This article was first published on the Thomson Reuters Practical Law Arbitration Blog, here.
This three-part blog provides a diversity checklist to help retain and promote young and diverse talent in international arbitration. This first part contains an introduction to the state of diversity in international arbitration, and how checklists can help achieve excellence. Part two discusses the rationale for a ten-point diversity checklist in arbitration. Part three sets out the checklist itself, as well as two associated questionnaires for use at the start and end of arbitration proceedings to allow the tribunal and institution to learn about participants’ experience of the proceedings from a diversity and inclusion perspective.
Diverse teams make more informed and creative decisions, and problem solve faster. For this reason alone it is right that increased diversity and inclusion has become a shared goal in international arbitration. However, despite ongoing laudable efforts, work remains to be done. In 2020, leading US international arbitration practice groups have only 1.5% of attorneys of African descent, with 17 of 37 practice groups having none. In 2019, women still comprised only around 21% of all international arbitrator appointees, with the LCIA pushing the average figure to 33% in 2020. Although the proportion of women solicitors in any private practice in England increased to 49% in 2019, just 18% of women in private practice were partners, compared to 40% men. This is a markedly different attrition rate. And this is but a selection of figures. Statistics for the retention of practitioners with other “diverse characteristics” are even harder to come by. More must also be done to fully appreciate and understand issues regarding intersectional representation in international arbitration.
One proffered justification is that “the talent is just not there to appoint”. Let us assume for the moment that this controversial statement is true and that by the time of the promotion round the diverse talent has left the law. Why might that be?
A particular diversity pressure point can be parenting. This is one of my own diversity characteristics. It differs from others in that it comes with a real time handicap; putting in long hours at work is not easy if one is also needed for making bread stick soldiers for dipping into eggs, looking for lost gloves, overseeing homework and listening to little humans’ daily highlights and worries at bedtime, for a number of hours a day. Whilst parents can get support in these responsibilities, their role cannot be outsourced to a school, nursery or childminder entirely; it would not be enlightened to expect fathers and mothers not to be present in their children’s lives. As a result of these pressures, life as a young parent and arbitral practitioner may become pressured, especially for single carers and in dual career households. How can male and female parents jump through the hoops of back-to-back submission deadlines on several cases running in parallel, whilst sitting as arbitrator and trying to home-school children mid-pandemic and stay reasonably well rested and healthy? Those caring for elderly loved ones, or chronically ill relatives and others too, can experience similar pressures.
But carers are not the only focus group and do not have moral priority; everyone’s private time and quality of life have value irrespective of whether they choose to take on caring responsibilities. The arbitration community would also do well to offer young practitioners early advocacy opportunities, to train top advocacy talent from early on and to build on law students’ mooting experience. Law firms will have a special incentive to avoid losing talented solicitors who look to move to the bar in search of more advocacy opportunities.
The power of a checklist
It is therefore worth reflecting on how to smoothen the path for diverse practitioners and to make their careers in international arbitration as rewarding as possible, to ensure long-term retention of talent.
To this end, what if there existed a practical, easy-to-implement tool that helps retain diverse talent? This would amount to a win for clients, law firms, arbitrators and institutions alike in the quest to promote increased diversity and inclusion in international arbitration.
Allow me to offer one: a checklist. It may appear an almost insultingly simple tool for brains used to complex analysis. But its beauty is that it facilitates systemic change: rather than relying on legislative or institutional diversity targets, its philosophy is to “push the power of decision making out to the periphery and away from the centre. You give people the room to adapt, based on their experience and expertise. All you ask is that they talk to one another and take responsibility. That is what works”. Simply put, a checklist focuses systematic attention on must-dos and so establishes a higher standard of baseline performance. Whilst there may already exist pockets of model diversity and inclusion in arbitration (and this author certainly has benefited from such excellence in her career), a checklist can introduce a higher standard of performance across our global field.
Dr Gawande examines the astounding success of checklists in The Checklist Manifesto – How to Get Things Right (Profile Books, main ed, 2011). The checklist has revolutionised other professions ranging from engineering, aviation, medicine and economics. Its introduction in intensive care units has resulted in certain infection rates to dropping by over 60%, hundreds of millions in cost savings and thousands of lives being saved.
It is no wonder therefore that checklists are already popular in the law, for example to avoid missing calendar dates and clerical errors. Indeed, it is commonplace to have for example virtual hearing checklists, as well as award-drafting and emergency arbitration checklists, to mention a few.
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