INTRODUCTION
In March 2022, the OBA Working Group on Neutral Diversity published its report which highlighted the fact that arbitrators and mediators (“Neutrals”) do not generally reflect the gender or racial diversity of the demographics in the province. The report included the results of a survey of OBA members and other background information which supported the report’s conclusions on the need for improvement.
Although there has been an increase in the diversity of members of the legal profession in Ontario, the OBA survey identified that there is a lack of diversity in the hiring of mediators and arbitrators. The survey was conducted between April and July 2021 and is a useful snapshot in time that identifies these concerns. For example, different trends emerged when the survey responses were considered by practice area for both mediators and arbitrators:
“Commercial litigators hired male mediators 80% of the time, and white mediators 98% of the time in the last two years, based on the survey results from 35 commercial litigator respondents.
Employment lawyers hired male mediators 50% of the time, and white mediators 91.5% of the time in the last two years, based on the survey results from 18 employment lawyer respondents….
Commercial litigator respondents hired male arbitrators 82.6% of the time and white arbitrators 100% of the time in the last two years, based on the responses of 35 respondents practicing in that area.
Employment lawyer respondents hired male arbitrators 66% of the time, and white arbitrators 96% of the time in the last two years, based on the responses of 18 respondents practicing in that area.”
The link to the OBA Report on Neutral Diversity is here.
One of the issues noted in the report was the lack of familiarity with diverse Neutrals. The report contained recommendations including that lawyers and law firms request or present diverse names when seeking or making recommendations for Neutrals, that lawyers and law firms set goals to increase the retention of diverse Neutrals and also help to promote diverse Neutrals to colleagues.
As members of the OBA ADR Executive we wanted to continue the work of improving Neutral diversity in Ontario. As part of that we will be using the OBA-ADR newsletter to profile select diverse Neutrals so that OBA members and others gain greater familiarity with these diverse ADR practitioners.
AFSANA GIBSON-CHOWDHURY
We have chosen Afsana as our first diverse Neutral to profile. Afsana is an experienced Neutral who has been actively involved in improving Neutral Diversity in Ontario through her work on the OBA-ADR Executive; as the co-chair of the OBA working group on Neutral Diversity; and her own ADR practice and other contributions.
Afsana provides dispute resolution services in a number of areas, however, her main area of focus is human rights discrimination within the workplace. Afsana is a frequent speaker on ADR issues and was the recipient of the ADR Institute of Ontario, Star Awards, 2021. She has developed seminars and courses based on Equity, Diversity and Inclusion (EDI) for lawyers, mediators and cross-sector professionals. Afsana’s website is found here: www.gcmediation.com.
INTERVIEW WITH AFSANA GIBSON-CHOWDHURY
Q- CAN YOU EXPAND ON THE TYPE OF ADR WORK THAT YOU DO?
I have dedicated myself to building a human rights practice. My focus primarily revolves around collaborating with employment lawyers and large corporate entities grappling with workplace disputes, particularly those related to race discrimination. To facilitate constructive dialogue and foster understanding among parties embroiled in conflict, I've developed various tools aimed at broadening perspectives and promoting educational engagement.
Q - WHAT SKILLS DO YOU BRING TO YOUR ROLE AS A NEUTRAL?
I am a good and intuitive listener. I approach conflicts with authenticity. In Human Rights mediation, the process isn't always linear; at times, it simply involves facilitating meaningful conversations between parties not knowing if there will be a resolution. The issues are usually highly sensitive and requires careful management and trauma informed approaches.
I have the ability to guide parties in discerning the most beneficial process for resolving their disputes and support them through it. Flexibility is crucial in my work, and to embody this, I maintain a broad perspective and a deep understanding of cultural nuances. Throughout my practice and in each mediation, I skillfully expand my understanding of the cultural and religious backgrounds of the parties involved, while ensuring they feel respected and secure within the environment I foster.
I also have to be very creative and collaborative in building sustainable relationships between the parties. This may involve training, one-to-one coaching or written resolutions that require monitoring over time.
Q - HOW DOES YOUR DIVERSE BACKGROUND AND EDI EXPERIENCE BENEFIT THE ADR WORK THAT YOU DO?
My diverse background and experience in Equity, Diversity, and Inclusion (EDI) significantly enhance the work I undertake in several ways. Because of my intersectionality, I possess a comprehensive understanding of various cultural issues and perspectives. This means that I am able to have a relevant and meaningful dialogue with the parties. This has been further developed through the training I've both received and delivered, as well as through the courses I've authored and the tools I've created. These resources enable me to effectively engage clients on matters of discrimination and facilitate constructive dialogue.
Q - DO YOU HAVE EXAMPLES OF HOW EDI TRAINING HAS BEEN HELPFUL IN YOUR ADR WORK?
In my experience handling civil disputes, particularly employment cases, lawyers frequently view mediation settlements as contingent on discussions surrounding the financial aspects of the cases. However, in my practice, I've consistently identified Equity, Diversity, and Inclusion issues that may have led to the overarching employment conflict. EDI training and my personal lived experience has equipped me with a deeper understanding of cultural nuances and sensitivities. This awareness enables me to navigate diverse perspectives and foster an inclusive environment during mediation sessions, promoting effective communication and understanding among parties from different backgrounds.
Q - WHO DO YOU RECOMMEND WE PROFILE NEXT?
The co-chair of the Neutral Diversity in Ontario report, Jennifer Egsgard.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.