative processes of the tribunal, by encouraging discussion and testing ideas in ways that might not otherwise have been thought of. However, predictability of outcome must surely also be a significant factor. Many, if not most, parties will wish to settle their arbitration rather than go to a full hearing; and the ability accurately to predict outcomes is likely to become more important as third party funding increases. Predictability is enhanced by familiarity with the tribunal, not by innovative and exciting deliberative processes. Perhaps, then, this is a factor that, very understandably, favours the status quo in terms of appointments.

Stepping back, it seems that users aren’t overly worried about diversity, and that a lack of familiarity with less established arbitrators inhibits their appointment. So how can a new arbitrator be sold into such an unpromising and saturated market? What insights might the dark arts of marketing and advertising reveal? Disclaimer: I am not a marketing expert; however, I have closely watched all seven seasons of Mad Men, and it occurs to me that, rather than trying to go “head to head” with established market leaders, a strategy might include identifying unique selling points, seeking to draw favourable contrasts with competitors, and (over a longer term) to foster familiarity and trust in the new “product”. As Don Draper said: “if you don’t like what’s being said, change the conversation”. Matters such as speed, availability, flexibility and reduced cost (all of which are valued by arbitration users) might (as long as quality was not compromised) be leveraged to encourage more diverse appointments to tribunals. With regard to fostering trust, a number of options, such as education or awareness-raising, were suggested in the QMUL survey, and of course these have their value. However, some of the later parts of the survey, which explore how parties obtain information about arbitrators, might also suggest some fruitful avenues: word of mouth, networking, online presence, publication of awards (where possible) and easily available information about availability might enhance an arbitrator’s appeal and visibility to parties who are otherwise unfamiliar with them, particularly when coupled with affordable fees and better availability for interlocutory matters and hearings.

I wonder if users of arbitration will still be having these discussions in ten, 20, 30 years? Perhaps as diversity increases (slowly) in boardrooms and in-house teams, we will see this reflected more generally in arbitral appointments. Unless the robots have taken over by then, of course… but that is a whole other debate.

20 Essex Street Karen Maxwell

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