In late 2018, just days after successfully obtaining a temporary injunction for his client Jay-Z’s trademark infringement case, attorney Alex Spiro publicly criticized the American Arbitration Association (AAA) for its lack of diverse arbitrators.[1] Although Spiro correctly pointed out that litigants are often “deprive[d]… of a meaningful opportunity to have their claims heard by a panel of arbitrators reflecting their backgrounds and life experience,”[2] the problem is not new, nor is it limited to the practice of arbitration within the United States.[3] The practice of arbitration has a deep history across the world, yet the field of international arbitrators is dominated by older, white American men.[4] While many pledges[5] and press releases[6] talk about changing the demographic makeup of arbitrators internationally, the Mansfield Rule™ has proven significant, measurable progress towards diversity in global ADR practitioners.[7]
The Mansfield Rule, a product of the 2016 Women in Law Hackathon,[8] “aims to boost diversity in leadership by broadening the pool of talent though ‘consideration goals’ — not quotas — for leadership roles.”[9] Version 1.0 focused its efforts on women and underrepresented racial and ethnic groups in legal leadership in large firms. Versions 2.0-5.0 now include LBGTQ+ layers and lawyers with disabilities, while also encouraging participation by midsized firms and international participation.[10]
Applying the Mansfield Rule to international arbitration, the program encourages those with the power of selecting an arbitrator to “think ‘outside the box’” and “find ways to overcome unconscious biases that appear to operate against true diversity and inclusion.”[11] When more women and persons of color are included in the pool of potential arbitrators, more diverse arbitrators are chosen; as more diverse arbitrators are chosen, the short list of preferred neutrals becomes reflective of the parties participating in the arbitration.[12] And, while Mansfield certification is admittedly a rigorous process for firms of any size, the program requires an ongoing commitment and tracking success.[13]
Thus, there is hope yet for Jay-Z and the many persons who are forced into arbitration soon; there are more persons of color and women in the role of neutral decisionmaker.
[1] Deb Sopan, Jay-Z Criticizes Lack of Black Arbitrators in a Battle Over a Logo, N.Y. Times, (Nov. 28, 2018), https://www.nytimes.com/2018/11/28/arts/music/jay-z-roc-nation-arbitrators.html. According to Spiro, the list of 200 AAA qualified arbitrators identified only three African American and, of those three, only two were women.
[2] Id.
[3] Homer C. La Rue & Alan Symonette, The Ray Corollary Initiative: How to Achieve Diversity and Inclusion in Arbitrator Selection, 63 Howard L.J. 215, 218 (2020). See also Ben Hancock, A Look at ADR and Diversity; Older White Males Lead the Ranks of Neutrals, 39 The Nat’l L.J. 1, 1 (2016), citing a 2015 study which found that of the 350 ADR professionals affiliated with JAMS, only 25 percent were women and less than 10 percent were persons of color.
[4] Id. See also Won L. Kidane, The Culture of International Arbitration, 3 (Oxford Univ. Press, 1st ed. 2017). “The profound rise in recent decades of legally ordered North-South and South-South economic interactions has increased the importance of appreciating the role of culture in maintaining successful relations, managing conflicts, and resolving disputes whenever are wherever they arise.”
[5] Sylvia Noury, We Need More Diversity in Arbitration, Law.com, International Edition, (March 23, 2022), https://www.law.com/international-edition/2022/03/23/we-need-more-diversity-in-arbitration/. The Equal Representation in Arbitration (ERA) pledge was launched in 2015 with a goal of achieving gender diversity. This program reported incremental success from 12% women arbitrators at the beginning of the pledge to 24% in 2020. “Doubling the numbers in five years is undoubtedly a significant achievement. However, there remains plenty of room for improvement in these statistics.”
[6] Jack Ballantyne, African Promise Aims to Promote Diversity on Tribunals, Glob. Arb. Rev. (Oct. 8, 2019), https://globalarbitrationreview.com/diversity/african-promise-aims-promote-diversity-tribunals. The African Promise was launched in early October 2019, encouraging “signatories to commit to improving the profile and representation of African arbitrators, especially arbitrations connected to Africa.” Since this press release, no additional progress reports have been on the African Promise and its website no longer exists.
[7] Mansfield Rule 5.0, Diversity Lab, (last accessed February 26, 2023) https://www.diversitylab.com/pilot-projects/mansfield-rule-5-0-certified-firms/. The use of the term Mansfield Rule™ in this post are intended to be used as descriptive of the programs administered by Diversity Lab. Herein, the service mark will not be included when using the term Mansfield Rule.
[8] 2016 Women in Law Hackathon, Diversity Lab, (last accessed February 26, 2023) https://www.diversitylab.com/hackathons/.
[9] Mansfield Rule 5.0, supra note 7. Goals of Mansfield certification are threefold: “1) Shifting cultures and mindsets through data tracking, advancement process transparency, and considering a broad slate of 30-50% underrepresented talent for all leadership roles and the activities that lead to leadership; 2) Sharing knowledge to work together, to learn together, and succeed together as a community; and 3) Increasing the marketplace visibility and economic power of underrepresented talent” through various Diversity lab forums and directory.
[10] Id. “As of 2022, there are 270+ U.S. and Canadian Law firms, 15+ UK law firms, and 75+ legal departments participating in the certification process.”
[11] La Rue & Symonette, supra note 3 at 229. “We see no reason… why the Mansfield Initiative could not have application in commercial and international arbitration…”
[12] Id. at 232-33. “Lawyers tend to be risk adverse” and tend not to select arbitrators with whom they are unfamiliar and/or without a proven track record of success. Getting more diverse arbitrators into the small pool of candidates from whom parties can select “represents an important first step for overcoming unconscious biases and ushering in the racial and gender balances we want… in the arbitrator-selection process.”
[13] John Ilino, Sim Sandman, and Caren Ulrich Stay, Diversifying Leadership: How the Mansfield Rule is Driving Change, Bloomberg Law, (June 17, 2022), https://news.bloomberglaw.com/us-law-week/diversifying-leadership-how-the-mansfield-rule-is-helping. “In several instances, Mansfield firms have significantly increased the racial and ethnic diversity of their leadership and outpaced non-Mansfield firms’ progress.”
