Championing Diversity in Arbitration: An Interview with Dr. Katherine Simpson

Dr. Katherine Simpson, an arbitrator with a focus on international disputes, possesses a unique blend of expertise with her work extending beyond the arbitration room. She is also an educator, delivering seminars on international dispute resolution and advocacy. In addition to  these roles, Dr. Simpson is recognized for her co-founding the Directory of Black Arbitrators, an initiative aimed at addressing diversity within the profession. In this discussion, we delve into Dr. Simpson’s motivations, her practical contributions, and her vision for diversity in arbitration.

  1. Can you share the various diversity initiatives you have been at the forefront of?

I have led four internationally recognized diversity initiatives: (a) “CETA – Where are the Women”, (b) the Arbitrators of African Descent List (with Nancy Thevenin), (c) the Ray Corollary Initiative (as Vice Chair, with Prof. Homer C. La Rue as Chairman of the Board of Directors), and (d) the Women in Dispute Resolution (WIDR) Committee of the American Bar Association (ABA) Dispute Resolution Section (as Co-Chair or Chair, 2022 – 2024). 

Each initiative has made or is making its own unique impact. “CETA – Where are the Women” (2020) was enormously successful. In that project, I responded to the absence of women in the Chairpersons roster in the Comprehensive and Economic Trade Agreement (CETA), between the European Union and Canada. I prepared a roster of 70 women who, on a skills level, could replace one or more of the men who had been appointed to that slate. In addition to three (3) persuasive letters, I gave the treaty parties an alphabetical list with short career summaries of each neutral and a confidential list that literally matched each woman to the man or men that she could replace. This was one of the projects that the EU later characterized as a demand for a “depoliticized, independent and inclusive” selection of arbitrators, and which persuaded the EU to change how arbitrators are named to investor-state and trade treaty rosters. In response to this project, the EU created a new committee tasked with arbitrator selection. Through this committee and a public application process, the EU increased its roster of arbitrators from an estimated 40 people to an official slate of 390. It is an example of how calls for gender equality increased appointment opportunities for people of all genders.

  1. Can you share the inspiration behind founding the Directory of Black Arbitrators (DBA)? What specific challenges in the field of arbitration and alternative dispute resolution led to the creation of this initiative?

I really can’t take credit for founding the DBA – that initiative is possible through the generosity of Arbitrate.com! Arbitrate.com understood how the Arbitrator of African Descent List (2020) project needed to be modernized and provided the accounts and technological expertise to make it possible.

The Arbitrators of African Descent List was published by Nancy Thevenin and me in the summer of 2020. It was created in response to the frequent cry of “there aren’t any”, which is often made in response to efforts to increase appointments of diverse neutrals. The Arbitrators of African Descent List featured over 120 Arbitrators who accepted international commercial arbitration cases. The list invited people from the broadest African Diaspora – as well as Africans living in Africa to participate.

The Arbitrators of African Descent List existed only as a PDF. The List was available to anyone who wanted it; it was not trapped behind a paywall or a difficult questionnaire. With over 120 highly qualified neutrals identified in a short period of time, it served its immediate purpose of disproving the “there aren’t any”- myth, and it had the potential for improving the visibility of those listed and generating appointments.

Despite its success and future potential, the trouble with the List was its format. PDF-based directories are difficult to update and somehow seem outdated as soon as they are published. That creates its own set of problems because once updated, there can be multiple versions of the same document floating the the internet. It can become difficult to identify the current version. This was a problem for appointers and for the arbitrators who were listed. The List project needed a new format and possibly a new home. In response, Arbitrate.com offered everyone a free, easy-to-update Feature Profile and the option to be searchable along with all other Arbitrate.com neutrals, as well as through the “Directory of Black Arbitrators.” This has been a great development for appointers and neutrals alike.

  1. How do you envision the DBA contributing to increased diversity and representation in the arbitration profession?

At least since the International Council for Commercial Arbitration (ICCA) created its first membership directory, directories have been one of many tools that appointers use to identify candidates who are suitable for appointments. In fact, one of the key benefits of membership in most ADR-related organizations is the ability to promote oneself through that directory. Directories are also the easiest and most effective way to disprove the persistent myth that “there aren’t any” diverse neutrals. 

Appointers often request a list of diverse neutrals that they can use to diversify their appointment pools. Of course, there are diverse neutrals in all directories where highly qualified neutrals can be found. Directories of diverse neutrals are, however, a short-term response to underrepresentation. Appointers need to be able to appreciate all neutrals, including diverse neutrals, in the same directories. There are diverse neutrals in a variety of arbitrator directories, but their names get overlooked. Unfortunately, many appointers overlook diverse neutrals when the appointers are not looking at what they would consider to be an affinity list. Many continue to overlook diverse neutrals when they are not deliberately looking for diverse neutrals.

Arbitrate.com found a way to reach everyone who looks for neutrals. All relevant Arbitrator profiles are presented in the search results on Arbitrate.com. In Addition, neutrals who elect to be part of the “Directory of Black Arbitrators” are visible when appointers want to see the Directory of Black Arbitrators.

  1. Can you provide examples of positive impacts that have resulted from the initiative so far?

Thanks to a variety of initiatives, institutions, and appointers for recognizing that “there aren’t anyis simultaneously a myth and a rallying cry for those who oppose or are threatened by diversity. Institutions and appointers appear to be taking panel diversity more seriously.

  1. Are there any particular goals or milestones you hope to achieve through these initiatives in the near future?

I would like to see more appointers – institutions and ADR users – implement the Ray Corollary Initiative (RCI) Pledge, pursuant to which at least 30% of every appointment slate is “diverse.” This significantly increases the chances that a diverse neutral, who is featured on an appointment slate, will be appointed.

Research has shown that just because a diverse neutral’s name is on a roster does not mean that he or she will be appointed. That same research has also indicated that, when diverse neutrals occupy less than 30% of a hiring or appointment slate, it is unlikely that any diverse neutrals will ultimately be appointed. It is important, therefore, that diverse neutrals make up at least 30% of every appointment slate. The RCI works to ensure that diverse neutrals are meaningfully included on appointment slates that enable their actual appointment. It is important to note that the use of the 30% metric does not diminish party autonomy in establishing the criteria for the selection of neutrals.

The RCI is also a great example of intersectional advocacy. The RCI works to ensure that all diverse neutrals recognized in ABA Resolution 105 are included in ADR. Since the establishment of the RCI as a non-profit organization, several appointers, including the International Institute for Conflict Resolution and Prevention (CPR), JAMS, American Arbitration Association (AAA), and the Cayman International Mediation and Arbitration Centre (CI-MAC) have taken the RCI Pledge. Each has pledged that at least 30% of each appointment slate will be “diverse”, within the meaning of ABA Resolution 105. I understand that these organizations have seen their commitment to the RCI’s 30% metric increase the diversity of slates that they put forward and that they have experienced an increase in the number of diverse neutrals who are actually appointed. The RCI is seeking foundation funding to carry out its mission of greater diversity in the selection of arbitrators and other ADR neutrals. With that funding, RCI, Inc. will continue to find innovative ways to close the ADR diversity gap.

  1. How do you see the broader legal and ADR landscape evolving with a more diverse and representative pool of arbitrators?

I do not see the broader legal or ADR landscape “evolving” – diversity isn’t just going to solve itself with time. Increased diversity is going to require the deliberate and intentional actions of all ADR users to ensure that “diverse” neutrals are being presented on appointment slates and that they are being appointed.

Diversity is valued in numerous spaces because of its ability to foster economic innovation and promote efficiency. I think that the effects of increased diversity among neutrals will have the same effect and will lead to increased credibility and legitimacy of ADR.

  1. Finally, what message or advice would you like to convey to aspiring arbitrators, especially those from underrepresented backgrounds, who may be inspired by your work?

I would encourage all aspiring neutrals to find a mentor and to mimic the doable parts of that mentor’s career path. The successful independent arbitrators who have mentored me have enjoyed ADR careers that appeared to be the product of three main ingredients: academic appointments, legal practice, and institutional leadership. Each neutral had different amounts of each of these three ingredients, which together produced a thriving ADR practice.

Everyone in ADR has a role in building ADR into the kind of profession where we all want to work and thrive. In the spirit of Presidential Inaugural Poet, Amanda Gorman, we can be the change that we want to see in this profession.

Arbitrate.com welcomes all arbitrators of African descent who wish to be included in our Directory of Black Arbitrators. We believe in promoting diversity, equity and inclusion within the arbitration field and are committed  to showcasing the talent and expertise of individuals from all backgrounds. If you are an arbitrator of African descent interested in being part of our directory, please don’t hesitate to contact Damini Mohan at damini@mediate.com.

author

Katherine Simpson

Dr. Katherine Simpson, FCIArb., is an arbitrator based in the US and London, United Kingdom (33 Bedford Row Chambers). She has served as sole arbitrator in international disputes conducted under the Commercial Rules of the American Arbitration Association ("AAA") and has conducted virtual hearings. She has been involved in over…

author

Damini Mohan

Damini Mohan is a legal professional from Bengaluru, India. Holding a Bachelor of Business Administration and a Bachelor of Law (LLB Honors) from Alliance University India, Damini's academic foundation laid the groundwork for her legal career. Engaging in a summer program in Brussels, she studied European Business Law and World…

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