NOVEMBER 2019 | AROUND THE ABA

Football rule lights way to diversity improvements

The contact sport of football would appear to have little in common with the legal field of dispute resolution, where parties try to negotiate results rather than run over each other.

But at recent American Bar Association program, “The Importance of Using Diverse Neutrals,” the legal practitioners were enthralled to learn about preliminary research that showed application of something akin to the National Football League’s “Rooney Rule” had significant positive impact in diversifying the selection of neutral intervenors or mediators in alternative dispute resolution (ADR).

“We in the community need to get out of our silo-centered approach,” said Homer LaRue, professor at Howard University School of Law and former chair of the ABA Section of Dispute Resolution. “It is time for us to see the problem of a lack of diversity in ADR as a national problem.”

LaRue offered new research conducted with a colleague that showed the more diverse the pool of prospective neutrals, the greater the likelihood that a diverse member will be selected to serve. He likened the process to the NFL’s 2003 Rooney Rule, which requires every team with a head coaching vacancy to interview at least one or more diverse candidates. In 2009, the NFL expanded the rule to include general managers and equivalent front-office positions.

ADR is the latest example in the broad legal field of how the Rooney Rule is gaining traction as an important tool to help diversify the profession, particularly when it comes to adding more minority candidates to the decision-making process.

In January, a federal judge penned a commentary in the National Law Journal titled, “Why We Should Adopt a Rooney Rule for Law Clerks.” In the commentary, U.S. District Judge Vince Chhabria of the Northern District of California explained why he won't fill a clerk slot until he's interviewed at least one minority candidate and one candidate from a non-“T-14” law school — defined as a school that falls outside of those considered as one of the 14 best in the nation.

“I don’t always hire law clerk candidates who meet this description,” he wrote. “But interviewing off-the-radar candidates has sometimes led me to hire a fantastic person who might not originally have been given an interview. Other times I’ve not hired the person, but the interview with me has led to interviews with other judges (often on my recommendation). Overall, my hiring process has been better because of this practice, and it has resulted in stronger chambers.”

LaRue, a veteran of the ADR field, touted adoption of the Rooney Rule for ADR at a panel discussion at the ABA offices in Washington, D.C. on Oct. 22. The program, sponsored by the Mid-Atlantic Regional Chapter of the ABA Section of Dispute Resolution, was held in conjunction with ABA Mediation Week, which officially ran Oct. 13-19 but included events running throughout October.

He explained that the approach is based on the Mansfield Rule, which is an adaption of the Rooney Rule and a national initiative designed to close the gender and diversity gap in the legal profession. Named after Arabella Mansfield, the first woman admitted to the practice of law in the United States, this rule traces its origin to the 2016 Women in Law Hackathon hosted by Diversity Lab in collaboration with Bloomberg Law and Stanford Law School.

The official rollout for the Mansfield Rule was June 2017 with 30 law firms providing the initial commitment. Critics have complained that such a rule represents a form of reverse discrimination and violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.

But in the law arena, Rooney Rule advocates argue it is not a quota system but merely provides a framework for diversity efforts by requiring that participating law firms consider at least 30 percent women and diverse attorneys for promotions, senior-level hiring, significant leadership roles and inclusion on client proposals.

Although LaRue’s proposal generated considerable attention, the Oct. 22 panel discussion on neutrals and diversity prompted a wide-ranging discussion on efforts to bring more diversity to the ADR field. This year’s theme of Mediation Week emphasized Resolution 105, approved by the ABA House of Delegates in August 2018, which reaffirmed that the ABA goal of diversity and “full and equal participation in the legal profession” applies to the ADR arena.

Chris Kwok, founding co-chair of the Dispute Resolution Committee at the National Asian Pacific American Bar Association, said the field has more than a “pipeline problem” of attracting younger, diverse lawyers to ADR. He noted that traditionally mediators are older attorneys who agree to mediate disputes to stay involved later in their legal careers. “I think we have a structural problem that takes a long time to work out,” he said.

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