[PODCAST] Diversity in ADR and Creating Access to Justice

In this new podcast from JAMS, neutrals Otis McGee and Rebekah Ratliff and diversity program manager Joanne Saint Louis discuss why increasing diversity in ADR is critical for legal and business communities and the steps JAMS is taking to ensure its own panel is representative of the attorneys and clients that use its ADR services. Otis and Rebekah then discuss the important role diverse neutrals play in ADR and how ADR increases access to justice.

Moderator: [00:00:00] Welcome to this JAMS podcast, where we are celebrating Black History Month with a conversation around diversity in the field of alternative dispute resolution and access to justice. Our guests are three JAMS professionals: Rebekah Ratliff, a former commercial insurance claims professional; now mediator, arbitrator and neutral case analyst specializing in complex insurance disputes based in Atlanta; Otis McGee, a former trial lawyer, who's now an arbitrator, mediator and special master based in San Francisco; and Joanne Saint Louis, a diversity program manager based in Atlanta.

Thank you all so much for your time. Joanne, let me start with you. How would you characterize the progress that the field of ADR has made in bringing more diversity to its ranks in recent years?

Joanne Saint Louis: [00:01:00] I would say if I had to choose one word to characterize that I would say "evident." We are definitely seeing progress made, but it is not enough.

We have seen throughout the years, there have been several initiatives, as well as discussions, that have been made to be able to help increase diversity within the law firms. And we still are not where we need to be within the legal profession, which then makes it even harder to achieve the diversity that we want to see within the dispute resolution. So yes, we've made progress, but we still have a long ways to go.

Moderator: [00:01:30] Okay. And then let's just spell out why is it so crucial to build a diverse pipeline of ADR professionals?

Joanne Saint Louis: [00:01:37] Well, it's definitely important to build a diverse pipeline as well as panels in ADR, because you want the ADR community to represent the population of which we serve. So it's very important that the demographics that we have within the professionals that are handling these cases, as well as neutrals that are overseeing these matters, represent the clients which they serve. I will definitely say that it's important to plant the seed, it's important to have diverse practices that are handling these cases. At some point, these practitioners will become the neutrals that are placed on different panels overseeing these matters, so it's important to make sure that we're continuing the discussion.

I will also say, it's not just important to see it in the practice area. We need to make sure that we're taking a multifaceted approach in how we discuss diversity in ADR. It's not just to see it on the practice area level. We also need to have these discussions with the clients, the in-house counsel, the outside counsel. These are the individuals that are selecting diverse neutrals. So, it's really important to give them the tools that they need and to really educate them on the importance of the selection process and making sure that we have diverse neutrals that are seated, overseeing these cases.

Moderator: [00:02:48] And I know JAMS is involved in building that pipeline. Can you talk a little bit about what the organization has been up to?

Joanne Saint Louis: [00:02:54] Absolutely. We have, as we discussed, a multi-faceted approach that we are taking on, we have initiatives that we've created, we have created different programs in which that we work with organizations and affinity groups to be able to create that pipeline and plant that seed of the practice of ADR; but also making sure that we're giving them the tools that they need to be successful in this space as well.

The other thing that we're looking to do is to create a fellowship program that will assist with the pipeline and making sure that they get the mentorship and sponsorship that they need in order to be fruitful. Also, we have an outreach committee within our diversity committee that is working with outside counsel and discussing with them initiatives that they have to their disposal, to be able to see an increase of utilization of diverse neutrals.

We have what we call here at JAMS, we've created the Inclusion Clause. Within the Inclusion Clause, we have verbiage that you can place within your contract that states that when you have an arbitration case, that you will consider utilizing a diverse neutral. You also have other initiatives that we really like to educate outside counsel and in-house counsel on, which is the ABA Resolution 105 , which also assists with seeing the increase of the selection process.

Now we always say,  if you build it, they will come. Yes, as an arbitral institution, we can always increase diversity within our panel, but it's really important to see them get selected, and that creates the inclusion and the equity aspect that's definitely needed, and we need to be able to see within diversity in ADR.

Moderator: [00:04:21] Well thank you, Joanne. And Rebekah, can you talk about your experience in the ADR field? How did you get involved? And did you perceive any structural barriers?

Rebekah Ratliff: [00:04:29] Yes, my background is in insurance. I am a former commercial complex claims professional of 25 years, almost all 50 states and internationally in a bunch of subject matter areas.

So I handled, as an adjuster, cases in medical malpractice, products liability, auto, trucking, almost anything personal injury, commercial premises liability. So I  have experience again in a variety of subject matter areas. But even with that, the structural barriers that I experienced were embedded in the insurance industry. Thirty years ago, there were very few people who looked like me in the commercial claim space.

And so I worked through a lot of microaggressions, and again, we know that microaggressions are generally based on unconscious bias in our industries, and really there's an intersectionality with regard to unconscious bias or implicit bias. But that was just the reality, and you keep your head down and you do your work, and you achieve success in the industry by showing rather than reacting. And so a mentor told me that I was living beneath my skillsets a few years ago and that I should consider mediation given my expertise in case evaluation and negotiation. And so I considered that as an option. And that's the way I got into ADR. I understand dispute resolution from the perspective of the payer, which makes me an effective dispute resolution professional.

Moderator: [00:05:53] Thank you, Rebekah. Otis, can you talk about how your career led you to ADR?

Otis McGee: [00:05:57] Over the 40 plus years that I served as a litigator and trial attorney, I was involved in any number of ADR procedures, mediations, in particular with JAMS. And during a lull in one of those mediations, the person who was serving as a mediator suggested that with my background, as a trial attorney, I might want to consider moving into ADR at some point in my career. So I began looking at potential opportunities 10 or 15 years ago, and gradually as my career as a trial attorney was reaching the point that I was thinking about hanging up on my spurs, I decided to look into ADR and came to JAMS a year and a half or so ago.

Moderator: [00:06:46] And, Otis, what do you think has helped spur on more diversity in the ADR profession?

Otis McGee: [00:06:50] Without a doubt, one of the significant matters that gave rise to a sensitivity to the need for having more diverse panels by ADR providers was the Jay Z litigation. Jay Z,being a rapper - very well-known, very prominent - who had a business of clothing and was in a $200 million dispute with a company that was involved in the production of his clothing line. And when the dispute arose, the company demanded that this dispute be resolved with binding arbitration being provided by one of our competitors, and Jay Z resisted a continuing in the arbitration because that provider only had three minorities, three arbitrators of color, on its panel to handle complex, high exposure, commercial matters. And one of those three had a conflict, so Jay Z refused to go through with that arbitration until that provider came up with a more significant and diverse panel of prospective arbitrators that he could choose from. Jay Z's words were "there's nobody on this panel that looks like me and I don't feel comfortable arbitrating this $200 million dispute with folks that don't look anything like me." So that was in 2018, a case that I think sent shivers, if not a shockwave through the arbitration community of the need to more significantly diversify their panel.

Moderator: [00:08:31] So a case that really brought home the importance of diversity in the ADR professional

Otis McGee: [00:08:36] The diversity in ADR brings to the table, brings to the forefront, individuals who look like the parties in litigation. And as well as the users of litigation, they bring individuals before it, to the table, that can add some degree of comfort to individuals who are going through the process because they want to, many individuals want to see somebody in the room, particularly someone who's involved in a significant aspect of the proceeding who looks like them, who has an appreciation for what they've been going through.

Moderator: [00:09:17] Rebekah, what do you think can be done to increase the visibility of diverse ADR professionals?

Rebekah Ratliff: [00:09:22] Affinity relationships in ADR are a great way to give visibility to diverse neutrals, and Joanne mentioned Resolution 105 -- that's an effort in the American Bar Association, but also the national bar association has a certified list of mediators and arbitrators that are National Bar Association trained. And, so, if every entity is doing their part, then the visibility of diverse neutrals increase.

Moderator: [00:09:50] Otis and Rebekah, as Black ADR professionals, can you both talk about the value of bringing your authentic self to each dispute you handled. Rebekah, I'll start with you.

Rebekah Ratliff: [00:10:00] Trust, we know, is an essential pillar of mediation. And, so, it's important for every mediator to bring their authentic self to mediation, arbitration. That is the only way that you can really relate to the people in the room, and my philosophy has always been, everybody else is already taken, might as well be myself, and I bring my humanness to the room. And the patience that is needed in a hearing is one way to establish trust, in addition to maybe paying a compliment or just establishing something in common.

It's important to understand, and I handled, again, civil tort cases. So, it's important to understand the human condition and be discerning about what people really mean. Sometimes, people don't say what they really mean. They are not able to articulate it sometimes for various reasons. Sometimes emotions are high, so it's important for me to use the skills that I have authentically in order to enable them. And I say all the time, I'm the daughter of a pastor and a nurse, I have a psychology degree, and I was a claims adjuster for 25 years. And so my background demonstrates that I care about people.

Moderator: [00:11:05] And, Otis, what about you? How do you talk about the value of bringing your authentic self to the disputes that you handle? 

Otis McGee: [00:11:11] Well, I think that's one of the values that we as diverse neutrals bring to specific situations. We often will read facts and read situations differently based on life experiences that we've each endured.

And if I can give you an example related to a mediation that I handled fairly recently, it was an employment dispute that arose from the termination of a long-term employee by the owner of the company who was an elderly African-American woman, a very accomplished woman, who was very proud of her achievements and the support that she provided in the form of scholarships, for example, to the members of the minority community. And she had heard from other employees that one of her long-term employees, the plaintiff in this action, had been saying things that were detrimental to the company, detrimental to her as the owner, and spreading rumors that the owner of the company hadn't been doing, as donors were expecting in terms of the handling of donations for scholarships. So the owner of the company, this elderly woman, terminated the employee and following some very contentious litigation, the company prevailed in the litigation. Thereafter, the owner of the company sued the former employee for malicious prosecution and the employee turned around and filed a anti SLAPP action against the owner of the company. So, there was all this litigation taking place. All of it was being funded by the parties. There was no insurance involved. So the owner of the company, as well as this former employee has spent all of this money in a fight with each other. When I got the mediation, I had a pre-mediation meeting with the parties, and I learned during that pre-mediation meeting that neither side had ever sat down with the other to find out what their particular story was.

So I did something unusual in that case, and that was to get the attorneys to agree that I could talk to the parties without having the attorneys present. And in the course of doing so, I learned that everything that led to the termination was information that the owner of the company had received secondhand. None of it was information that she had any firsthand knowledge about . And as a result of sorting through the issues that gave rise to this termination, I was able to get the parties to agree, to dismiss the matter for a waiver of costs as to each claim, and they left the arbitration shaking hands and making friends again, as they had been during the long term of the employment relationship between the two of them.

So I think I read that situation differently than others. Basically, it was kind of a, he- said- she said spat and we were able to get it resolved with a waiver of costs.

Moderator: [00:14:24] And also just additionally, how do you leverage, Otis, language and culture to help parties find resolution? In addition to being able to read the room?

Otis McGee: [00:14:32] Well, being able to pick up on nuances, with being able to pick up on jargon and different language that you won't necessarily find when you pick up Webster's dictionary, you won't find out how terms are being used, but they are sometimes occasionally used some vernacular between the parties and it's helpful to be able to understand the meaning of that terminology and different mannerisms of parties that don't become apparent. It's not something that you necessarily picked up in law school or in the course of a litigation practice over the years.

Moderator: [00:15:11] And, Rebekah, how do you go about building trust in the ADR process with frankly, some people who have generally viewed our justice system with skepticism and cynicism?

Rebekah Ratliff: [00:15:20] The ADR process is just that, it's a process. And so, you have to use patience and active listening skills. In order to determine what the interests are in the room. And sometimes as I mentioned a little earlier, finding a common thread without self-disclosure, because people, when they're telling you their problems, they don't want to hear about yours. They don't want you to tell them yours too. And so it's important to listen and to understand what really the interests are, and also be creative in crafting ways to convey accurate messaging to the other room.

But you can express a desire to understand. What happens in our community, what we know is, litigation is not a trusted process. ADR mitigates the inequality in the litigation system. It's less stress, it's less cost, less time. And so one of the things that we have to do is educate our communities about the benefits of resolving cases and moving on with their lives in ADR, or at least mediation you control the outcome. Mediation is self determining, and what better way to be heard and make your own decisions about what resolution looks like. And arbitration, it's not as formal as trial and you can present your information in a less intimidating situation than trial. And so it really, I think, comes down to education.

Moderator: [00:16:42] And, Otis, how do you see the benefits of ADR?

Otis McGee: [00:16:45] ADR can bring a number of things to the forefront. One is certainty. By going to an ADR organization, parties can select the individuals who are going to be the decision-makers in their cases. They can do so in a more expeditious fashion because the court says everybody's recognized. Particularly with COVID, you can't get cases resolved as quickly and expeditiously as you can through the ADR process. You can't do so in the court system with any expectation that a particular person is going to be the decision-maker on the case, whereas you can do that in the ADR process. So the certainty, the expeditious nature of it, because of the calendars and availability of neutrals in an ADR organization, may be much more predictable than they are in the court system, which is now getting a tremendous backlog of matters having, in large part, been impacted upon by COVID for the last year.

Moderator: [00:17:54] What makes you hopeful that ADR can continue to live up to its promise to bring more access to justice? Rebekah?

Rebekah Ratliff: [00:18:01] Otis just said it, as a matter of fact, I was thinking it as he was saying it. COVID-19 has forced us into the option of ADR. It's a good thing for us, and it's unfortunate that people are in dispute, but since they are, and there's inaccessibility to the court system. Disputes will continue to arise from issues derivative of COVID 19 and what I call the overlapping pandemics- world-wide epidemics like the housing crisis and weather events, the economic downturn, civil unrest. There are different issues that will give rise to ADR cases, and we will facilitate those compromises.

Moderator: [00:18:37] And, Otis, are you hopeful that ADR can bring more justice to more people?

Otis McGee: [00:18:42] I absolutely do, I believe that's the case. And I think that among the things that we as ADR neutrals have learned over the course of the last year was the efficiencies that can be gained by the use of the virtual process. I mean, for the last year, the vast share of the work that I've done, both in mediations and in arbitrations has been in a virtual mechanism. And aware as I had reservations and many clients had reservations early on in this process, as we've become more and more familiar with Zoom and other technologies, we've found that it's a mechanism that even when we return to a more normal workplace, I think we fully expect to use those virtual technologies, because they are so efficient and in many respects, economical that we intend to continue using them. I handled a very large arbitration that went on for over a month with witnesses and parties all over the country, and we were able to handle that in a very efficient manner by doing so in Zoom, and I certainly intend to continue using that process when we return to a normal workplace.

Moderator: [00:20:02] The return to normal, that's a hopeful way to end this. Thank you, both Rebekah and Otis. And thank you, Joanne, for a great conversation.

You've been listening to a special podcast from JAMS, the world largest private alternative dispute resolution provider. Our guests have been: Rebekah Ratliff, mediator, arbitrator, and neutral case analyst specializing in complex insurance disputes based in Atlanta; Otis McGee, arbitrator, mediator, and special master based in San Francisco; and Joanne Saint Louis, diversity program manager based in Atlanta.

For more information about JAMS, please visit www.JAMSadr.com.

Thank you for listening to this podcast from JAMS.