Authors: Xiaoyu Huang*
| Jurisdictions: United States |
Topics: Diversity |
Since 2019, the American Arbitration Association (AAA) has brought together law students, litigators, arbitrators, and ADR professionals from around the country to introduce ADR to students; to help law students obtain an in-depth understanding on this slice of the profession; and to create a lasting network of diverse current and future ADR practitioners. Over the weekend of November 12-13, ARIA participated this third annual rendition of the Summit in AAA’s midtown office. It was evident from the enthusiasm of the attendees and the dynamism of the guest speakers that there is a healthy appetite for diversifying the profession—both from institutional perspectives and on the part of individual practitioners—and that law students are well poised to make a lasting impact on diversity within ADR and beyond.
The Summit convened on the morning of Saturday, Nov. 12, with an introduction by Ingeuneal C. Gray, Commercial Vice President of the AAA, and Anne Lesser, Vice President, Labor, Employment and Elections and leader of AAA’s New York Regional Office. Mses. Gray and Lesser, who both co-chair AAA’s Diversity & Inclusion Committee, emphasized the institution’s demonstrated commitment to diversify a traditionally monoethnic, male legal field, as evidenced by the fact that 29% of active AAA arbitrators and 39% of tribunal panelists are diverse. The AAA has further committed to continuing to push diversity numbers toward parity and to maintain a roster of outside speakers that is at least 50% diverse.
During the icebreaker introductions, participants met and conversed with fellow law students from around the country, hailing from a diverse array of former professions and/or areas of expertise. Jamonica Warren, a New York native who studied French horn performance and political science at SUNY, attends Texas A&M School of Law. Bamisope Adeyanju, a Nigeria-qualified lawyer, obtained her LL.M. from Columbia Law School and is working toward an accelerated J.D. at Buffalo Law. Catherine Lynch, a Philadelphia native and future Delaware Superior Court clerk, attends Drexel Law and is focused on First Amendment litigation. Asia Skyers, a Connecticut native primarily interested in criminal litigation, attends North Central Caroline School of Law. Constanza Mayz, a Venezuelan American with primarily interests in commercial and investor-State arbitration, is working toward her J.D. at Alabama Law. Damilola Adebayo, a Nigerian native, attends Howard Law with a focus on taxation. Jessica Gardner, from Baltimore, attends Maryland Law with an eye toward working in-house. Joshua Cavazos, a 3L at St. Mary’s Law, focuses on international ADR. Luis Heras, a 2L at CUNY and New York native, hopes to build his career in the city as an employment and commercial litigator. Fellow New Yorker Sanzida Talukder, also a CUNY Law student, specializes in financial services and hopes to contribute to investing in communities. Marco A. Graniel, a former teacher who remains a multilingual education program specialist, combines his expertise in education and law as a student at Houston Law. His colleague Nicholl Paulerio, of the same law school, enjoyed a successful prior career in oil and gas. Their classmates Victoria Mourenza and Annanya Chaturvedi, from Argentina and Texas respectively, focus on international humanitarian law as well as all aspects of civil litigation. Morenike Erinkitola, a Chicago native who attends Loyola Law, hopes to become an international commercial arbitrator. Olivia Fortunato, a professional harpist, attends Cardozo Law and focuses on entertainment law. Tony Reed, former human resources professional, attends Nebraska Law with a focus on employment, compliance, and institutional equity. Sylvia Elena Davila Arsuaga, from Mexico, is working toward a degree at Facultad Libre de Derecho de Monterrey. With the conspicuous, but fully unintentional omission of California and transactional work, the Summit encapsulated an overwhelming majority of U.S. legal markets, law school locations, and areas of future practice.
Mses. Gray and Lesser’s introduction was followed by a presentation entitled “Dispute Resolution Continuum Overview,” led by Harold Coleman, Jr. Mr. Coleman, a dynamic lawyer, arbitrator, mediator, and teacher, serves as senior vice president of mediation with the AAA and executive director for AAAMediation.org, has also served the Southern California community with distinction as a peacemaker and provider of pro bono leader services. His dedication to non-litigious dispute resolution mechanisms is evidenced by his early and frequent advocacy of collaborative dispute-resolution techniques, and his passion for service palpable through his passionate teaching style. The dispute resolution continuum, in Mr. Coleman’s telling, ranges from litigation, arbitration, and mock-trial techniques to what he coins “non-trial evaluative techniques,” which includes conciliation, mediation, assisted negotiation, and direct negotiation, all of which could optionally involve or not involve counsel. Among the “more collaborative” techniques, Mr. Coleman highlighted, among other procedures, direct facilitation, ombuds, dispute-resolution boards, partnering, and “med-arb” procedures. He also expounded on his view that more adversarial mechanisms increase transactional costs of time, money, risk, and emotion while decreasing control over the outcome, to the possible detriment of all litigants. On the other hand, ADR presents a “deeper form of [dispute resolution]” which focuses on relationships. With ever-rising billing rates and ever-lengthening civil case resolution times, it is difficult to assail the premise of Mr. Coleman’s approach and the attractiveness of ADR.
After a short interval, Mr. Coleman expounded on mediation and arbitration as dispute-resolution mechanisms over the course of two further morning sessions.
The first of three specialized panels, stylized “Perspectives from the Trenches,” focused on the role of in-house counsel and promised a “candid look . . . [at] what today’s . . . marketplace needs, values and expects from solution-focused and value-conferred ADR services.” The experienced panel featured Mindy Hatton, general counsel and secretary at the American Hospital Association; Brook Gardner, general counsel and senior vice president at Major League Soccer NEXT Pro; and Bill Crosby, Jr., associate general counsel and senior vice president at Interpublic Group, a New York-based advertising and marketing company with 50,000 employees worldwide. The group, discussing their journey from advocates or transactional counsel to in-house roles, stressed the importance of “getting one’s foot in the door” and capitalizing on affirmation and resources. Concentrating on a non-ADR field early in one’s career does not, however, close off the ADR door; rather skills “interpolate [and] translate into [one another],” and experiences in other fields “invigorate and energize” a lawyer’s eventual entry into or exit from ADR work. The discussion (like all discussions to come) contained a mix of career advice and reflections on the role of attorneys from a particular vantage point in the legal system. One speaker emphasized the importance of speaking slowly, passionately, and at a legible pace. Another noted that law students should step away from law school’s excessive focus on achievement; law students should, instead, “focus on people and their writing” while shedding an overly utilitarian skillset. Mr. Crosby, who transitioned geographies, legal markets, and practice areas more drastically than did his colleagues, agreed and additionally urged the audience to engage in “quality reflection.” Finally, all speakers agreed that “commercial sense” is direly needed in dispute resolution from the client’s angle: “What makes most sense for the client? Who will look out for the client in litigation or ADR, if you don’t?”
The second “Perspectives” panel, dedicated to advocates, focused on “what is important to [counsel] when selecting neutrals, [preparing cases], and . . . [processing] needs/expectations.” The featured panelists are Leslie Berkoff, a bankruptcy and creditors’ rights specialist at Moritt Hock & Hamroff LLP; Holly Weiss, an independent arbitrator who was formerly a partner at Schulte Roth & Zabel LLP; and Lea Haber Kuck, an independent arbitrator who was formerly a long-time partner at Skadden, Arps, Slate, Meagher and Flom LLP. The attorneys spoke of the “sometimes evaluative, other times facilitative” nature of ADR. One attorney encouraged pre-mediation work, including pre-mediation statements, to encourage efficiency and cost-effectiveness during the proceedings. Another emphasized that opposing counsel should conduct “one-on-one, serious conversations” before any arbitral hearings, potentially in order to do away with the need for long pleadings. After the panel, a networking session and dinner concluded the first day’s programming.
Day 2 of the Summit, Sunday, Nov. 13, began with the third “Perspectives” panel whose speakers elude easy categorization. Simply characterized as “ADR Professionals,” this distinguished group includes Dr. Prof. Kabir Duggal, a senior attorney at Arnold & Porter LLP, professor and lecturer at Columbia and Fordham law schools, and arbitrator; Theo K. Cheng, California-based independent arbitrator and former litigator at Paul, Weiss, Rifkind, Wharton & Garrison LLP and Proskauer Rose LLP; Linda Gerstel, independent arbitrator and mediator; and Elizabeth Shampnoi, employment arbitrator and mediator. (The AAA included articles, commentaries, and other rich materials on diversity, arbitrator appointment, arbitral trends, and other ADR topics, authored by Mr. Cheng, Prof. Duggal, and others which are fruitfully collected in a thick volume which each participant received.) Prof. Duggal stated that this generation of practitioners must help reverse the arbitration bar’s historic characteristic as “male, pale and stale.” Ms. Gerstel stressed the importance of finding a suitable mentor (“who does not have to be a diverse person”). Mr. Cheng explained that the key to success as a neutral is humility: “I am empowered by your [contractual] clause to run your process, but I must also listen to what you have to say.” He urged all participants to be “party-focused and process-driven.” As the boundaries among dispute resolution mechanisms become ever more unstable (all speakers agree that the world is moving away from traditionally clean divisions among arbitration, mediation, and litigation, but they did not converge on a stable vision of the next predominant dispute mechanism regime), the speakers agreed, there is no shortage of opportunity for law students interested in ADR to transition—over the course of a career—into a field which is bound to see increased demand in coming years.
To conclude the conference, the organizers conceived a final Q&A session, during which time students interacted directly with Mses. Ingeuneal and Gray and Messrs. Duggal and Coleman. It is during this session that the conference’s most heartfelt advice emerged. One speaker invoked Dale Carnegie’s exhortation that lawyers and students address each other by name and expect others to do the same: “If you expect more, you will get more.” Dr. Duggal, a former AAA Higginbotham Fellow, exhorted that participants should take advantage of existing leadership opportunities and “create an opportunity, if you don’t have it; when you don’t know who is in charge, take charge.” A prolific scholar, Dr. Duggal urged the participants to contribute to thought leadership and to find a leading author who may open the door to being published in a prestigious outlet such as the New York Law Journal. Mr. Coleman continued that scholarship “need not change the world; it need only change the thinking on a narrow topic.” Thus, case comments, event summaries, and other small-scale writing opportunities may open the door to more ambitious future projects. Another invited the participants to “ethically persuade people.” Finally, the panelists taught that opportunity, luck, and learning are continuous and dynamic, while the profession itself flexibly changes and adapts.
AAA’s diversity conference is one among the organization’s comprehensive efforts to diversify the arbitration profession. According to the ABA, self-administered arbitrations constitute 85% of U.S. arbitrations. AAA’s rules—adopted by the vast majority of U.S.-based arbitrating parties—are valid, due-process oriented, and court-tested. Even if the parties do not specify AAA’s rules and panelists, the institution can still assist with administering the case. As problems of enforcement and the involvement of civil law nations in international arbitration continue, the AAA’s prominent role in global arbitration is only poised to increase. The AAA—which fully funded each law student’s participation—is concretizing its commitment to diversity through the Diversity Student Summit, Higginbotham Fellowship, diversity-based funding, and other programs aimed at supporting early-career arbitration practitioners. ARIA, consistent with its own commitment to diversity and in the wake of a well-received Special Issue on Diversity (Vol. 34, no. 1), worked closely with the AAA to generate submissions for a Special Issue on the Russia-Ukraine War which will elevate Ukrainian and underrepresented voices in the arbitration community. ARIA looks forward to continuing to partner with the AAA to diversify arbitration scholarship and to open the path for talented diverse ADR professionals and future professionals to enter dispute resolution’s most promising field.