Originally from:

Journal of American Arbitration (JAA) - Vol. 4, No. 1

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ARTICLES

An Essay Challenging the Racially Biased
Selection of Arbitrators for Employment
Discrimination Suits
By Michael Z. Green

I. INTRODUCTION
There is virtually no evidence out there. . . .We’re making this up.
We’re saying if you have a black mediator [or arbitrator] . . ., then
the . . . alleged victim is going to feel better. I’m not going to pick
people on that basis and if I were representing a claimant, I
wouldn’t pick a person on that basis. I just think this is
overstated. . . . My point is . . . we don’t have the empirical
evidence on it. . . . 1
I don’t think we need data. I think we can know just from our life
experience. Let’s say there’s a group of arbitrators but they’re not
diverse; if . . . the only arbitrators that ever showed up were white
men, over time it’s going to have a lack of credibility, just like if
juries were made up of all men.2
I don’t know. . . . I assume the attorneys representing the plaintiffs or
charging parties, they’ll be making decisions as to who’s the best
mediator or arbitrator. And that’s what’s going to lead to
acceptability . . . . They’re not making it on the basis of skin color. . . .
I want to downplay the importance of this element. I think from the
standpoint of opening up the field, we ought to be as open as possible
and if we can, in terms of recruitment, I think that’s a good thing.
But I think you can’t make out the case that it [race of the arbitrator
or mediator] really has a significant impact on acceptability.3
These conflicting statements in an exchange between two men who
both represent employers4 in discrimination disputes, Samuel Estreicher