Diversity Questionnaire – June 2022

Monday 27 June 2022

Marcel Tan Marquardt
Senior Legal Counsel
Laing O’Rourke

1. What is your name and current job, role or title?

My name is Marcel Tan Marquardt and I am Senior Legal Counsel at Laing O’Rourke with a focus on infrastructure, sustainability, and research and development. I am also a Co-Chair of the LGBT Committee.

2. When starting out in your career, did you have any role models?

My two key role models at the beginning of my career were Sandra Steele and Nicole Green.

Sandra Steele was the first partner I worked for as a newly qualified lawyer. She had just moved from an in-house role at Lendlease to head up the construction team at K&L Gates and was, at the same time, having her third child. Working for Sandra instilled in me right from the beginning of my career that there were different paths to partnership. Further, watching her very successfully manage being a new mum and being a new partner was very inspiring.

Nicole Green was head of the Sydney office for MinterEllison and someone I worked closely with as a junior lawyer. Nicole is the most efficient and effective lawyer I have ever met. Growing up with a Chinese mother and a German father, efficiency and being meticulous are very much part of who I am as a person. Learning from someone who had perfected the process influenced how I wanted to be as a lawyer. Nicole also has such warmth and respect for people that it really dispelled the part of me that believed that you had to be arrogant and intimidating to become a senior partner.

3. What advice have you received which helped you progress in your career?                

I can’t think of any advice that has helped my career. I’m sure that I have received some, but for me it is all about what people do, not what people say. I learn by observing and absorbing. Being an out gay lawyer, I had never met another out gay lawyer until five years into my career at Addleshaw Goddard. Observing the way Marnix Elesnaar, Head of Planning, interacted with his team and the business was really important to me in finding my voice as a gay lawyer. I had also never met an Asian partner until I met Leona Ahmed, and this relationship was very important to me for growing into my role as a senior Asian lawyer in London. Leona and Marnix continue to be my mentors.

4. Do you think that diversity is improving in your particular professional area?

I believe that diversity is definitely getting more airtime and that firms are now being forced to confront the under-representation of different groups of people in the industry. But I’m still unsure whether any of this translates to improvements in diversity. I will remain unsure until I see proper representation across the board in organisations (particularly at board level). Seeing a woman of colour (Hayaatun Sillem, chief executive of the Royal Academy of Engineering) being appointed to the board of Laing O’Rourke gives me a lot of hope that things are changing in some industries.   

5. What positive steps have you seen organisations take to progress diversity and inclusion?

The most positive steps that I have seen involve investment into and accountability for diversity and inclusion. It is not just about thinking about inherent biases, ensuring that promotions and recruitment are more equal, and hoping that you can attract diverse talent. Rather, it is about investing heavily in the areas of diversity and inclusion so that you change the way the company works to allow more diverse talent to thrive, and keeping the organisation accountable.

At Laing O’Rourke the company set a 50:50 gender target by 2033. In the construction industry, if all things were to stay the same (including current male/female ratio of graduates), this target would be impossible to achieve. But Laing O’Rourke is investing heavily in research and development. It is seeking to convert jobs that previously involved trades (heavy physical labour) to jobs that can be undertaken by technicians (no physical labour) to allow anyone to be part of the industry. To ensure accountability, Laing O’Rourke has tied its finance to achieving these goals and therefore is also financially incentivised. This is a tangible and measurable way to increase diversity.

6. What aspects do you think are still ripe for improvement in organisations?

I believe that there are two key areas for an organisation if they are serious about diversity and inclusion:

1. Representation matters. An organisation can have a diversity and inclusion policy and represent itself as being a diverse workplace. However, when you start digging, if you see that the board are all from one group of people, or see diverse people getting stuck at certain levels (hitting the glass ceiling), I struggle to believe that it are serious about diversity and inclusion but is rather paying lip service. Representation sends a signal that the organisation understands how important representation is to minority groups, and that the minority groups can actually be an integral part of an organisation.

2. Words are cheap. Social media posts, interviews, goals and targets are not worth a thing unless they are supported with:

• Sacrifice – unfortunately you may have to lose your seat at the table to allow someone else’s voice to be heard, or you may increase the size of your table so that your voice is diluted;

• Investment – understanding that the way the system is currently set up predominantly benefits only one group of people, so creating a more equal society and one that actually harnesses the best from each individual and unique person involves investment into changing the one-way system to a multidimensional system;

• Courage – to see beyond your immediate income, power or status and realise what is best for the organisation and society is to potentially give up some of that income, power or status; and

• Empathy – to listen and believe someone’s journey without undermining it because it does not align with your own journey or the narrative you understand.

7. What are the indicators of when a reasonable diversity balance is reached?

I believe when we have a system that allows every unique person to thrive (ie, a level playing field, not one that is so heavily weighted against some groups and in favour of others), only then will a reasonable diversity balance be reached. Until that point, it will continue to be a fight between those trying to succeed in a system that is programmed to ensure that they potentially fail, and those in charge of – and who created – the system that allows them to succeed with no impetus to change the system because it may mean that there is a risk that they will fail.

8. What do diversity and inclusion mean to you and why are they important?

Growing up in Australia as a gay man with immigrant parents from Germany and Christmas Island/Singapore, diversity and inclusion is just part of who I am. Being gay and mixed race I had no role models who looked like me (I was too white to be Asian and too Asian to be white), sounded like me, had any shared experiences or were visible in the life or career that I wanted. That is why, at every stage of my career and in my personal life, I have tried to be visible and I have tried to change things for people coming up in our industry. My niece and nephew are German, Chinese and Indian so I’m hoping that the world they grow up in is more accepting than the one in which I did.

I truly believe in the value of diversity and the power of inclusion. Different cultures, experiences, sexualities or cognitive abilities really colour our world; to continue to view the world in black and white is missing out on all the beauty and promise in the world. Empowering people to be the best unique versions of themselves, not the best version of what they can be within constraints, opens up possibilities beyond what we could imagine.

When I started my career as a lawyer, as a man I made sure that I always worked for a female boss as that was a way I could support diversity with my actions and not just my words. Throughout my 10-year career I have worked for some really inspiring women including: Sandra Steele, Head of Construction at K&L Gates; Nicole Green, Head of the Sydney office at Minter Ellison; Julia Court, Head of Construction at KWM/Addleshaw Goddard; and now Madeleina Loughry-Grant, Director of Legal and Tax at Laing O’Rourke. It is so important to me to live by my values as there is no way for me to avoid being diverse.

9. What impact has the Covid-19 pandemic had on diversity in your professional area?

This view may be controversial, but I believe by fast-tracking a work-from-home culture Covid-19 may have decreased diversity in the short term – but may increase diversity in the long term as people are able to be more flexible with their working hours and locations. The ‘9–5 in the office’ system was set up for a particular group at a particular time: the world has changed so drastically and so quickly that the old systems no longer serve society in the way to get the best out of society. So by an external force like Covid-19 changing the system to allow more diverse people to enter or stay in the industry, I believe it may increase diversity within the legal industry.

Iryna Akulenka
Associate Director
HKA Dubai

1. What is your name and current job, role or title?

My name is Iryna Akulenka. I am an associate director with HKA Dubai, dealing with a mix of contractual claims and expert witness work. I am a Fellow of the Chartered Institute of Arbitrators (CIArb), Immediate past Chair of the CIArb UAE Branch and accept appointments as an arbitrator.

2. When starting out in your career, did you have any role models?

I started my career in construction project management some 15 years ago. My first role models were, as you would expect, men. I pretty much learned ‘on the job’, and the guidance I received on a daily basis was absolute gold!

When I decided to make a complete career shift from project management to construction claims and disputes, it was like starting from scratch. I was (and still am) fortunate to be surrounded by many highly intelligent women and men – perhaps too many to mention!

Since 2015, I became involved with the UAE Branch of the CIArb, and for some six years I have been working under the leadership of the past Chair, Leonora Riesenburg, a highly experienced arbitrator and mediator. I took over from Leonora in March 2021. She was, and still is, a role model in many ways. I am extremely grateful for all the encouragement and the invaluable experience I received while working with her.

3. What advice have you received which helped you progress in your career?

• One: never stop learning. I still learn every day! The pace of change we are witnessing today is extraordinary, particularly in the area of dispute resolution. One must remain continuously up-to-date with the developments in international legislation and recent case law, as well as best practices (guidelines and ‘soft’ law).

• be proactive, chase and create opportunities. Take on tasks that make you uncomfortable – this is how you learn and develop.

• do not take every opportunity there is – be selective. Take only calculated risks – otherwise this will inevitably lead to burnout.

I often share this last piece of advice with the younger generation of alternative dispute resolution (ADR) practitioners, particularly women. When asked if women can ‘have it all’, I always say that every one of us defines what is ‘all’, and that definition also changes with time as our priorities change. Therefore, be wise with the opportunities you take on.

4. Do you think that diversity is improving in your particular professional area?

Yes and no. Forgive me for giving a lawyer-like answer, but it really depends. Diversity is multifaceted so it really depends what aspect of diversity is being looked at. There are other factors to consider as well:

• As an example, if I speak about gender diversity in engineering and construction, we still have a very, very long way to go. Personally, I do not believe we can ever achieve true gender parity in construction, simply because in absolute numbers the majority of contractors’ site personnel will always remain men. It is just the nature of construction work. However, there are great strides being made in consultancy and ancillary services.

• Generally speaking, progress is not the same across the board – with some companies and organisations making (somewhat) better progress than others. This applies to any and all players in the ADR world – be it law firms, expert firms, arbitral institutions or users of ADR.

• Taking the international ADR community as an example, the progress is not the same across different areas of diversity. There appears to be an improvement in gender diversity, generally speaking. However, when you look deeper into the data for arbitral appointments of female arbitrators, for instance, you will find that better progress is made in institutional appointments, with lesser progress in party appointments. I would say this equally applies to both arbitral as well as expert appointments.

A lot more needs to be done in terms of the advancement of appointing technical arbitrators as opposed to arbitrators only from a legal background. Internationally, a very wide pool of highly qualified technical arbitrators is available for appointments in suitable cases (whether construction/ engineering, oil and gas, energy, infrastructure, technology and many others). However, there is still a prevalence to appoint neutrals from a legal background.

Diversity in race and nationality requires a lot more work. Even when you look at the data for appointments of female arbitrators worldwide – how many of them are women of colour? Women from Asia? Eastern Europe? etc...

Diversity in age is another extremely problematic and often overlooked area. How many arbitrators of the age bracket of, say, 40–45 are appointed in any sizable cases? Let alone actual appointments – how many are given the opportunity to act as arbitral secretaries or at least shadow? This area requires immediate and very careful attention as the ADR community must come together and prepare the next generation of neutrals. The change of generations is part of life and the ADR world is no exception. The question is: are we collectively ready? Nowadays, we speak a lot about the climate change-related disputes and the need to be prepared as the global ADR community. However, I am not too sure we are sufficiently preparing the next generation of neutrals who are going to be the ones dealing with these disputes, particularly the technical arbitrators. I must say, given the very ambitious goals in the race to ‘net zero’, the time is now, and we no longer have the opportunity to waste any.

Last but not least, socio-economic diversity is an oft-spoken-about topic recently, but very little is being done on this, practically speaking. Put simply, access to opportunities is not nearly the same for someone born in a major metropolitan city in Europe or North America versus someone born in a tiny village in Africa or Latin America.

We all must actively engage with young folks from under-represented, disadvantaged and less privileged groups. Equal access to formal education across the globe is one of the major social concerns and is a topic on its own.

5. What positive steps have you seen organisations take to progress diversity and inclusion?

There is much we can all do (and some already do) but first and foremost, we must practice what we preach. This is a starting point of any progress in any area, and equality, diversity and inclusion (ED&I) is no exception. Tick-box and marketing slogans are no good to anyone – inclusiveness starts from within.

From the employment/ workforce standpoint generally, it is now evident that nothing happens without leadership buy-in – a top-down approach is a must. This applies not only to organisations but also to countries as a whole – true progress is only seen where the legislation is supportive to that effect.

Targets and key performance indicators (KPIs) must be set. When I used to speak about these some ten years ago, this approach was labelled as some sort of a ‘positive discrimination’. Look at us today: the majority of organisations and countries that truly work on improving diversity all have set targets against which the progress is measured.

‘Soft’ measures alone (such as mentoring) never work – sponsorship and active support of underrepresented groups (not just women) is a must.

Official policies and criteria on ED&I must be set and followed, and leadership held accountable. In the Chartered Institute of Arbitrators, for instance, we have official diversity and inclusion (D&I) policies in place.

Improvements in recruitment and retention policies – and measurement against set targets – are very powerful (gender/race/nationality/age neutral job ads, ‘blind’ CVs, improved maternity/ paternity policies, clear application of criteria for promotion/official feedback on the job across the board, etc).

An inclusive culture, where everyone is heard and respected, is one of the best steps I have seen. This really works. Implementation of anonymous surveys also works, and will give organisations an understanding on whether or not all their people feel equally included.

Investigations as to pay gap are very impactful – not just with regards to gender, but across the board.

ED&I committees really work – we have regional committees at HKA and are witnessing a great progress on many initiatives we report on.

When it comes to arbitral appointments, particularly party appointments, I cannot stress enough how important the role of counsel is. In terms of practical solutions, they are well known to the users of arbitration. But to create a real impact, I strongly encourage the audience to take collective action. For instance, when proposing arbitrators to clients, counsel should propose a diverse list containing 50 per cent female arbitrators. There are plenty to choose from! Needless to say, the list should include arbitrators from diverse backgrounds (not just gender, but also race, age, legal versus technical, nationality, socio-economic aspect, etc).

6. What aspects do you think are still ripe for improvement in organisations?

As mentioned in my answer to Q4 above, there is much to be done to address many oft overlooked aspects of diversity, be it age, educational background, race, gender, socio-economic background, etc.

On 11 November 2021, Wendy Miles QC FCIArb delivered CIArb’s Alexander Lecture live from COP26. I encourage everyone to read or listen to her outstanding speech – it is very thought-provoking. Of particular relevance to D&I, Wendy raises – rightly so – how representative the tribunals and the counsel teams are in relation to the disputes they are deciding and to the parties they are representing, particularly with reference to race, gender and nationality. We like to think that, as a global ADR community, we have improved in the last couple of decades. However, there is so much we still need to do to be truly representative and inclusive.

I would also urge the readers to have a look at the McKinsey 2021 ‘Women in the Workplace’ report, which highlights many challenges women are still facing. These challenges are even more pronounced for women of colour and women from other underrepresented groups.

7. What are the indicators of when a reasonable diversity balance is reached?

This is a difficult question if one really wants to get into the substance of the matter.

For example, as I mentioned above – is it reasonable to expect that the site workforce in the contracting business will ever be 50 per cent female? I gather not.

Can we ever reach parity in female arbitral appointments for women of colour?

Will we ever see every tribunal (subject of the dispute permitting) having at least one technical arbitrator (let alone reaching parity)?

Can we expect to see arbitrators under 45–50 appointed on claims exceeding, say, US$5m?

Will we see parity in arbitral appointments of under-represented groups in claims above US$50m?

There is still so much to do. The truth is, apart from gender (moreso, mainly just institutional appointments anyway) very little on other aspects of diversity is being measured or actively pursued, if at all.

I can talk about this for hours, but I guess the bottom line is that reasonable diversity is only reached when we no longer need to talk or write about it, or have specific measures, targets and initiatives implemented, whether organisation-wise or by legislation.

8. What do diversity and inclusion mean to you and why are they important?

To me, it is equality first and foremost. As human beings, we all deserve equal treatment and access to opportunities based on merit.

Being truly inclusive simply means respecting and valuing everyone around you, and it is just the right thing to do.

9. What impact has the Covid-19 pandemic had on diversity in your professional area?

Again, this issue is a little complex if one really wants to go to the substance instead of giving a general answer. I suppose it is generally understood that there has been a negative impact on the caretakers as they had to juggle working from home with kids being home-schooled, caring for the elderly, managing house chores, etc. It has been a very difficult time for many, and I have experienced this myself.

On the positive side, many organisations (including HKA and CIArb) have introduced flexible working or working from home. The two terms are often used interchangeably but may not necessarily mean the same thing. Either way, I am aware that many organisations in the ADR world (such as law firms and expert firms) are still allowing the flexibility of working from home, at least to some extent.

I have to say that, as a full-time working mother of two young children, I really appreciated the opportunity to manage my workload more in line with my family life, which allowed me to spend more quality time with my girls.