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Pynchon: Diversity Lacking, as 'Old White Men' Still Dominate Arbitration World

At her She Negotiates blog, Victoria Pynchon makes the argument in a recent post that although there is greater diversity among judges and juries these days, this diversity is less significant than it might appear because key Supreme Court decisions have had the effect of steering disputes out of court and into private arbitrations. And once you arrive at your arbitration to resolve your dispute with your bank or cellphone provider, Pynchon writes, you can fully expect that your arbitrator will be an older white male.

Pynchon writes that while she would like to believe the arbitration system is fair and equitable, "I can't stay in denial, however, because bias places limits on my ADR career and on the careers of most other women 'neutrals' I know. The reality, Pynchon says, is that participants in arbitrations are highly likely to get an old white male arbitrator because arbitrators are typically chosen by partners in the Am Law 200, who are themselves more than 80 percent white men.

Even though AAA requires at least 20 percent women and men of color on their lists of available arbitrators, Pynchon believes that the lawyers selecting arbitrators tend to shy away from hiring women because there is a stereotype that women are more compassionate -- and "most lawyers don’t want a compassionate judge or a compassionate mediator because they believe that will cut against their chances to get a ruling in their client’s favor. Lawyers justifiably want judges who are more moved by logic and reason than by emotion."

In short, Pynchon concludes, parties to disputes need to realize that with the shift to more arbitrations, their right to a jury trial has already been eliminated in many cases. The remaining question, she says, is whether people will grasp the need for a more diverse ADR profession before they end up like a dog being judged by a jury of cats.

Posted by Bruce Carton on March 26, 2012 at 04:25 PM | Permalink | Comments (3)


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