Why are women sidelined in arbitration?

Whenever the topic of diversity of women in arbitration is discussed, the closet description that comes to mind is “pale, male and stale”. A lot of effort is being made in the arbitration community on the importance of diversity and the promotion of female professionals in arbitration; as a result, heated debates around the source of the problem and the reasons for its existence have ensued. Research suggests that having a gender balanced arbitration tribunal leads to a more legitimate and efficient arbitration process. This does not necessarily mean that diversity within the tribunal would have an impact on the final outcome of an arbitration, but that it will essentially affect the way that outcome is achieved.

Parties and counsels spend a great deal of time scrutinising the legal, ethnic and cultural backgrounds of arbitrators before appointing them, including their competence, skills and ethical behaviour. But still, not much attention is being given to the gender of the arbitrator. One could ask why it would really matter to the parties to have female arbitrators if the top tier male arbitrators are already available, and this school of thought is particularly difficult to change given the private nature of the arbitration process, whereby parties should be at liberty to choose the arbitrator they deem fit, be it a male or female. This is also in light of the lack of conclusive evidence that having female arbitrators on an arbitration tribunal would improve the outcome of the arbitration.

Determining whether a good decision was reached by a tribunal is subjective anyway. In my view, apart from the impact that a gender balanced tribunal can have on the quality of the arbitration, the importance of having a diversified tribunal stems from the simple fact of fairness and equality. Why would capable and qualified female professionals not be granted equal opportunities to win arbitrator mandates as their male peers?

Male-dominated sectors

There is a notable absence of female arbitrators in the Middle East. When I say female arbitrators, I do not necessarily mean female lawyers but also female professionals and experts in certain industry sectors. For instance, construction disputes are one of the most common types of arbitration disputes we see in this region and while there are a good number of female construction lawyers in the market, there is a very narrow pool of female construction professionals or experts. The obvious reason for that derives from the fact that the construction industry is heavily male-dominated; you would rarely come across a female engineer or quantity surveyor in the region. I believe that the absence of female professionals and experts in certain industry sectors is one of the main reasons why we do not see a lot of female arbitrators in the region.

I also believe that another key reason why diversity in arbitration is still an issue, not only in the region but also internationally, is because most of the key players in arbitration are unconsciously biased: I like you because you are like me. As human beings, we tend to be biased to a certain group of people; i.e. people who look like us or sound like us. Those we feel familiar with. As a result of that, we prefer to choose to work with people who share the same nationality, gender, race and age.

I have personally witnessed this in my professional career: when sitting as a co-arbitrator in a case where I had to choose the chairperson with my fellow co-arbitrator, the main focus of my co-arbitrator was to appoint someone who shared the same nationality, gender and legal background. Unconscious bias usually exists without us noticing it.

It is often said that change happens from within. As such, the simplest way to deal with the issue of diversity in arbitration is to start with ourselves. We can spend years talking about the importance of diversity and inclusion but if we do not train ourselves to not be biased, it is unlikely that this issue will be resolved in the near future. While arbitration institutions are best placed to take the lead, every key player in the arbitration field can play a role in enhancing diversity. Below are some tips on promoting diversity. •

Law firms and companies should educate their staff about the existence of unconscious bias and ways to deal with it; •

Legal counsel should ensure that they propose female candidates into the list of proposed names to their clients; •

When selecting the presiding arbitrator to a tribunal, arbitration nominees should consider qualified female candidates; and •

Successful female arbitrators should act as mentors and promote young female and diverse candidates.

Hopefully by adopting the above approach, and having the initiative to make the change ourselves, we will be able to see greater gender diversity in arbitration in the near future.

Research suggests that having a gender balanced arbitration tribunal leads to a more legitimate and efficient arbitration process