Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well as rap music mogul Jay-Z’s late 2018 effort to identify more black arbitrator candidates for his commercial arbitration matter, concerns about the lack of diversity among arbitrators have become even more prominent.
However, the core of the problem remains: despite efforts to increase diversity in arbitrator pools, parties still have discretion to select the arbitrator. Businesses (and even, to some extent, employees) have no incentive to select an arbitrator solely because of the arbitrator’s diversity profile. Representatives for businesses and employees want to win. They believe that result is best achieved by selecting arbitrators they know. Risk aversion prevents those representatives from selecting unfamiliar black and other nonwhite, male arbitrators, despite ongoing diversity efforts to populate arbitrator pools with more of these individuals.
This Article explores how this “win first” dynamic hinders attempts to address arbitrator diversity and suggests a different approach by neutral service providers that mimics the selection of federal judges. This new selection process will involve the creation of a pool of diverse arbitrators with outstanding qualifications. Then, instead of having the parties choose the actual arbitrator, a neutral service provider will select the arbitrator assigned to the parties in a random manner, similar to how federal courts assign judges to cases without party input.
