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. Part one contains an introduction to the state of diversity in international arbitration, and how checklists can help achieve excellence. This 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.
This simple ten-point diversity checklist (set out in part three of this blog) should ensure that, while external and in-house counsel, tribunals and institutions progress a case, they do not inadvertently overlook for promoting diversity and inclusion along the way.
In particular, the checklist offers practical tips for helping to make sure that international arbitration proceedings work as smoothly as possible for diverse practitioners and especially for advocates with young families and those with significant care responsibilities, whilst improving their quality of life. This likely also improves further the quality of submissions by removing unnecessary time pressure. The checklist also seeks to ensure that proceedings offer as many drafting and advocacy opportunities to young and diverse practitioners as possible. The straight forward idea is that the more diverse talent is retained, the easier it becomes to appoint diverse talent as arbitrator, partner and to other senior roles.
The ten points are as follows:
This checklist does not capture every aspect of diversity and inclusion exhaustively. It focuses on young practitioners and those with care responsibilities because this is one area where the arbitral stakeholders can take inexpensive and easy-to-implement steps during the arbitration to benefit this cohort. There may be other checklists. This is but a start and no doubt an iterative process.
A note also on data protection. The surveys will collect detailed personal data and result in individuals in a given arbitration being fairly easily identifiable by those participating in it. Tribunals and institutions must therefore ensure that the data is stored confidentially and securely, to minimise the risk of leaks and in accordance with data protection regulations. This is however not a reason not to survey: much of the data within the scope of an international arbitration can already fall within the scope of data protection regulations and is potentially vulnerable to cyber security hacks. All data must therefore be secured in any event. And, data is power: institutions already compete on the quality of their year-end statistics. Diversity surveys of the kind proposed here can offer invaluable data from which institutions can draw trends. The data allows enlightened institutions to take an early lead in reporting diversity trends as part of their branding.
And of course, ticking boxes is not the goal of any checklist. Rather, it creates a systematic awareness in every stakeholder in every arbitration to accommodate diverse talent in the running of the arbitration. Over time, systematic checklist completion leads to a systematic collective habit to ensure that each arbitration is as inclusive as possible. As noted by Dr Gawande, The Checklist Manifesto – How to Get Things Right (Profile Books, main ed, 2011), “[p]eople need room to act and adapt. Yet they cannot succeed as isolated individuals, either—that is anarchy. Instead, they require a seemingly contradictory mix of freedom and expectation—expectation to coordinate, for example, and also to measure progress toward common goals.” In short, systematic practice makes significant progress. To illustrate, when Dr Gawande introduced the surgical safety checklist, he and his co-investigators were surprised to see similar percentage reductions in complications whether the setting was a gleaming London or Boston hospital or in a resource poor facility in Africa or India: the rate of deaths and surgical complications fell by more than one-third across all eight pilot hospitals. The rate of major inpatient complications dropped from 11% to 7% and the inpatient death rate following major operations fell from 1.5% to 0.8%.
Increased diversity and inclusion stems from genuine dialogue and flexible thought. In this case, it is a dialogue between the tribunal, institution, counsel and their clients. Counsel teams are often already focused on the importance of diversity and inclusion within their teams. However, they rightly tend to also be very sensitive to the tribunal’s wishes and directions and may be reticent to push back on procedural deadlines. Expectation of an inclusive procedure raised by the institution and tribunal will therefore support lead counsel: it will give external and in-house counsel backing to explain to the client’s board why a diverse team composition, and an equal distribution of advocacy opportunities, are expected. To quote Dr Gawande once again, “under conditions of complexity, not only are checklists a help, they are required for success. There must always be room for judgment, but judgment aided—and even enhanced—by procedure.”
The author is a globally leading international arbitration practitioner, sits as arbitrator and lectures as External Professor. She established a global Parent Lawyers Group at her prior firm Latham & Watkins to allow men and women to flourish and progress while parenting. Hanna wishes to thank her husband Jonathan Roos for his support in brainstorming this blog and in parenting two loud lives. Some source references have been removed due to the blog format but can be obtained from Hanna directly.
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