Magazine article Dispute Resolution Journal

LEVELING THE PLAYING FIELD for Workplace Neutrals: A Proposal for Achieving Racial and Ethnic Diversity

Magazine article Dispute Resolution Journal

LEVELING THE PLAYING FIELD for Workplace Neutrals: A Proposal for Achieving Racial and Ethnic Diversity

Article excerpt

Both conscious and unconscious forms of racial and ethnic bias in our society have, not surprisingly, resulted in the underutilization of minority neutrals in union and non-union workplace disputes. The objectives of the alternative dispute resolution movement will be better served if there is greater equality in the selection and utilization of minority workplace neutrals. The authors contend that a program is needed to increase diversity in this area and that this program should have three components: (a) creating national and regional panels of minority neutrals to increase their visibility, availability and accept-ability; (b) educating users of ADR services about conscious and unconscious biases in neutral selection processes; and (c) developing a system of accountability to encourage ADR users to select minority neutrals for workplace disputes.

When one considers the extent to which the appalling legacy of racial and ethnic bigotry in the United States has infected the legal system of this country since its founding, it is hardly surprising that this legacy has negatively affected the extent to which racial and ethnic minorities are being used as mediators, arbitrators and fact-finders. We are focusing primarily on the underutilization of minority neutrals in the area of labor and employment disputes, but this problem also exists in other areas of alternative dispute resolution (ADR) practice. The unfairness of this situation is obvious. What makes the situation even more offensive and counterproductive, in the context of workplace cases, is that these disputes often involve allegations of discrimination, disparate treatment, hostile work environment, or sexual harassment.

There are similar disparities in the selection and utilization of women and other groups that are underrepresented in the ranks of workplace neutrals.1 However, the purpose of this article is to focus primarily on race and ethnicity as factors, and if our conclusions are useful with regard to combating the disparities in the selection and utilization of others, we welcome additional dialogue about how to broaden the focus of our analysis and to broaden the proposed solutions.

Let us digress for a moment to tell you something about ourselves. We have been friends and colleagues for some 15 years. We come from different demographic backgrounds. David is white but his religious affiliation (Jewish) makes him personally familiar with discrimination. Lamont is African-American. We are both involved in ADR as neutrals (Lamont as a university professor, labor arbitrator, labor mediator and grievance mediator and David as a lawyer, mediator and arbitrator of private employment and other kinds of disputes). Collectively, we have almost 50 years of experience as workplace neutrals. It is through the prism of our experience that we write about the dearth of minority neutrals involved in workplace disputes. We hope that our observations and conclusions, some of which apply as well to women, will become part of the continuing dialogue about the need for greater diversity in the ADR field as a whole and, in particular, in the area of workplace conflict resolution.

What Do We Mean by Diversity?

Fostering greater diversity in workplace ADR requires consideration of what differences are important. For example, no one argues that it is important to have proportional representation of left-handed and right-handed people. Nor is there concern that a proper balance be maintained between people of Polish descent as compared with those of Finnish descent. The types of differences that are germane to our inquiry are those associated with a history of continuing discrimination and exclusion. For purposes of this article, we are focusing only on race and ethnicity.

With regard to workplace systems, there are essentially three types. In one type, neutrals are selected from a list maintained by the employer or by an independent ADR service provider. …

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