 Thank you, folks, for joining us. This is Think Tech Hawaii. Time for responsible change. In today's episode, we've kind of called winds of change just because that's a good place to start. So we have with us the amazing and very highly respected Rebecca Radliff, a longtime claim executive in the insurance industry. We did, unfortunately, make a mistake a couple of months ago, put an ESQ after her name, which we should not do to any real people. That's unkind. We apologize for that. That was our screw up. We have corrected that both in the last episode and this one. So make no mistake. Rebecca is a real person, not an attorney. She's a very senior insurance claims executive for many years. She also a highly respected mediator and arbitrator with jams and other entities. Also have Tina Patterson, who has worn a number of hats in her career, a product manager for software. Now urban planner, mediator arbitrator, including with the Chartered Institute of arbitrators. And third and not least, by any means, Ben Davis, retired law professor at the University of Toledo School of Law, former chair of the American Bar Association section of dispute resolution, and eminently respected scholar, and man about town in many times, including Paris, as I understand it. So, folks, what's your sense of the winds of change right now. What leaps out at you as the most important thing for things to pay attention to about change now. I think in order to affect real change, we have to keep the conversations going. We're all dispute resolvers and so naturally we facilitate tough conversations all the time. And I would encourage community organizations and churches and everybody to engage in conversations that are uncomfortable, because that's the way we have these conversations and we move forward together. So which people that have not historically connected in conversation and some of whom have been resistant, reluctant, or even adverse to that, which people in groups should be sitting down at the same table in those difficult conversations. This is Ben. And what I'd love to say is, people need to maybe first of all start stop tripping about their own trips. Okay, and to speak plainly with each other. What I mean by that is, I'll just take one category. All this effort to suppress votes that is going on right now in all these different states. Everybody, white, green, yellow, red, black, orange needs to say, are we Democrats in the sense of wanting democracy, or do we want dictatorship for some and democracy for others is a quote from Martin Luther King's 1967 speech about the three evils, the three evils he described were the evil of racism, the evil of poverty and the evil of war. And on racism he said that there seem to be people in the United States who want it to be a democracy for white people, and basically a dictatorship for non white. That's the conversation that we have to, is it democracy for all? Because we just saw it's a capital and effort to have an insurrection, mainly by white people who are upset about whatever. And the bottom line is, that's not possible. You're not going to have that. First of all, people have lived a myth. They've lived a myth that America has always been white and it hasn't. And secondly, they've been living a myth that they've been told, which is sort of like that white supremacy or some version of that thing, which is a myth that they just have hung on to, it makes them feel good maybe, but it's just nonsense. I think of that particular black officer who was there at the Capitol, who got called the N word he said 15 times, and he asked himself, is this America. And I say that everyone of good faith needs to say this is not America. It's democracy for all. And the other thing is, they need to talk about the fact that the COVID-19, for example, vaccination stuff that's going on now. The most at risk people, according to the Center for Disease Control, tend to be minorities for a whole series of reasons. And the way that states are going about doing this has got to be looked at to make sure that that is access is being to those most at risk first. Obviously teachers, yes. Obviously, but those folks who work at the checkout places at Kroger or wherever, poor people, all the people are carrying the burden of this COVID vaccine should be put at the head. We've got this thing going forward with regards to old people, and that's good, you know, but we got to think it's not just whether you can give $250,000 to a governor so you'll set up a pop up vaccination thing in your rich neighborhood, like happened down in Florida, or it's not about people who are not really the priority sneaking in to places in the Bronx and all that that have been set up to try to deal with those poor people and getting themselves covered. You've got to think about it. What are you about? I understand the panic, I understand the fear, but what kind of a decent person are you? And I would think that the preachers and the imams and the rabbis and all the religious leaders from the pulpit should ask, you know, that cold question is that how you are to the least of these is how you will be judged. And so focusing on the least of these first, I think is really important. I was personally happy that this rescue plan went through. I don't know all the details, but what I understood is it had a focus on poor and low income people first. That's what I'm talking about. That's the kind of thing that we need to think about to make sure we get this thing over with. So those are a couple of things in the conversation. Let's be wide open. Here's one. Why is it that Nixon, a majority of white Americans have always voted for the repressive first, the repression person, the person who wants to put the place to a retrograde, to go backwards. What is that trip that they thought? I think this last time with Trump, it was 57%. It wasn't just the poor. It was the rich. It wasn't just the uneducated. It was the educated 57%. What is that trip that these people are hanging on to? Because it's doing themselves a disservice, I personally think. And also it's doing the democracy that is America a disservice by being going with people who clearly don't have their interest involved. In mind. It's almost like, let me, let me smack you so I can cut off my own nose. Makes no sense. Sorry. Chuck, I think Ben's brought up a couple of good points, but I want to pull the thread a little bit further because I think it's what's the trip what's really underneath all of this is power, perceived power. For those who believe that they, by me giving you a piece of the pie means I have no pie any longer. It's the, oh my goodness. There's always got to be a loser if there's winners and losers. So if you're, if you're, if you're winning, I'm losing and I can't have that. What this is appealing to is that sense of, it's not even survival. This is about ego. This is about ingrained thinking and what we're taught what we've heard in some of it is privileged some of it is considering that you can't possibly be that you can't do that. You can't possibly have that that intrinsically belongs to me and if you have this. It's because someone gave it to you or because by law, it's been handed to you, you, you haven't earned it. It's the, it's the same thought process that goes through asking someone. Well, how did you get into that school, or how did you get that job. That person really being able to say I applied, just like you did. I, I am one on an interview. The underlying statement there is, you don't really deserve this you got this because someone handed it to you and you got this because you took it from me or someone who looks like me. I think the conversation that really means to be had is, what is it that you believe you are going to miss out on. And I also think it's not just those who are responding from this position of fear or losing something, but those who call themselves allies or advocates. Can you really have that conversation or you entrenched in your position that I'm right you're wrong and I will continue to make you wrong through conversation versus I heard you. But let's look at what's really happening here. And for those who are in that space who want to be advocates and allies, it's the conversation of who am I really willing to have that conversation with. Throwing down to a rally and yelling at somebody. That's one conversation but can you have that same conversation with your partner, your spouse, your cousin, your auntie, at the Sunday dinner, or that that family member who you've been avoiding talking to for the past four years because you just think they are so entrenched in a space that you can't think about. Okay. I know you got some thoughts on that. I just have to piggyback I mean those are all great points. I wrote down allyship Tina when you were just talking because of course we know in the dictionary that allyship is a noun. But when I'm writing I say allyship is a verb. And it's because you have to be willing to do something, not just say something. It's important that we have these conversations and people who have a platform of privilege, and you can have a privilege across different categories and situations. A lot of a lot of us have privilege, and we can help some somebody who doesn't have privilege in the space where we have it but obviously right now, we're talking about in a racial context, where people would be willing to facilitate these conversations and stand for what's right not what is easy. I was having a conversation with a friend who was talking about, well it's easier to be an ally or a sponsor for someone who who you know and care about and I said well the people over in London and all over the world who were marching back in 2020 for those weeks and weeks and weeks on end. I know my son but they were marching for his right to move around in his brown skin and not be harassed simply because he has brown skin. My son said to me, how can my skin color be a death sentence, or a jail sentence, it broke my heart. Allyship is a verb, you have to be willing to do something make statements and actually help to do the things that move the needle forward so that we can all live in peace together. One of the things that these three elements connect, not just the what needs to be talked about in the difficult conversation, but the who who's part of those who's connecting and the other piece that you alluded to the allyship as an active verb. As an action as a choice. What if, for example, I play my privilege card that another person who considers themselves privilege treats as an ace, then to win a point for diversity and inclusion. What if I'm appointed one of three arbitrators I'm party appointed there's another party appointed. And instead of saying well let's see who we want for the third I say. I'm going to recommend three women of color let me know if you have a problem. And I'll do that. If I'm appointed a mediator, I'm going to call them up and say look. I'm willing to cut my fee in half. If you let me have a co mediator and I'm going to pick who that person is subject to your approval and agreement. And it's going to be a diverse co media. And if they reject that, then I'm still going to ask, can I bring a shadow mediator as a mentee as a companion mediator whatever you want to call it is so every appointment. I get is going to be treated as an opportunity to play my privilege card for diversity and inclusion. That moves us from diversity equity inclusion to empowerment, it moves people from the roster of neutrals to the selection as neutrals. So that's within our field in the real world. It moves people from management to see sweet. It moves people from associates to managing partners and equity partners. It moves them from management level government employees to department heads and deputies. That's what we're talking about. That's right. Well you just talked about the what the who and the how. So, you know, yeah, with that suggestion so yeah I love that. It is allyship to me. It is allyship, but I think what you you underscore it and what you stated Chuck is that you are willing to take that risk. And it's a risk that for some, it could mean not being selected to be the chair or be a wing on an arbitration, or to be if it's a panel of mediators and it's multi stick party stakeholders. But you are no longer on the list of preferred mediators. Not everyone is willing to take that chance and I know that there's been lots of conversations about organizations, not supporting dispute resolvers of color. I think that's the real issue. I think the real issue is how do you move from being an entity and individual that's on a list to actually getting work to actually building your skill set building your tool set so that you are recognized, so that an ally can say you know my job is done here, you're on the roster you're being actively selected and and feel like that person, you've opened the door for that person and others can come along. I personally have an issue with coded words and one of the coded words that we hear in this space is qualified. Exactly qualified. What does qualified mean all four of us are qualified. We have the requisite training and experience to resolve disputes and when when someone says to me I'm looking for a qualified arbitrator or qualified mediator or a facilitator. Do you know anyone, and I have to pause and think, what do you mean. You need a subject matter expert, I can give you subject matter experts, I can tell you the names of subject matter experts, but if you're telling me that your qualified person has to look a certain way, I can't help you, because that's that's I'm looking at I'm looking at do they have the breadth and depth of experience, or would you be willing to bring them on board as you mentioned, and give them a space at the table, so that they can learn and and really hone their craft. It makes me think of the, you know, I'm a guy from international commercial arbitration worked for about 13 years at the International Chamber of Commerce in Paris on on international arbitrations. I always focus on that area is where I know, but I also always think of it as an advanced point on the color line. Okay. In terms of arbitration. And I recently saw a presentation made at the ITA in Dallas, where someone said that, you know, the reason these things end up the way they do is a kind of math is caution plus habit plus bias, you know and they said that is what's what's going on. And my response to that is, well, I've looked at the actual numbers in the top American international arbitration groups, and out of all the 3500 odd lawyers, only 1.5% could be considered to be African Americans in the American top international arbitration groups. That's the math that I think is clear that whatever that caution habit or bias is doing. The underlying thing is, there's a problem here, because that just seems to be a rationalization to try to make these numbers more palatable than they could ever possibly be. With regards to the use of privilege idea. Absolutely. I mean, there are lots of people of goodwill who looked at somebody who's got the skill set and will put their name for it. And those people are fine. Personally, in the 38 years in this field, I've never seen that there's been a problem of a dearth of people of color to be in international arbitration that has not been a problem. And maybe underscore that point I would emphasize that this list that Nancy Tevenin at the US Council and Catherine Simpson, who's an arbitrator put together with I don't know 167 people of African descent with a nexus to the US, who are either very experienced arbitrators, I think a Homer LaRue, a couple of other people Gabriel McDonald, or are people interested, you know, there's people to hire, there's people to promote, and there's people to appoint as arbitrators that are out there. It's just that whatever that trip is that mindset that thinks that only a old white man with white hair can do this is, you know, is wrong. It's just wrong. And it's appalling that I have to say this. You're exactly right, Ben. And I want to go back just for a sec to the risk element that Tina brought up because I think that's a critical factor in the willingness to cross the chasm to make the movement to action to really make a lie ship a verb. So for example, if I've got cases hand over fist. It's easy for me to use that as leverage to parcel out and to increase the involvement of diverse arbitrators and mediators on those by referrals by combination by whatever. If, however, as a solo practitioner, I'm just getting by. To me, taking that allyship verb and action that has meaning and value to me personally in ways that it could not if I had all those reasons. So I like it better that I skate on the edge. If you go over the cliff, you got two choices, right? There's either water down there or there's solid ground. You're going to find out. Right. Well, if I could just jump in one more time, just please on the risk thing. No one is talking about somebody not being prudent, right. Everybody, you know, you're looking for somebody who has the skill set, just like I think it was Tina spoke about. So you're trying to find someone who fits the case, right? Now, if it's a question about your own self or naming somebody else instead of yourself, I understand, you know, somebody's eagerness to have more cases for themselves. My personal approach has been that I was pitching this stuff in this area and I understood for myself that I will never be an arbitrator. I don't want to ever be an arbitrator because everyone will perceive me as trying to just get more arbitrations for myself, right? So that was a decision I made that, okay, I'm just going to be the guy who's going to be the megaphone out here to try to help encourage that others get those kinds of cases. And so if you have a specialty, I don't know, maybe it's IP, great. That's the kind of case that comes in for you. Go for that IP case. Then you find out about something that's got to do with the construction. That's not your real area. Yes, you have your fear of not having another case, but you're not really good at that. Well then you might suggest that the first candidate for that other kind of case or something like that. There's a lot of ways to get around the risk of always understanding that it's that don't let risk be one of those words again like prudence or habit or bias that is masking just the unwillingness to see a person of color or somebody who's got a disability or LGBT or woman. Personally, I think that black women should be getting all kinds of appointments right now. Because they they're an intersection of the effort to get women in and there's an intersection of the other get minorities in and a black woman who had a disability and was LGBT, that would cover all the four of the underrepresented groups that the ABA worries about, you know, but, you know, it doesn't seem to work that way. It seems like if it's a woman, there's been a lot of white women there and I understand white women allied with black women of color and that's great, you know, but, you know, that's got to translate into women of color getting those positions to it. You know, we can't forget that there were, for example, black women suffragettes who bought back in the early 20th century and then late 19th century for women to get the right to vote, you know, it's, you know, we can't believe the history, we got to recognize that history and make sure that we don't live again these myths, okay, myths that are exhausting, and they're just, you know, kind of like big lies that close to all of us. So, as we head into our last few minutes, Rebecca Tina has very accomplished professional women, despite adversities that people who look like me can't even imagine. What's your, what's your take on this, what needs to happen. I think Ben touched on it out when when he mentioned the willingness to hire promote others and a point when he said hire promote and a point. That there are opportunities for any of us as arbitrators and mediators to promote or refer a case that doesn't fit into our subject matter expertise to someone else and I really do believe that if you if you so good seed you read good seed if you put this out into the the universe it'll come back to you and and there needs to be more of us willing to do that willing to share what we know and share what we have, and it'll come back and and so you know I lose nothing by not taking a case that I'm not really well versed, you know if I'm not well versed in the subject matter, I lose nothing not taking that case because you take a case that you shouldn't and you probably won't do a very good job and so I lose nothing by referring one of my colleagues who's you know better better versed in a subject matter so also opportunities like you've suggested thinking of somebody you know seeing if you can co-mediator if you can have someone shadow so that they can learn or also make make some of the money and sacrificing some you know some of your own and then the appointment where that is an opportunity where there's an opportunity. Okay, last minute, Tina. I love the idea. Thank you. The altruism that we've mentioned and it's been interlaced throughout this conversation I think it needs to intersect with the business aspect so as far as service delivery and where we are in this field. The client, they want an efficient effective process, but they also are concerned that when they're in a space where the person either doesn't look like them, or does not appear to understand where they're coming from, are they going to be heard, and are they going to have their say in their process so it behooves us to think about this in terms of service delivery and if that means that your co-mediator is not the gender that you are not the race or ethnicity that you are but it's a win for the parties, it's a win for all. Great place to wrap up. It's also going to be a great place to keep in mind and start from two weeks from now. Come back and join us folks. Think Tech Hawaii, Rebecca Ratliff, Tina Patterson, Ben Davis. Difficult conversations to make good trouble. Join us again.