Mediation Losing Its Effectiveness: Lack of Diverse Mediators

by : Elizabeth A. Moreno

Diversity happens when it has a positive impact on the bottom line. This was the overall consensus of representative corporations and law firms this past year at an ABA Dispute Resolution Section Diversity Forum. Mediation is losing its effectiveness because mediation panels are not diverse and do not reflect the gender and race of their employees.

The corporate panel, who was represented by corporate counsel from Cingular Wireless and T-Mobile and employee internal dispute resolution directors from Coca Cola Enterprises and Shell, agreed that awareness needs to be raised and that the profession needs to become more diverse. The lack of diversity is problematic in the employment arena. Corporations are finding that mediation is losing its effectiveness and they are losing their credibility with employees when they can only offer a homogenous group of neutrals to resolve workplace disputes. Corporations have an immediate need for Diverse ADR neutrals and the national ADR providers they use are not delivering a diverse panel.

Shell, which has an employee internal dispute resolution program 'RESOLVE', is not comfortable with just raising awareness. Shell is taking affirmative steps to make sure that it can choose neutrals from a diverse ADR panel. Shell is committed to the economic development of minority and women owned suppliers and actively engages in efforts to provide for inclusion by partnering with certified firms. Several years ago, Shell Oil Company was one of the first corporations to carry the torch and ask its majority law firms to demonstrate a commitment to diversity. Many firms can attest to the fact that a failure to demonstrate a commitment to diversity would jeopardize their relationship with Shell. Once again Shell has come to the forefront by introducing supplier diversity to the ADR profession and announced that Shell will extend business opportunities to certified minority and women ADR neutrals. These efforts, coined as "second tier" allow Shell to influence prime or majority ADR firms, with whom they do business, to also contract with minority and women owned ADR firms within the business community. Shell's message is driven by contract language and sharing information on benefits of engaging a more representative group of suppliers. In the upcoming months Shell will be targeting prime firms that provide ADR services to participate in second tier efforts. Shell astutely recognizes that by embracing the concept of inclusion, the company will rise to a higher level, reflecting its belief that it "will benefit from diversity through better relationships with customers, suppliers, partners, employees, government and other stakeholders, with positive impact on the bottom line."

Law firms agreed that law firm Diversity initiatives did not gain any momentum until corporations made demands that law firms commit to diversity or they would lose the corporation as a client. Diversity in the ADR profession needs to take place, but that it is the economic motivation that will move Diversity forward in the ADR profession. If corporations make demands that law firms use ADR providers that are diverse in mediating or arbitrating their cases, or risk losing business, they will use diverse ADR panels. Unless it affects the bottom line, entities will not be motivated to move forward and embrace diversity in ADR. Shell Oil has taken the step to carry the bottom line torch which will ignite the Diversity fire in the ADR profession.