Diversity Checklist For International Arbitration (Part Two)

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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:

• Invite diverse teams at the outset. The tribunal’s early communications with the parties are an opportunity to ensure a diverse team composition from the start of the arbitration. The tribunal can take the opportunity to remind clients and counsel that increased diversity and inclusion in international arbitration is a shared goal and to solicit the contact details of all client and counsel team members. The tribunal, with the support of the institution, could then send out a quick, anonymous questionnaire to all counsel and client team members, to assess the gender, age and ethnicity balance of the teams and to identify hidden diverse characteristics such as sexual orientation and whether counsel team members have young children or other care responsibilities. This exercise will also encourage client and counsel teams to expressly consider the diversity score of the team. If the in-house team and the external counsel team end up being homogenous, there may be a legitimate explanation. However, at least counsel and the client will have been encouraged to consider the issue. A suggested model questionnaire is outlined in part three of this blog.
• Set sensitised procedural timetables. In setting procedural timetables, the tribunal will do well to send out a draft timetable for comment, and specifically ask if the timetable works for team members with young families and other significant care responsibilities. The tribunal Secretary may be in a similar situation, drafting a procedural order with a toddler hanging off the trouser sleeve. Clients, tribunals and arbitral institutions will rightly want arbitrations to proceed expeditiously. This goal need not be compromised, however: an adjustment of a week here or there to account for school holidays will not compromise expediency but is likely to result in improved quality and cost-effectiveness of submissions.
• Revisit procedural timetables. As the arbitration progresses, the tribunal should check in periodically to ensure that the procedural timetable still works, and circumstances have not changed. The onset of the COVID-19 pandemic is a good illustration of an unexpected game-changer that put several practitioners under immense pressure at home, caring for unwell parents or spouses, or juggling overwhelmed children trying to learn remotely, whilst keeping up with back-to-back filing deadlines.
• Encourage young counsel to seize advocacy opportunities. The first case management conference is an opportunity for the tribunal to remind client and counsel teams that it welcomes seeing younger practitioners do advocacy on procedural calls and at hearings. This will allow lead counsel and client to divide work streams from early on. For instance, the other side may have a witness whose testimony is important but not determinative of the outcome of the case. That is an ideal opportunity for a young practitioner to work their cross-examination muscles. Planning early will allow junior counsel to obtain cross-examination training from lead counsel and from professional training outfits and to digest the relevant factual record carefully, so that they feel ready by the hearing.
• Ease time pressure on advocacy. There can be great time pressure at hearings and particularly virtual hearings, with less than five hours of active hearing time scheduled per day. Much less time is typically scheduled in international arbitration for say testimony than in many national courts. Allowing for a reasonably unrushed timetable will allow less experienced young practitioners to advocate and to do so calmly and successfully.
• Train to boost confidence and authenticity. Doing advocacy can be an immensely rewarding part of a hearing. However, diverse advocates may self-select not to seize speaking spots if they feel and sound different to senior counsel advocates. I propose regular counsel team workshops to address together what is effective advocacy and how to harness one’s personal style. A female voice, a young voice or a foreign-accent may be just as effective as what is perceived as a traditional male voice. Training can focus on adopting the correct pauses, projection and emphases to enhance delivery further. A team work-shop will also prompt everyone to challenge any unconscious assumptions about what amounts to effective advocacy. Having the team’s encouragement and support can make a huge difference to junior talent starting out.
• Draw support from institutions. Institutions could support the tribunal’s role in advancing diversity and inclusion, for instance by helping to devise and analyse the diversity questionnaire and expressly identifying in its rules that the tribunal should invite comment on the reasonableness of a draft procedural timetable. For instance, the International tribunal for the Law of the Sea will be amending its rules to render them gender inclusive. This is a welcome step but does not go as far as addressing the practical suggestions in this article.
• Invite young practitioner CVs with a view to future arbitral appointments. The tribunal and institutions may wish to systematically request CVs from all counsel team members, or at least from senior associate upwards, to add to their data bank of candidates for when the next arbitrator opportunity comes along. On the counsel team side, one team member could be tasked with pulling together such CVs proactively and sharing them with the institution.
• Invite feedback. At the end of each phase of arbitration, the tribunal and institutions can run a simple survey amongst client and counsel team members, asking how well the proceedings ran from a diversity and inclusion perspective and how likely the survey respondent is to stay in international arbitration. The survey should, again, be anonymous but identify the gender and ethnicity of the respondent, and whether they have significant care responsibilities. Such feedback would be analysed on an institutional level rather than on a case level to ensure confidentiality and honest responses – the aim is to create systemic change, not to focus on any one case or team. Please see a model survey in part three of the blog series.
• Take credit. Tribunals and law firms may wish to publish on their profiles that they have followed the present checklist in arbitrations. When counsel teams and clients next come to select arbitrators, they may wish to take into consideration that selecting said person will likely provide a better than average awareness of the need to accommodate stakeholders with a diverse characteristic and hence, according to research, lead to better outcomes.

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%.

Conclusion
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.