Many observers and academics are aghast at the
state of the profession of workplace neutrals. There
are several criticisms.
First, there is a significant lack of diversity
in the profession. Even when well-meaning
organizations help women and minorities
develop their process skills, these candidates have difficulty getting selected for
cases. If these emerging neutrals do not
gain traction within three years, momentum
is lost and they often give up.
Second, law schools and universities are
graduating young (and skilled) neutrals,
but with no insight on building a viable
practice. Their career starts and ends at
Third, 80% of the paid labor and employ-
ment cases are referred to 20% of the
neutrals available to resolve those cases.
This percentage is not changing over time.
The emerging neutrals still go hungry.
Fourth, there is no ethical focus on the
obligation of the successful neutrals to
develop the next generation. ADR providers rightfully preach diversity, but as a
one-way road (there is no obligation for the
successful neutral to give back to the field).
Finally, as law firm partners increasingly
serve as ad hoc neutrals in employment
disputes, they appear to have become decreasingly interested in encouraging competition which may reduce their income.
I believe the answer is more and better mentoring of
the next generation of neutrals.
Mentorship is a relationship in which a more experienced or knowledgeable person (the mentor)
supports or guides a less experienced or less knowledgeable person (the mentee). The mentor typically
has more years of success, and an established area of
expertise. The relationship can be formal or informal.
Since the 1970s, the American business community has embraced mentoring as an integrated part
of individual and leadership development, along with
coaching, feedback, and formal classroom training.
Historically, there are two levels of mentoring in dispute resolution. The first focuses on building process
skills. For example, process skills involving mediation include reflective techniques, creating standards,
option-generation, winnowing options, ethical application, and drafting the agreement. The second focus
of mentoring concerns “building a viable practice,”
which can involve market analysis, competitive profiling, setting fees, joining rosters, networking, projecting
cash flow, corporate structure, and building a solid
Mentoring can occur at different stages of a neutral’s
career. Some mentoring can be shared with “
promising volunteer neutrals” who are evaluating whether to
change careers and enter ADR as a full-time endeavor.
After understanding the start-up obstacles, most of
these people choose to remain part-time volunteers.
The second stage concerns “emerging neutrals” in
the first five years of their practice, helping them build
their brand, refine their process skills, and get paid.
This mentoring relationship can be the most rewarding, as changes are embraced in real time. The third
stage concerns those “established neutrals” with over
five years of experience who have become financially
successful, but are still seeking a collegial source of
occasional advice and guidance.
In a 2012 article in the New York State Bar Asso-
ciation Journal, Sasha A. Carbone and Jeffrey T. Zaino
outlined a useful approach to mentoring:
When working with a mentor, it is useful to
establish from the start goals and guide-
lines for how the relationship will work. Is the
purpose of the mentorship to gain contacts,
shadow the mentor in arbitration hearings,
obtain advice or a combination of these
goals. A new arbitrator should consider how
Ethical guidelines in dispute resolution
state that successful neutrals are
obligated to advance the profession,
often by mentoring novice neutrals.
Mentoring of Neutrals in Dispute
Resolution: Looking into the Mirror
About the Author
is a full-time mediator and arbitrator of
labor and employment disputes. He is
an Instructor at the
on Conflict Resolution at Cornell University and teaches
the “Building Your
Career as a Neutral”
seminar. He served
on the ACR Board
of Directors, and as
Co-chair of the ACR
In 2015, he taught
arbitration in Vietnam as a Fulbright
Scholar in Labor
Law and Dispute
Richard D. Fincher