SCC Forecast: Have we reached the gender diversity tipping point?

The tipping point happens when the early majority catches on. Maybe this is what happened last year, causing the recent upswing in women arbitrator appointments. Lise Alm explores the subject and discusses why it finally happened.

Six months ago, I wrote here about the most recent SCC diversity report, which covered the five-year period 2015–2019. When it came to gender diversity, the curve showed a steady but unexciting incline. “Do we have to accept that when it comes to diversity in the arbitration industry, change is slow and gradual,” I pondered, “maybe it is possible to change mindsets and eradicate unconscious bias so quickly that when the time comes for the next SCC diversity report, we will see exponential increases and spiked curves?”

And then came the statistics for 2020. A full 47 percent of appointments made by the SCC Board were women, up from 32 percent the year before. Similarly, at the LCIA, 45 percent of arbitrators appointed by the institution were women. In 2020, the SCC had two all-female tribunals, compared to a total of three in 2015-19. Nine tribunals had two women and one man, compared to 15 total in the previous five years. A female arbitrator recently commented on this trend, noting: “Approximately one third of my cases now have two women on the panel. None of us were appointed by the institutions. This is a radical change from what I would have said even just 4 years ago.”  

This leaves me wondering: have we finally reached that moment when the curve spikes? Is this the gender diversity tipping point?             

Perhaps you read Malcolm Gladwell’s The Tipping Point: How Little Things Can Make a Big Difference back in the early 2000s when it was wildly popular, or perhaps, like me, you read it on the beach this summer. Either way, you may remember that Gladwell defines a tipping point as “the moment of critical mass, the threshold, the boiling point” when an idea, trend or social behavior starts to “spread like viruses do”. Once I managed to look past the book’s now distasteful parallels to epidemics and wildfires, it struck me that Gladwell’s framework may provide a useful lens on the diversity issue.                                                    

Gladwell talks about innovators, early adopters, visionaries, early majority, late majority and laggards. Do you instinctively know which of these labels applies to you when it comes to appointing women as arbitrators? If not, perhaps consider instead your attitude toward smartphones, e-filing, online hearings, or – if you are a seasoned practitioner – fax machines. Were you an “early adopter” excited by the possibilities of the new technology, or a “laggard” who waited to buy that first fax machine until your clients forced you to? 

The tipping point happens when the early majority catches on. Maybe this is what happened last year, causing the recent upswing in women arbitrator appointments. If so, what explains why it finally happened?

One factor in bringing about a tipping point is a phenomenon that Gladwell calls the Law of the Few. “Success of any kind of social epidemic is heavily dependent on the involvement of people with a particular and rare set of gifts”, he writes. These people fall into three categories:

The Law of the Few is the first of three factors that Gladwell says brings about a tipping point. The other two are The Stickiness Factor and the Power of Context. 

Stickiness is about the unique qualities or packaging of an idea or behavior, which either makes it stick or not. You may have noticed a slight shift in the gender diversity debate, away from the negative “women lawyers have the same right as men to be appointed as arbitrators” and more toward a positive “appointing women allows us to broaden the pool of qualified and available arbitrators”. This reframing may have made the message more “sticky” and contagious.

Lastly, the Power of Context. This is Gladwell’s way of saying that the environment in which new ideas are delivered can have a huge impact on their spread. The soil must be fertile for an idea to take root.

In terms of this we have seen an increased visibility and reporting relating to these questions within arbitration over the last years, brought on e.g. by the ERA Pledge and the ICCA gender report. Here, I cannot help but think that also the MeToo movement, although unrelated to women as arbitrators, has made us more susceptible to the message that gender equality should be reflected in arbitral panels.

Do these factors explain the recent upswing in the appointment of women as arbitrators? Has the arbitration community really arrived at the gender diversity tipping point? I certainly hope so.

Does this all mean that we are done with gender diversity and can lean back? Absolutely not, but maybe it means that the movement is going. That we don’t have to focus as much effort on changing course here and can rather just follow the course. This in turn means we can focus more energy on other areas where change is also needed. Including other types of diversity.

                                                                                                               

Lise Alm
Head of Business Development

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