Within a mediation there exists a time when brainstorming begins. It is at this time that we encourage the parties to “think out loud” and to say exactly what’s on their minds. The “brainstorming” stage occurs before the negotiations phase of the mediation process, and is essential to creating ownership and to empower parties with respect to the outcome of their case.

In this phase parties are encouraged to give ideas for resolution of their conflicts/disputes; and they are instructed to be creative and to share whatever thoughts they may have for resolution. This process takes place without restriction or limitation, and the parties must exhaust their list of possible remedies before the negotiation phase will commence.

Initially, the parties may be hesitant to engage in the exercise, but after applying a few mediation tactics to initiate their involvement, one side will typically suggest an idea for settlement based on some combination of the monetary figure in dispute, and some form of apology or admission from the other. In response, the second party will usually give a number significantly in the opposite direction of the first party’s and reject any idea of apologizing as premature, and any admission of guilt as unqualified bearing the circumstances.

This moment is key to breaking though the slowly solidifying positions the parties begin to lock into during this stage. One ill-advised tactic could immediately shut down the brainstorming exercise and leave the mediator at the verge of an impasse. It is at this point that the mediator’s conflict resolution prowess receives its first test and his/her’s negotiation strategy its first opportunity for implementation. This is where their skill as a neutral facilitator receives professional qualification and recognition . . . flash forward to now.

Now is the very moment that we the parties of a very serious debate on the traditional definition of diversity, and purpose of its subjectivity, begin to “think out loud”. We begin to brainstorm our ideas, notions and sometimes fact based and other times biased opinions on the issue. It is a large scaled multi-party mediation session with many great interests at stake. Of all parties, the most invested in the outcome may be women. Women in particular because of the combination of progress they have seen as a result of diversity initiatives over the last fifty (50) years in education and in the workplace, as well as the indisputable evidence of the need for more beneficiaries of diversity programs.

Prior to the civil rights era women were often regulated to being housewives and assistants. For those women that were able to break ground amongst their male counterparts in the most esteemed professions, they were often paid salaries well below that of the men they worked alongside. As the times were (1900’s – 1960’s), one would be most curious to wonder if this were so in part because most men were the primary “breadwinners” of the family. In most cases as the only source of income of the “traditional family”; wherein women kept the homes, reared the children and managed the income brought home by their husbands, the men bear the burden of being sole providers.

This traditionally known fact may have actually qualified the inequality in salary as fair and legitimate at the time due to the fact that men had greater financial responsibility than women. Tragically so, this could also be seen as a greater indictment of men uneasy with household income disparities amongst one another than about men’s complex with women in particular. It could be that the idea of dual income and additional wealth within one family made the other feel both financially and socially inferior. It is this simple competition amongst men that could be responsible for the amplification of sexism and harassment of women. Consequently, it is possible that they would then displace the blame on women for what they may have deemed to be unnecessary employment and blind ambitions that offered nothing but an advantage in wages to their neighbor whom they had no interest in seeing share a wealth of living that they themselves could not afford.

The ideas that a woman’s efficiencies belonged only “in the kitchen” and at home with the children could very well have been exaggerated by the eternal dispute of “oneupsmanship” amongst men, and could actually have more to do with the fact that women were the individuals responsible for the leverage one man gained over the other (with respect to wealth and status) and less do with them being women or inept from a professional standpoint. This is merely a thought and not a researched based or proven fact; however, it is a reasonable hypothesis given the times.

Flash forward to the civil rights era, and the seeds of women’s rights as they were embedded in the agenda to bring equality to people of color. Primarily, African Americans having been historically discriminated against, mistreated, under-represented, lynched, murdered, indentured and enslaved were the focal point of this agenda.

With landmark cases such as Plessey v Ferguson and Brown v Board of Education serving as spring boards for movements that would eventually pave the way toward the Civil Rights Act of 1964, the Voting Rights Act, Affirmative Action programs and the birth of the United States Equal Employment Opportunity Commission; the focal point of the struggle was not only on the inclusion of African Americans as citizens of the United States of America, but also the protection of the rights of African Americans as the country moved from segregation to integration.

After the assassinations of prominent civil rights leaders and the subsequent breakdown of the civil rights movement, the women’s rights movement began to take center stage with its agenda. Calculating successful demands leading to equal pay rights, protections against sex based discrimination including harassment; and inclusion in programs aimed at increasing college enrollment and job opportunities, women quickly began to increase their numbers in higher education and the workplace. Flash forward to now . . .

According to the National Center for Education Statistics, Digest of Education Statistics data shows that as of April of 2013 women now represent 57 percent of the college students throughout the U.S. As per a report on enrollment and degrees awarded in 2011-2012 conducted by the American Bar Association Section of Legal Education and Admissions to the bar, in 1964 women represented only 4.2% of students enrolled in law school. As of 2011 they represented about 46.8% percent of students enrolled in law school and at the top 50 schools ranked by U.S News & World Report they represent 42 percent of the leadership positions on Law Review and 29 percent as Editors in Chief.

In medicine, according to the Association of American Medical Colleges (AAMC) Enrollment Data for 2012 report, women represent 46.4 percent of first time enrolled medical students, a figure also significantly increased from the 6.1 percent that it was in 1964 according to AAMC Data Warehouse: Student section; Student Records System (SRS); Journal of Medical Education report.

In a closer examination of the U.S. workforce, according to the U.S Bureau of Labor Statistics Report from March 2013, numbers show that as of 2011 women represented 46.9 percent of Americans employed over the age of 16.

According to data from the U.S Census Bureau in 1967 their representation was roughly 28 percent. Reports also show that as of April 2013 women make up 51.4 percent of the management and professional and related occupations, they represent 33 percent of the professionals in the legal field; 19.9 percent of partners in the field; 15 percent of equity partners in the field; obtain 51 percent of judicial clerkships, 27 percent of federal and state judgeships, and make up one-third of the United States Supreme Court.

In a brief comparison numbers show a different growth trend amongst African Americans within the legal field. According to research conducted by the Equal Employment Opportunity Commission on Diversity in the legal profession, statistics show that in 1975 African Americans represented 2.3 percent of professionals in the legal field and by 2002 they only represented 4.4 percent of total professionals in the field.

This comparison of women that represented only 14.4 percent of the field’s professionals in 1975 and African Americans that represented 2.3 percent in 1975 is astounding because the growth rate experienced by women over the next 27 years dwarfs that of African Americans and Hispanics. Hispanics went from 1.8 percent representation in the field in 1982 to 3.1 percent in 2002. Women went from 14.4 percent representation up to 40 percent in 2002.

In fact the data also shows that between 1982 and 2002 there has been a trending disparity (close to 40 percent) between the number of African Americans that obtain law degrees and the number employed as professionals in legal services in large private firms and as lawyers in the general work force. In addition, according to a recent study conducted by Society of American Law Teachers (SALT) and the Lawyering in the Digital Age Clinic at the Columbia University School of Law,

“African-American and Mexican-American applicants are doing better than ever on the leading indicators used by law schools to determine admissibility: undergraduate grade point average and LSAT scores. During the same 15-year period, the size of law school classes and the total number of law schools have increased, resulting in nearly 3,000 more first-year matriculants. There were 176 ABA-accredited law schools in 1992, as of 2008, that number is 200 schools. The representation of both groups has actually trended downward since 1993. These groups account for a significantly smaller percentage of the 2008 entering class than the 1993 entering class.

Indeed, there was a 7.5% decrease in the proportion of African Americans in the 2008 class as compared with the 1993 class. There was a 11.7% decrease in the proportion of Mexican Americans in the 2008 class as compared with the proportion entering law school 15 years ago. Therefore, over the past 15 years, African American and Mexican American representation in law school has decreased. African Americans and Mexican Americans have captured none of the nearly 3,000 additional seats that became available. Even in real numbers, there are fewer African-American and Mexican-American matriculants in the 2008 class (4,060 combined) than existed in the Fall 1993 class (4,142 combined)”.

This research clearly underlines the continuing issue that people of color are facing in gaining entry into professional programs; and also highlights the fact that they are also losing ground in inclusion. After reviewing these statistics you can see the clear advancements that women have made over the last half century and when you compare these numbers to those of African Americans and Latinos since 1964, you may notice the significant disparity in progress of African Americans and Latinos.

This now leads us to the primary subject of this discussion, where do we go from here with the current results of diversity programming? Do women represent the status quo with respect to diversity fulfillment? Should women still be included as sufficient representatives of diversity measures? If the purpose of diversity programming is to address current inequalities or substantial deficiencies in the representation of historically underrepresented communities then the most important question we must ask is do women still qualify? Furthermore, does the continued inclusion of women in diversity programming create an adverse impact for other communities?

The questions that focus our attention on the progress that has been made in diversity and inclusion efforts can only lead us to a deeper more refined approach to its practice. From a strategic standpoint it forces us to be mindful of the ever growing concept of diversity as even more communities gain qualification under its umbrella.

However savvy it may seem to expand programming; as it stands with the addition of other non-ethnic groups, a workforce or educational setting could actually qualify as diverse although it is totally void of persons of color. In continuing along the current path of expansion without examination and evaluation, there exist greater risks of further isolation, than a reward of inclusion. Consequently, there is a lost voice in the conversation about diversity programs and some may even argue that there are winners and losers.

Brainstorming as a process requires a combination of hypothetical insight and conceivable suggestion. As a neutral practitioner it is important that we utilize opportunities such as these to break through impasse and positional bargaining in order to greater understand our parties and their perspectives.

Throughout the process of brainstorming it is important that we ask open ended questions that allow the swell of blood flow into the brain and spark the movement of ideas. We should also use research as a powerful key to unlock the underlying causes of various issues and use that information as a guide post throughout the process. On the issue of diversity and the continued inclusion of women as sufficient benefactors of diversity initiative we must take in to account both the historical aspect of their inclusion alongside the impact of their exclusion; however we should not preclude the evidence that currently exist before our eyes.

“The only thing that interferes with my learning is my education.” Albert Einstein.

Sources

AAMC Data Warehouse: Student section; Student Records System(SRS); Journal of Medical Education.

Beckman, Christine M., and Damon J. Phillips. “Inter-organizational Determinants of Promotion: Client Leadership and the Promotion of Women Attorneys”, unpublished manuscript, 2003.

Coleman A, Palmer S, Winnick S et al., Roadmap to Diversity: Key Legal and Educational Policy Foundations to Medical Schools, AAMC, Washington, DC, 2008.

Castillo-Page L. Diversity in Medical Education: Facts and Figures, 2012. AAMC,

Washington, DC, 2012.

Nivet MA. Diversity Policy and Programs. AAMC, Washington, DC, 2012.             

Steinecke A, Beaudreau J, Bletzinger R et al; Race neutral admission approaches:            Challenges and opportunities for medical schools. Academic Medicine 2007;92(9): 117-126.

Women in Federal and State-level Judgeships (Center for Women in Government and Civil Society at the State University of New York at Albany) – Spring, 2010 (report) (PDF).

Women on Law Review: A Gender Diversity Report (Ms. JD) – August 23, 2010 (report).

“DIVERSITY IN LAW FIRMS” Equal Employment Opportunity Commission www.eeoc.gov/…/reports/diversitylaw/lawfirms.pdf

“A DISTURBING TREND IN LAW SCHOOL DIVERSITY” Society of American Law Teachers (SALT) and the Lawyering in the Digital Age Clinic at the Columbia University School of Law.

http://www2.law.columbia.edu/civilrights/

http://www.bls.gov/spotlight/2011/women/pdf/women_bls_spotlight.pdf

http://www.bls.gov/bls/cpswomendata.htm

http://www.bls.gov/cps/demographics.htm#women

http://www.census.gov/newsroom/pdf/women_workforce_slides.pdf