‘Priming’ the legal brain for effective diversity & inclusion strategies

In the modern economy, firms and in-house legal departments around the globe understand that adapting to rapid change is the new normal. Organizations that thrive appreciate that change must be managed for them to grow.

Nonetheless, positive organizational change remains difficult, and many organizations aren’t able to manage that change as effectively as they would like to.

According to the dean of Harvard Business School, the brutal reality is that approximately 70 per cent of all change initiatives fail. When you add to that the layers of transformation required when an organization engages in diversity and inclusion change initiatives, that failure rate climbs.

In building a “best-practices” regime, over the last 15-plus years, I have had the opportunity to have transparent strategy sessions with people and organizations around the globe about which long-term D&I initiatives work and which do not. A common theme from associates, partners, in-house, and general counsel is that there is a lack of consensus that the legal profession even has a significant issue to deal with concerning D&I.

Undoubtedly, they are generally good-hearted people. Most of them take a genuine interest in playing meaningful roles in our profession. They are active in their local law associations, the Canadian Bar Association, or their law societies. The problem is certainly not apathy for the well-being of the profession or their own firms or practices.

Contrary to the statistics and studies relating to the disproportionately low number of women in senior partner positions or racialized lawyers accessing positions in firms, for example, white male lawyers may reason that barriers for marginalized groups to ascend the partnership/organizational ladder have generally been dealt with.

To summarize the sentiment, as one managing partner in a large regional firm pointed out: “A lack of equality among lawyers is no longer a credible position. More women are graduating from law schools than men. If people are not getting the jobs they want they are either making the wrong choices, are not capable, or aren’t doing the things that must be done.”

The irony was that this partner had taken diversity training of some sort in 2009. He had sat through a two-hour workshop at the firm’s retreat and understood the material. With the best of intentions, he had done all he could or should do. From his perspective, he was “on the ball.”

For him, the workshop acted like a measles inoculation. Take it once and you are good for life.

Even when people rationally understand the “business case” and immense value proposition presented by an inclusive workplace and diverse service delivery, covert and often high levels of resistance often remain.

Before D&I change initiatives can even begin moving forward, the internal personal “starting gate” may be closed. This regresses into the notion that an inclusive workplace culture is “a nice thing to have” but is “more of a luxury” and not essential to the operational needs of the organization/firm.

Pedagogical science shows us that most people approach D&I initiatives with good intentions. Malice is not at the heart of failing D&I training; disinterest, a perceived lack of relevance, failing to include staff in the buildup, and an adversarial tone of the training often are the culprits. As a result, well-intentioned and good people often resist D&I programming and its goals.

The sometimes lacklustre, long-term outcomes of traditional D&I programs are due in part to strong, often subconscious, internal psychological, neurological, cultural, and socialized cognitive barriers to “difference” and change. These complex hurdles are built up over decades from our earliest years. We all have them. However, we can be taught to mitigate them.

In addition to the popular concepts of implicit bias, confirmation bias, and motivated reasoning, we have learned a lot about the neuroscience and the psychology of learning and behaviour modification over the last 30 years.

The research is clear. Our brains are wired in ways such that a variety of drivers guide us to resist change where the change may be viewed, on some level, as a threat or, at the least, as uncomfortable. Decisions about these perceptions mostly occur subconsciously and faster than the blink of an eye. They happen in nanoseconds.

Traditional D&I programs may not adequately “prime” participants to understand the natural neurological and socialized tendencies to resist D&I before an initiative is thrust upon them. It is not simply a matter of laying out inequities that exist.

Priming involves offering people the tools to appreciate their own internalized barriers, how these barriers manifest themselves, and effective strategies to mitigate and expunge misplaced and often subconscious perceptions and biases.

Without the counter-weight of a pragmatic understanding as to why and how individuals and organizations resist “difference” and threat, D&I programming frequently results in little more than a check off under the heading of “corporate governance.”

Through no fault of their own, support staff, associates, and partners are unprepared to embrace the frequently novel and counterintuitive concepts of D&I initiatives. The machinery of a D&I program (e.g., minority staffing audits, hiring, promotion, and retention goals for marginalized groups, etc.) is then rolled out with much fanfare to a workplace that may view it as overly invasive and unnecessary. The proverbial cart is placed before the horse.

Before organizations begin to engage the mechanics or the “how-to” of D&I, priming individuals begins to collectively transform the culture of the workplace for positive, long-lasting change. It engages people in a way that allows them to intuitively understand D&I as part of their personal and organizational “DNA.”

Over time, a D&I lens becomes an instinctive response and the workplace culture can grow from being unconsciously bias to be unconsciously proficient at D&I.

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