Q&A: Mediator & Arbitrator Bianca Motley Broom
Minorities, women and those who are LGBTQ are vastly underrepresented on mediation and arbitration panels. What can be done to address this?
When folks spend time in arenas where they are in the majority, it can be hard to put themselves in other people’s shoes to recall what it feels like to be “the only” – whatever that only may be. It can be isolating and fear-inducing to be among a group and feel as if you do not belong. The smart firms are making sure their clients don’t walk through the door and have that feeling. We have to put the call out for people who are: first, talented neutrals; and second, reflective of the people who come to us for resolution.
What does it take to resolve a seemingly impossible dispute?
Grit, tenacity and patience. Most people want to throw in the towel when the process gets uncomfortable, but that’s really when you need to roll up your sleeves and get back to work. Mediation sessions are often more mentally taxing than people typically imagine. Getting past those barriers often yield success at the end of the day.
How do you set the tone at the beginning of a mediation?
It is important that people are comfortable as we open a mediation session. Part of that starts with personal comfort. I would want someone visiting my home to know the little things that will make their visit more pleasant; I do the same at a mediation. I also do my best to find common ground with the parties. It’s rare there is absolutely nothing upon which the parties agree. We’ll spend most of the day focusing on the areas of contention; I try to start with the positives.
What do you say to parties who want to leave because things are not going well at mediation?
A neutral much wiser than me once said, “If the parties don’t know the other side’s bottom line at the end of a mediation, I feel like I haven’t done my job.” I share those sentiments. Even if a case is not settled in mediation, the parties should leave with a better understanding of the other side’s perspective. It’s my responsibility as the neutral to communicate that information. If we’ve gotten it all on the table and someone still chooses to walk, that is their decision. Ultimately this process is about self-determination of the parties. But more often than not, the participants who push through when it looks like a case may not resolve are rewarded in the end.
Mediators, attorneys and the insurance representatives in injury cases are mostly familiar with each other and can appear, to the injury plaintiff, to all be members of the same club. How do you make the injury plaintiff, who can feel like an outsider, comfortable in what is for them a very unfamiliar environment?
Going through a mediation can be quite intimidating! I’m always aware of that for the people who are going through the process for the first time. I try to check in with them on a regular basis throughout the day. As proposals go back and forth, I get confirmation they understand and are comfortable with each step. I tend to see my friends and family in a lot of the plaintiffs who mediate their cases with us. I want them to be treated with the respect and dignity they deserve – and to get their opportunity to share their story. This may be the first time they’ve fully had the chance to talk about the impact the underlying incident has had on their lives. It’s incumbent on me as the neutral to give them an environment where they feel at ease to do s
How do you establish credibility with parties at mediation?
A good neutral has to establish credibility at the start of every mediation. Even if the attorneys have worked with you before, odds are good at least one person has never met you – and that person is usually the one who’s got the most riding on the outcome of the mediation. You have to earn credibility with everyone in the room, and that doesn’t come from your resume. It comes from the skill you employ and the connections you establish and the tone you set from the opening statement.
Trauma impacts how people function, communicate, collaborate and negotiate with others. It’s crucial that mediators recognize the experiences and emotions that clients display at mediation. Sometimes the client’s needs can impact the process and outcome at mediation. How do you manage these types of mediations?
Whether we acknowledge it or not, we have all dealt with trauma. The trauma I have encountered as the result of my life experiences may not be exactly like what someone else is going through. However, the feelings of loss, fear, anxiety, pain, etc. are universal. I find it amazing how impactful it can be for someone to know they’re being heard when they communicate information about a traumatic event. First, however, you have to build trust. It is a gradual process, and one where a litigant’s attorney can play a key supportive role in creating a welcoming space for those feelings to be shared.
There are lawyers who think unless resolution is assured, alternative dispute resolution will delay a trial and increase costs. How would you respond to this view?
ADR is a chance to pull back the curtain and see what your opponent is thinking. The last thing an attorney wants at trial is a surprise. ADR helps parties to see a dispute from another perspective and leave with more information, even if there is not a resolution. I would always welcome the chance to have a fuller view of the other side’s case.