Resolving Litigation: Psychology, Insurance and Diversity in ADR

The myriad factors influencing alternative dispute resolution (ADR) make it interesting. This month, I had the pleasure of interviewing Anne Kevlin of Kevlin Mediation and an exciting new organization she founded to highlight top women arbitrators and mediators, SheResolves. Our conversation highlighted three very different angles—how the mindsets of litigators and parties affect a matter, how insurance companies use ADR, and how a new effort to build gender diversity is faring. We also discussed the challenges facing arbitration and the risks they bring to this critical service.

Originally Published on Law.com by Rich Lee | March 29, 2024 at 10:49 AM – Resolving Litigation: Psychology, Insurance and Diversity in ADR

Our conversation highlighted three very different angles—how the mindsets of litigators and parties affect a matter, how insurance companies use ADR, and how a new effort to build gender diversity is faring. We also discussed the challenges facing arbitration and the risks they bring to this critical service.

Question: What inspired you to attend law school, and how did you get into litigation and ADR?

A.: I was a journalism major and initially dreamed of being a First Amendment attorney. In law school, my interests broadened into litigation. That led to 30 years in the insurance world, at times representing insurers or policyholders, at times managing in-house litigation teams, and at times managing law firms and outside counsel.

I frequently participated in mediations and arbitrations and became interested in the psychology and skills behind them. I studied a lot about negotiation and decided that was really what I wanted to do. Three years ago, I started taking courses to become a certified mediator and qualified arbitrator in Florida and opened my practice.

What are the roles and challenges of arbitration and mediation in insurance claims? 

Both mediation and arbitration are essential in the insurance industry. State rules and areas of law differ, but both mediation and arbitration can reduce the carrier’s litigation expense significantly and reduce how long the policyholder or the plaintiff/claimant may have to wait to get a decision. This is especially important in a state with overloaded court dockets. In addition to reducing litigation expenses, an expedient resolution process helps get money into the pockets of the policyholders, and results in more operating capital for insurance companies, which helps to keep the insurance marketplace healthy for policyholders.

However, arbitration has started to morph almost into court litigation. That defeats the purpose of arbitration: to speed up the process, make it more efficient, and get a result that people are comfortable with.

You’ve earned certifications from the Harvard Law School Program on Negotiation and the Straus Institute for Dispute Resolution at Pepperdine University, among others. What’s one thing you learned from those programs, and what is something that you learned only from hands-on experience?

Mistakes are how we learn. I think that’s one of the values of having someone experienced in ADR. But it’s hugely important to help new people quickly acquire that skill set, and that’s where those programs come in.

One of the most important things to learn is a litigator’s psychology and the ability to switch from a litigator mindset to a negotiator mindset. Merely arguing a position, without more, does not work in ADR, especially in mediation. You need to focus on a solution so everybody can be comfortable leaving the table. Switching the mindset includes being aware that parties and attorneys are often in a mental state controlled by the reptilian brain, or the amygdala, the part of your brain that takes over when you’re nervous, scared, threatened, or angry. You have to be skilled at getting people to calm down to have an effective session.

Another dynamic is that each attorney shows up to mediation or arbitration needing to impress their client. Attorneys may fear their clients will perceive them as being weak if they’re not being aggressive. Attorneys can avoid this problem by warning their clients that their demeanor in mediation will differ from when they are in court.

What aspects of arbitration stand out now that you are on the neutral side as opposed to when you were an advocate?

What bothered me as a litigator were inefficient arbitrations that required me to conduct discovery just like in traditional litigation or deal with unnecessary motion practice. These problems cost my clients, who were paying for the arbitrations. I wanted arbitrators to value my client’s time and mine and to cut to the heart of the dispute.

As a neutral, efficiency means asking the attorneys, “Do we have to do everything, or can we streamline it in terms of volume and time?”

It’s always a balance. You want to be fair and let the parties obtain the information they need to make their arguments. But there is no need to drag it out. In an early call with counsel, I try to figure out how quickly we can resolve the arbitration. I’ll set deadlines and hearing dates and rule on discovery disputes, which should be kept to a minimum. There shouldn’t be many motions in an arbitration. An arbitrator needs to take control of the situation and remind the parties and counsel that the whole idea is efficiency and fairness – not to turn it into litigation 2.0.

You recently announced that you started a wonderful new organization called SheResolves. Tell us about that.

SheResolves is an initiative that I, along with other women ADR professionals, launched in January. It is a network of women ADR professionals who want to connect, support, and promote women mediators and arbitrators.

We’re not assigning blame, but a number of articles and surveys show—to the extent that statistics are kept—that far fewer women are selected as commercial arbitrators and mediators. SheResolves wants to shine a light on the problem. We also want to offer a solution: our network of women ADR providers who meet our professional standards.

What kind of women are you hoping will join your network?

Standards may vary because every jurisdiction is different, and every practice area is different. However, our members typically have at least three to five years of ADR experience, which means full-time ADR professionals or close to full-time. For mediators, most members will have completed a minimum of 200 paid mediations. Most arbitrators will have served as arbitrators or umpires in at least three commercial binding arbitrations. Most will be qualified by an independent arbitral institution.

But again, it varies. We know that some of these binding arbitrations go on for years, so to find someone who has done 50 of them would be impossible. That’s why we want to be somewhat flexible in terms of standards. We will listen if somebody wants to explain why they’ve done only two binding arbitrations. Our application is on our website.

To join SheResolves, members must commit to helping other women in the pipeline. Women are starting to eclipse the number of men in law schools and the legal profession, at least in the early stages of their careers. That means there are many women we should mentor to become mediators and arbitrators.

Last year was challenging for diversity, equity, and inclusion (DEI), with the U.S. Supreme Court striking down racial affirmative action in colleges and a lot of backlash against DEI efforts in the larger narrative. How does that affect gender equity in law and ADR?

I remain optimistic, though. I don’t think underrepresented groups interested in correcting imbalances are going away—whether they are fighting for equity in ADR, on corporate boards, in CEO positions, legislatures, or elsewhere. I also feel the support from many people, such as white men, who are not in an underrepresented group but want to correct inequity.

You’ve spoken on how to resolve “impossible” litigation problems. What makes a case impossible, and can it be resolved outside of a court decision?

The most significant factor in an impossible situation is the parties’ attitude. Some parties are so angry that they can’t focus on a solution or a compromise—and that’s why courts will never go away.

If there’s anything that will diffuse anger, it’s letting a party be heard. It just takes time to allow that party or that party’s attorney to vent while you do some active listening. That’s especially true in mediation, where compromise is a goal.

In arbitration, you’re not looking for a compromise necessarily. Still, there is an opportunity to diffuse that anger by being empathetic and acknowledging the dispute and how painful it can be. You’re doing that because you don’t want a party to walk away without feeling heard. They may not like the result, but they should know the arbitrator respected them and their attorney.

That is the win. As ADR professionals, we focus on ensuring that our clients trust the process and don’t feel like they got ripped off because they were forced to go to arbitration. That’s when arbitration will go away.