POST HEARING EVALUATION EPISODE 4 – DIVERSITY

DIVERSITY

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

4 August 2021

ARBITRATION #148

In this last episode on the post-hearing evaluation, we make a final observation on the growing importance of Diversity.

Research carried out by McKinsey & Company finds that companies with high diversity re gender, race + ethnic composition are more likely to have financial returns about national industry norms. Interesting but arbitrators are not in business or are they? The arbitration tribunal is usually three or five persons so does the McKinsey research for business suggest that a diverse Tribunal adds more to the process than a one culture/one gender approach?.

At first sight, a “one” approach does seem wrong. Narrow thinking, cultural bias even prejudice against parties from a different background if all three arbitrators have a common culture that is out of step with the parties.

But first things first – arbitrators have to be top-notch. They perform essential functions in support of commerce and trade. They have to be good. So arbitrators need to be tested, re-examined and subject to active continuing professional development. Left just to “soft” self-evaluation, arbitrators can become stale + predictable with little new thinking coming into play. So, we need outside scrutiny – on a regular basis. We need to be challenged.

But being a top-notch arbitrator is a guarantee only of your skills – your knowledge of the trade, of the law, of the arbitral process but it is not a guarantee of quality Awards. The arbitrator is one issue – the arbitration is another and here we come back to the composition of the Tribunal. Is it “samey” – dull, predictable composed of people of the same culture? Or is it challenging and alert to a new set of views and opinions – all operating within the accepted knowledge and understanding of the arbitration process but with arbitrators drawn from different backgrounds?

Over to the Arbitration Institutions

Tomorrow – a new Mediation
It could be a dispute in a school or in a Hospital or even the House of Commons.

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