chevron-down Created with Sketch Beta.
October 27, 2023

What’s the Fallout of the SCOTUS Affirmative Action Decision for the ADR Community?

Arnettia S. Wyre, Esq., MBA

Given the specificity of the Supreme Court's decisions in Students for Fair Admissions (SFFA) v. Harvard University and SFFA v. University of North Carolina (UNC), the immediate relevance to Alternative Dispute Resolution (ADR) might seem tangential. The decisions effectively eliminated the use of affirmative action in college admissions. As seen over the past few months, these decisions are being used to take aim at programs that address diversity and inclusion. The broader implications of these decisions can potentially influence the dynamics and utility of ADR in various ways.

In 2018, the American Bar Association (ABA) adopted Resolution 105 which urges expanding ADR neutral rosters to include significantly more diverse neutrals as well as increase their selection to handle more matters. To be able to meet this mandate, there has to be significant growth in the number of diverse ADR professionals, which lags the legal profession as a whole. These decisions can adversely impact these efforts.

Here are some potential implications for your consideration:

  1. Trust in Institutions: One consequence of the elimination of affirmative action might be a decreased trust in traditional institutions, especially among marginalized communities. A key aspect of ADR is the perception of fairness in the resolution process. When trust in traditional systems wanes, there might be an increased turn to ADR as a preferred method of resolving disputes. However, if there is the perception that the legal and educational systems are becoming less inclusive, people from marginalized communities may be less inclined to trust ADR processes as a means of resolving disputes. This can undermine the effectiveness of ADR in achieving mutually acceptable resolutions. ADR is often seen as a more equitable and participatory method, especially when parties are seeking solutions that respect cultural or community values.
  2. Diversity and Inclusion Initiatives: Many ADR programs incorporate diversity and inclusion initiatives to ensure equitable access and participation. These programs may face challenges if the elimination of affirmative action leads to reduced diversity in educational institutions and workplaces. A less diverse pool of individuals may limit the ability of ADR programs to effectively address the needs and concerns of all parties involved in disputes.
  3. Representation in ADR: ADR processes, such as mediation and arbitration, often rely on neutral third parties to facilitate discussions and resolution. The elimination of affirmative action could impact the pool of qualified facilitators, mediators, and arbitrators, potentially leading to an even less diverse group of professionals in this field. As we are well aware, diverse neutrals have been lagging in this area for quite some time. Efforts have been made to increase representation, but those efforts can easily be thwarted and undermined. Parties involved in disputes need to be reassured of the neutrality and impartiality of ADR providers as evidenced by the diversity among them.
  4. Employment Disputes: A significant portion of ADR cases involve employment disputes, including issues related to discrimination, harassment, and workplace equity. The elimination of affirmative action may lead to increased challenges in addressing and preventing workplace discrimination. ADR programs will need to adapt and develop new strategies to effectively address these concerns.
  5. Training and Sensitivity: ADR professionals often receive training in cultural competency and sensitivity to effectively navigate disputes involving individuals from diverse backgrounds. If the educational institutions that provide this training become less diverse due to the Supreme Court's decisions, it could impact the quality of training and the ability of ADR professionals to effectively address the needs of diverse parties.
  6. Collaborative Solutions: ADR is often praised for its collaborative and problem-solving nature. The absence of diversity in educational and workplace settings may lead to a less collaborative atmosphere, making it more challenging to reach mutually beneficial solutions through ADR processes.

As was so eloquently stated in 2018 in the ABA Resolution 105 - Diversity in ADR Summary and Action Steps for Steering Committee Consideration, “as shown in many studies, diverse teams can improve decision-making – diverse neutrals can bring new perspectives to the table, allowing for more informed decisions. In addition, alternative dispute resolution will lose relevance, credibility and respect if neutrals do not reflect the diversity of the parties and our communities, particularly among those who feel their views and circumstances are not being fairly represented.” The same sentiments hold true today. While the direct impact of the Supreme Court's decisions on ADR programs may not be immediately evident, there are potential ripple effects. A less diverse and inclusive environment in educational institutions and workplaces can influence the effectiveness and perception of ADR processes. ADR practitioners and organizations should remain committed to promoting diversity, equity, and inclusion within their field, adapting their strategies to address evolving challenges in the pursuit of fair and effective dispute resolution.

    Arnettia S. Wy Ar Arnettia S. Wyre, Esq., MBA

    Founder & CEO, LAKE Solutions, LLC

    Arnettia S. Wy Ar Arnettia S. Wyre, Esq., MBA is the Founder & CEO of LAKE Solutions, LLC, a full-service conflict management training and development firm. For over 20 years, Arnettia has combined her legal and business acumen with a commitment to creative problem-solving to navigate disputes for individuals and businesses alike. The firm offers a sanctuary for collaboration, employing the powerful tools of mediation, facilitation, negotiation, and arbitration. Committed to moving beyond the adversarial nature of litigation and forging resolutions where all parties feel acknowledged and respected, clients are able to discover common ground while preserving relationships and being fiscally responsible. Experience the difference. Let’s connect on LinkedIn -

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.