Spotlight on AAPI Heritage Month: An In-Depth Discussion About the Importance of Diversity in ADR

What inspired you to pursue a career in ADR, and how did you first get started in the field?

Rachel: My path to ADR is a little different than many. When I was in-house counsel, I had spent months competitively interviewing for a new job with a large international company. It would have been a phenomenal opportunity. And I got the job. But something didn’t sit right, and I realized that my dream job wasn’t my dream after all. I ended up declining the offer, and a few months later, the figurative light bulb went off during a mediation that I attended as a client representative. I realized I wanted to be a mediator. I signed up for a mediation training class, and the rest is history. I knew this was what I was meant to be doing. However, although most experienced neutrals advised me not to quit my day job and to instead build a practice part time, that wasn’t feasible given my full-time in-house counsel position. So, I made a business plan, continued taking training and, a few years later, quit my job to start my own practice as a mediator and arbitrator.

Shirish: For me, it all started with an email blast from the South Asian Bar Association advertising a mediation training class. I hadn’t thought about becoming a mediator until then. I had recently left Biglaw to start a solo practice, but the email sparked my curiosity. I then talked it over with my wife, and thanks to her support, I took the plunge. Eventually, I grew my mediation practice enough to do it full time.

How important is mentorship in the legal field, and what role has it played in your own career development?

Rachel: I would not be where I am today, or have accomplished what I have accomplished in my career, without the mentors I have been lucky enough to have had. It is not an overstatement to say that my mentors have defined and shaped the trajectory of my career. My first mentor, when I was a summer associate at Seward & Kissel, helped me realize I preferred litigation to being a transactional attorney, which had been my original plan. One of my mentors at DLA Piper brought me the opportunity to go in-house at Ambac. And since I pivoted to ADR, I have again been lucky—and there’s really no other word for it—to have mentors who have personally invested time into helping me succeed. Without my mentors, I would not have become the lawyer that I was or the neutral that I am today.

Shirish: ADR is a solitary profession. Unlike in my firm days, there aren’t teams of mediators working on my matters. I don’t have clerks. At the beginning, I had mediation practice groups where we could share best practices and learn from each other and mentors—people who I could turn to without judgment. Joining JAMS gave me access to an even bigger pool of people to turn to for advice. For my first year at JAMS, my go-to colleagues were Judges Warren, Kramer and Larson. And with the shift to virtual JAMS-wide meetings in 2020, I got to know my colleagues around the country, thus expanding invaluable mentorship opportunities.

With this being AAPI Heritage Month, can you speak to the unique challenges that may be faced by AAPI individuals who are pursuing a career in ADR, and what resources are available to overcome these challenges?

Rachel: For starters, there aren’t many of us. Someone told me that I am one of only four full-time AAPI neutrals on the East Coast. This isn’t surprising given that the ADR field has historically been comprised of retired judges and law firm partners, and those ranks lack the diversity that we see in our everyday society. That lack of diversity presents a challenge because when lawyers picture a neutral, they don’t typically picture someone who is an AAPI individual. Candidly, they likely picture an older white male. I have to overcome that image, which people mistakenly have every day. Beyond that, people have other implicit biases that are triggered when they read or hear your name, meet you or see your image. Unfortunately, people unconsciously—or consciously—underestimate your qualifications when you are part of an underrepresented group. There are also challenges in terms of finding others in the field with shared cultural and life experiences who can mentor you or with whom you can collaborate. 

In terms of resources, times are changing. People recognize that this field does not adequately represent the population it serves, and organizations are taking steps to correct this. Every ADR provider has implemented policies and processes to help increase diversity and inclusion in ADR—to help AAPI neutrals and those in other underrepresented groups be considered and, hopefully, selected more often. And there are now more diversity fellowships and mentoring programs, including, but not limited to, the AAA’s Higginbotham Fellowship, JAMS’ Diversity Fellowship and the College of Commercial Arbitrators’ Associates Program. I’m extremely fortunate to have been part of JAMS’ inaugural class of fellows, and I’m looking forward to being part of CCA’s 2023-2025 class. These opportunities are critical for those of us who are looking to build a successful ADR practice.

Shirish: When I joined JAMS, I was the fifth Asian American JAMS neutral nationwide, and the only South Asian. One of the first things I did was help other Asian American lawyers develop an interest in ADR. Since then, the numbers are ticking up. AAA and JAMS’ commitment to diversity through the AAA’s Higginbotham Fellowship and JAMS’ Diversity Fellowship are helping. Next up is for users of ADR services to commit to using more diverse neutrals so that when someone joins our panel, they have a shot at gaining traction.

You’re both involved in diversity initiatives. What are some of the types of programming that you think would be valuable to the legal community?

Rachel: The best way to increase the selection of diverse neutrals is to ensure that those responsible for choosing neutrals understand (a) that the lack of diversity is even more pronounced in ADR than it is in the broader legal field, (b) the benefits and significance of increasing diversity in ADR and (c) how they can be part of the solution. Programming that is geared toward increasing that understanding and aligning it with the specific needs of those decision-makers when they choose neutrals would be extremely valuable. This would include introducing decision-makers to neutrals from underrepresented populations. 

Shirish: Rachel covered it well.

What advice do you have for law students or young professionals who are considering a career in ADR, and how can they best prepare themselves for success in this field?

Rachel: If you know that somewhere down the road you want a career in ADR, incorporate ADR into your legal practice as early as possible. Seek out opportunities to work on arbitrations or participate in mediation. If you’re interested in becoming a mediator, refine your negotiation skills, represent both plaintiffs and defendants and find opportunities to better understand what motivates decision-makers in settlement negotiations. I believe that some amount of experience as an attorney is crucial..

Shirish: I teach mediation at a couple of law schools, and students often ask about careers in ADR. Overall, I discourage them from going straight to ADR, posing the relevant question of why should someone hire you? Instead, I suggest practicing law to work on developing good legal judgment, and then consider a pivot. I might be biased because that’s the system I grew up in, but I know of only one professional neutral with no formal legal experience working on legal matters.

What is something you would change about the ADR field that could help promote greater diversity and inclusion?

Rachel: There needs to be more paying opportunities for people entering ADR earlier in their career. Part of why there is such a lack of diversity in ADR is because for many, it is only a viable career path later in one’s career and lawyers only get exposure to ADR as they get more senior. We need to make the field more accessible to those who want to spend a considerable number of years in the field—not just those who have retired from the bench or law firm partnership.

Shirish: Many of the DE&I structural barriers in ADR are there in the law. So, when the law values pedigree—and the recent Harvard lawsuit has shown that Asian Americans have been excluded based on race—the opportunities have been intentionally limited. That said, demand helps overcome structural barriers, so if Asian American neutrals are getting work, then other Asian Americans will be drawn into the field.

Rachel Gupta is a principal of Gupta Dispute Resolutions, LLC, and a past JAMS Diversity Fellow. She is a mediator and arbitrator with a focus on commercial and employment matters.

Shirish Gupta is a neutral at JAMS with a focus on class actions; founder and shareholder disputes; complex financial/technical disputes including IP, securities and accounting; and employment disputes. In addition, he teaches mediation at UC Berkeley Law School and edits the Rutter Guide on ADR.