Conflict Resolution|Employment|Mediation

Neutral Selection: Diversity or Discrimination?

Maria Volpe’s exceptional ListServe has recently been embroiled in a mighty brouhaha.  The group discussion raised intriguing issues that merit a broader debate.  When, if ever, is it proper to require that a neutral be of a certain age, sex, race or creed?  Or to require that the neutral not be?

About a week ago, a Jewish organization posted a solicitation for paid facilitators for a “Town Hall assembly” in New York.  The purpose of the event was to “bring together 100 young Jews” at the Jewish Comunity Center in Manhattan to discuss “impediments to a relationship with social justice and Israel.”  The following qualifications were posted:

·        Up to 15 experienced dialogue facilitators aged 21-35

·        Comfortable with Jewish-Jewish dialogue on controversial topics

·        Able to read facilitator instructions and dialogue model ahead of time

·        Able to participate in a day-of facilitator orientation at 6 pm

Several members of the ListServe objected to the posting on the ground that the solicitation is age-specific and therefore discriminatory on its face.  The fact that the organizers seemed to prefer Jewish neutrals was not broadly commented upon.

The discussion was passionate, as the topic would deserve.  A first wave of commenters stated that it was entirely appropriate for young groups to seek young facilitators, as a way of making everyone comfortable.  (??)  A second wave comprised several white neutrals who told of successful engagements with all-black groups, and vice-versa.  These anecdotes were offered (I suppose) to show that at least in these instances a meaningful facilitation can occur with a diverse facilitator.  

It doesn’t follow that race, sex and age don’t matter in the provision of professional services.  Of course they matter; that is why the Civil Rights Act of 1964 was enacted.  Nevertheless, only a dogmatic pedant would say that any skilled mediator is appropriate for any situation.  As the Supreme Court’s recent question period in the “strip search” case shows, judges who are entirely “impartial” may nevertheless not be “neutral” in assessing the harm done to a 13-year old girl who is forced by school officials to disrobe.

The absence of diversity among professional mediators and arbitrators is an indictment of our profession.  I have tried my best to be on the forefront of approaches to address this plague (see my recent article in the ABA Dispute Resolution magazine and my earlier article in the National Law Journal) and will participate in the ADR Center’s conference in Greenbelt, Maryland, later this month to address exactly this topic. 

But does anyone really feel okay about a client’s insisting that the mediator or arbitrator be Asian or African-American?  Is it okay to say that you want the mediator to be young?  Or a Jew?  Is it okay to say that you want the mediator not to be a Jew, or African-American? 

If you run an ADR provider organization, is it okay to urge a client to select an Asian mediator?  To present a client with a list of only-Asian mediators?  To respond to a client request that only Asian mediators be proposed?  What about a request that Asian mediators be excluded?

I don’t know the answer.  Your move, friends….

1 Comment
  1. Mediation is typically private. It is a process that is supposed to be controlled by the parties for their benefit. If the parties agree, for any reason, that a mediator should have certain qualities or characteristics or experiences to best resolve their dispute, why should they not be free to make those choices? Where public funding is involved or where the mediation has a public audience or effect, those choices might properly be constrained. I (and I believe most people) would feel (or say they feel) that women should be free to select a woman to mediate. Why, then, should it be different if parties of the same race or religion want a mediator with their background. Should this be different from the selection of a therapist? What is the principle for constraining private choices? What we think is important should not necessarily override the criteria the parties consider important. It is another matter for an ADR provider to set its own standards for mediator selection, including an unwillingness to honor criteria of exclusion. The absence of diversity in the pool of mediators is a different issue, as is whether mediators are attractive to parties who don’t share their background. These are matters of recruiting and training and cultural change.

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