ADR CORNER
Do You Think About Diversity Before Hiring a Mediator or Arbitrator ?
LAWRENCE GORDON
I sincerely believe that the short answer is probably not . How can it be a fair process if neutrals of color are not involved in meaningful numbers ? The pool of Mediators and Arbitrators should reflect the community ' s racial , ethnic , and gender diversity .
According to the 2020 Census , Florida has a population of twenty-one and a half million people . Seventeen percent of Florida ’ s population is African American . This means that Florida has approximately two million , eight hundred thousand African Americans living in the state . These numbers would lead one to think that there are over five hundred Florida Supreme Court Certified Circuit Civil African American mediators practicing in Florida , but nothing could be further from the truth .
In 2020 , I published an article , in this column , about the lack of diversity among Circuit Civil Mediators in Florida , “ ADR In Florida , the Severe Lack of Diversity .” In 2020 African Americans made up 3.8 percent of Certified Circuit Civil Mediators . This means that there were one-hundred twenty-two ( 122 ) African American mediators . Little has changed since that time . According to the Florida Dispute Resolution Center , the number has grown to 4.04 percent which translates to one-hundred twentyseven ( 127 ) African American Circuit Civil Mediators .
Compounding the problem is the fact that a similar lack of diversity exists in the Florida Bar which oversees all the attorneys practicing law in Florida . There are approximately one hundred and ten thousand lawyers in Florida . Unfortunately , less than three thousand are African Americans .
This means that there is a better than even chance that an African American participating in mediation will be represented by a white attorney and have a white neutral presiding over the negotiations . Most people of color who are involved in the mediation process very seldom see anyone else who looks like them at the table . Fair representation and equal access are essential to an unbiased system of justice . One cannot win if one is not allowed in the game . How can we continue to justify having slightly more than two hundred mediators of color in all Certified categories ?
Even an African American billionaire as prominent as JayZ must struggle with the issues surrounding the lack of diversity among mediators and arbitrators . In 2018 JayZ was involved in a 204-million-dollar arbitration . He noticed that there were very few African American arbitrators for him to select from . He complained to the Court which agreed that the lack of African American arbitrators was discriminatory under the Constitution of New York State . The Court ordered arbitrators of color to be included in the pool of neutral professionals .
Imagine that you are a plaintiff with a profoundly serious problem . Perhaps you are litigating a multimillion-dollar business dispute or have lost a body part or function in a serious auto accident . Your case has been ordered to mediation by the Court . As you sit there looking around the room of multiple attorney defendants and mediators , you soon become aware of the fact that you are the only African American in the room . Suddenly , your pulse quickens , and you are concerned . You think to yourself can I get treated fairly under these circumstances ? This situation happens regularly . I have had several people of color describe this scenario to me . I usually get to meet them when the case is mediated a second time with me serving as a mediator of color . They appear to breathe a sigh of relief when they meet me at the second or third mediation . One must wonder , can fairness and equality prevail under the above-described conditions ? Just the fact that one thinks about the lack of diversity , equity , and inclusion during the mediation skews the playing field . We are all creatures of the environments that we have been exposed to during our lifetime . We all have our biases and prejudices . I would argue that there is a real possibility that our biases and prejudices might become a factor when there is only one person of color involved in the mediation process . We as people often tend to migrate towards and assist those parties who look like us .
Simply put , diversity is the presence of differences within a given group or setting . A diverse group or organization is one in which a variety of social and cultural characteristics exist . After reading the definition on the Florida Bar website , I have a better understanding of the problem . It reads , " diversity has a dynamic meaning that changes as the demographics of Floridians change . Apart from differences in race , color , gender , and religion just to name a few . These differences are constantly in flux . Defining diversity on current differences would limit its application to future changes and likewise , restrict or limit the Bar ’ s consideration of and response to significant changes ."
SPOKEN LIKE A TRUE LAWYER . Lawyers aside , the problems caused by the lack of diversity are both systemic and institutional . Nothing will change until all stakeholders take bold steps to make diversity , equity , and inclusion a priority .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /
Lawrence Gordon is President of Phoenix Mediation , LLC . He is both a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Qualified Arbitrator . He is a member of the Florida Academy of Professional Mediators . He currently serves on the Florida Bar Board of Governors Advisory Committee . He is a former multi-term member of the Florida Bar Unauthorized Practice of Law Committee . He recently served on the Florida Bar Fifteenth Judicial Circuit Grievance Committee “ D ”. He previously served on the Board of Directors of the PBC Trial Lawyers Association ( now known as the PBC Justice Association ). He is currently serving his fifth term as Vice Mayor / Councilman in Haverhill , Florida . He currently serves as President of the PBC Caucus of Black Elected Officials and 2nd Vice President of the PBC League of Cities . He is a member of the Florida Bar and PBC Bar Association and serves on the ADR Committee as Municipal Liaison and on the Wrongful Death and Personal Injury Committees . He was a licensed Florida Adjuster for 35 years . He has published several articles in the area of Mediation / Alternative Dispute Resolution .
Riding the Rocket Docket or Finding an Exit Ramp to Resolving Your Case
Friday , December 2 nd , 2022 10:00 A . M . - 2:00 P . M .
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PBCBA BAR BULLETIN 6