Selecting Arbitrators: Words matter - and no more references to "IBM"
What are the barriers to appointing diverse candidates as international arbitrators? In relation to the appointment of women, I concluded back in 2012 that the answer was far from straightforward. I noted that factors impacting women included the effect of pipeline leak, implicit bias and lack of visibility. These factors have not really changed over the intervening period. Efforts are being made to address all three factors but with varying degrees of success. However, to the list I would now add as an impediment to women being appointed as arbitrators the way that society sees men (and, arguably, white men) as the human default. This is pervasive across society as a whole, but I would argue that the assumption that an arbitrator is ‘male-unless-otherwise-indicated’ is one that seems endemic; and it is an assumption that is made by both men and women arbitration practitioners. In conversations or presentations, we refer to an arbitrator as ‘he’ or the chair as the ‘chairman’. I have lost count of the number of times I hear speakers at conferences, both on the podium and from the floor, unconsciously use ‘he’ when refering to an arbitrator. That observation applies to men and women equally. In writing, using ‘he’ as the generic masculine will not be read that way, it is read overwhelmingly as male. According to Caroline Criado Perez, author of “Invisible Women”:
“when the generic masculine is used people are more likely to recall famous men than famous women; to estimate a profession as male-dominated, to suggest male candidates for jobs and political appointments. Women are also less likely to apply, and less likely to perform well in interviews, for jobs that are advertised using the generic masculine. In fact, the generic masculine is read as so overwhelmingly as male that it even overrides otherwise powerful stereotypes, so that professions such as ‘beautician’, which are usually stereotyped female, are suddenly seen as male.”
As we have a deeply male-dominated culture (and particularly in such a male-dominated profession as the law) the male experience is seen as universal and the female experience is seen as niche. Rather like we have the English football team and the English women’s football team; we are risking creating arbitrators and female arbitrators. Although the engaged discussion that has taken place in the last decade on the lack of women in our field is to be welcomed, we must avoid underscoring the notion that a female arbitrator is somehow a different creature from the (default) male arbitrator. This is exacerbated by the suggestion that there is a risk inherent in choosing someone other than the default arbitrator.
Just as I pleaded that we retire the phrase ‘pale, male and stale’ as being an oversimplification of the issues we face on diversity and inclusion, I now make a similar plea in relation to the phrase ‘no one ever got fired for hiring IBM’ to defend choosing a non-typical arbitrator. A few years ago, this refrain was trotted out to suggest that if you chose the default (male, usually white and, by implication, experienced) arbitrator you would not be criticized. Despite the conversation on diversity having moved on significantly in recent years, I still hear this phrase far too frequently. We must stop insinuating that non-typical arbitrators are not "IBM". There is a plethora of highly experienced diverse arbitrators active in our field. It is simply wrong to continue the myth that by selecting a diverse arbitrator parties are somehow opting for a lesser product.
