Promoting the selection of diverse neutrals in mediation and arbitration has long been a matter of gentle suggestion to clients that maybe they want to try a newer mediator/arbitrator who can bring a diverse perspective. In the majority of cases, clients (often big corporations) choose the person with the longest track record or the one with the biggest name recognition. That person is almost always white, and male, due to the long history of overt and structural racism and sexism in America.
In comes Jay-Z. His legal team connects the dots between a diverse panel of neutrals and due process under the law. According to news sources, they argued that the absence of African American neutrals on the AAA panel (for large and complex cases) is a violation of equal protection and equal opportunity to a fair and impartial adjudication. Although the NY Supreme Court Justice only issued a temporary injunction on the matter so that it can be argued in full later in December, the precedent has been made already in the news media that lack of diversity can equal lack of due process and equal protection in the ADR context. This is a groundbreaking development and I look forward to hearing how it develops.
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