I link here to a great post from my colleague Irene Ten Cate on how the world of arbitration needs to incorporate more women–even by asking for binders of them! This is a timely concern duly noted in the latest Alternatives newsletter with an article by Laura A. Kaster and in an column in the NYSBA Dispute Resolution Lawyer last spring by former New York Chief Judge Judith S. Kaye entitled, “Deja vu: A Personal Reflection on Women in International Arbitration.” The data that Irene cites in her post–only 6.5% of arbitrators in either international commercial or international investement arbitration cases–remains troubling.
Gus Van Harten, one of the researchers that has looked at this problem,
suggests that the answer to the gender imbalance issue lies in actively bringing female candidates to the attention of those who select arbitrators. His proposed solution is to create a closed roster of ICSID arbitrators ‘based on an open and merit-based process.’ He expresses the expectation that a roster system will improve the quality of ICSID arbitration, especially if the input of organizations like Women Jurists/Femmes Juristes, the International Federal of Women Lawyers, and Arbitral Women is sought to ‘help loosen the hold of the boys’ club.’
Many organizations, the ABA Section on Dispute Resolution included, are looking at what can be done. In the meantime, and despite the hilarious visual, perhaps binders full of women is exactly what we need.
This situation stems from the greater inability of women to enter legal career tracks that led to the advancement opportunities necessary to be qualified for the positions. I have struggled, like many women, for my entire adult life to have a legal career and children. I grew up watching my older sisters become successful lawyers, only to struggle with the work and life balance once they chose to start families. I chose to postpone attending law school, while I married and had three children in my twenties. My husband was free from the constraints of caring for the children and achieved career success , while academically I had an equal or superior undergraduate education and opportunities. The attitude about and responsibilities for caring for children must be equally balanced between men and women for women to achieve higher positions in all careers. Daycare costs and parenting responsibilities reduce an employees ability to work the extended hours required to reach the top positions. Employers reinforce the career demands with last minute hours, travel requirements, and bonus incentives, forcing many families to select one person as the primary caregiver. The five to ten years lost creates a permanent financial inequality that compounds to reduce career advancement for a woman’s entire career.
I wish I could advise my two daughters on how to prioritize family and career. Even women who chose not to have children or spouses are held back because employers feel that they will in the future. Until more employers allow employees to achieve a reasonable balance, women will loose out as a group as they prioritize providing care for the young and old in their families.
Yeah, maybe we do need more binders. But on the other hand it could be a matter of concealment, couldn’t it?
Join WIDR (Women in Dispute Resolution), a new committee of the Dispute Resolution Section of the ABA. It is dedicated to creating awareness of the advancement of women in the profession, networking and mentoring. Are women participating in the DR field, particularly in commercial arbitration and mediation, proportionate to their numbers and talent? Is their subconscious bias against choosing women during the selection process? What can we do to overcome it?
Lest we imagine that this dynamic is confined to the world of arbitration practice, I’m afraid that a dramatic gender division exists among law faculty members teaching arbitration. Based on the study I published a few years ago, at least, the numbers and percentages of women teaching arbitration were abysmal — and getting worse. These data flew in the face of my impressions, because many talented women immediately came to mind when I think of leading legal scholars looking at arbitration. But at least the AALS data suggest a very different picture within the academy. The faculty hiring process likely needs attention as well…
I wrote an article for the April ABA Dispute Resolution Journal entitled, “Gender Diversity in Commercial Arbitrator Selection.” I cited many of the same statistics, and noted that the situation domestically is not as good for female commercial arbitrators as it is for females hoping to become equity partners at law firms. I think two more options should be reviewed as well. The first is to openly call attention to the implicit bias that has male and female litigators, who have the most to say about arbitrator selection, overlooking women arbitrators. My colleague Deborah Saxe has written an article entitled, “PUT A WOMAN ON THE LIST!!” to get lawyers to consciously remember to list women neutrals for mediations and arbitrations. The second avenue is for corporate counsel to hold their law firms accountable for the number of women arbitrators they select. To be fair, law firms like to go with the old boys’ network because it’s predictable. So corporate clients must tell them that, predictable or not, they want to see their arbitrators better reflecting the general population. I’d be happy to send you my Journal article–just let me have your e-mail.