Deborah Masucci FCIArb on why arbitrators should build their networks

We speak to Deborah Masucci FCIArb on the importance of mediation skills programmes, and how to maintain an edge in the field.

What made you decide to pursue a career in dispute resolution?

During law school I learned about labour arbitration in an administrative law class. I discovered the role of the American Arbitration Association (AAA) both as an administrator for labour arbitration disputes and an election monitor. I wanted to work for the AAA or become involved with labour arbitration but on graduation I couldn’t see a path forward. Instead, I was offered an opportunity to work in the arbitration department of the National Association of Securities Dealers. That job led me to a lifelong career in dispute resolution starting as an administrator for arbitration cases in the securities industry morphing into roles as a teacher/trainer, dispute design developer, writer, and an independent arbitrator and mediator. My path wasn’t traditional, but it was full of opportunities that I seized and built upon.

What do you find most fulfilling about your work in arbitration?

When people describe the role of a mediator, they use the term “problem solver”. I use the same term to describe what I do in my work as an arbitrator. The Parties present me with their dispute or problem, and I decide what is the best resolution or path forward for them. Using my analytical skills, I break down the dispute from all sides and apply the facts and law to arrive at a commonsense decision. I’m most fulfilled or satisfied when I believe the resolution is principled and fair to all parties.

As an expert in employment disputes, what are the considerations and challenges unique to resolving employment-related disputes?

Throughout my career I supervised as many as 150 to as few as one person. I also developed an employment dispute resolution programme for American International Group. In these roles I learned that oftentimes, an employment dispute arises because of poor communication between the employer and employee. These disputes are most easily resolved through mediation or another facilitative process. Empathetic listening to an employee’s issues by a person outside the chain of command can even prevent a dispute from escalating to mediation.

However, there are disputes that must be decided by an arbitrator despite the best efforts of everyone to try to resolve the dispute earlier in its life. The challenge facing an arbitrator is to ensure that the process is fair, especially where there are high emotions evident. Another challenge is understanding the intricacies of the applicable law.

There is no run-of-the-mill employment dispute. Local and national statutes must be parsed. Available remedies must be understood including the tax consequences of any monetary award or settlement. Arbitrators depend on counsel to inform and educate the arbitrator on the law; however, it’s incumbent on the neutral to become educated on the most recent developments in the field. Continuing education to maintain an edge in the field is critical.

You served on the IMI Task Force that established Mediation Advocacy certification criteria. How important is it for arbitrators to understand developments in other parts of the dispute resolution sector?

I’ve always been a strong supporter of skills development for an advocate. Yes, it’s important that an advocate be an expert in the substantive area of the law of the dispute, however, understanding the process used to resolve a dispute requires additional skills. How a person uses the mediation process and works with a mediator is continually evolving.

There were no mediation skills courses when I was in law school. Today, most domestic United States law schools offer mediation skills programmes to their students. Similarly, law schools offer arbitration clinics. These courses provide practical skills development that may help law students in their job search. The ICC, American Bar Association and other organisations sponsor mediation and arbitration competitions where the students can demonstrate their understanding of the nuances embedded into the different dispute resolution processes. Some are designed to test skills as a neutral, but many are focused on the advocates skills. I’m proud to say that for the last five years I couched many competition teams for Fordham University School of Law and they advanced to national wins because of their understanding of arbitration advocacy and their competency.

Despite efforts to offer students courses in advocacy skills, many practicing lawyers have uneven experience and skills in approaching the mediation process. That is why I developed an in-house mediation skills program for staff attorneys when I worked at American International Group. I worked with Hal Abramson and Stephen Younger to first develop a train the trainer programme, optimising the internal expertise of existing attorneys who would deliver training to the organisation’s 120 lawyers nationwide. The course material contained problems using commonly faced fact patterns. Expertise was established internally, and the skill level of all advocates was raised.

I felt so committed to in-house mediation advocacy training that with Wolf Von Kumberg, we delivered the first CIarb mediation advocacy training that was attended by non-lawyer in-house advocates. It was very successful.

The importance of mediation advocacy certification isn’t limited to lawyers. Very often, the company advocate is a member of the human resources department or a line manager. They also need the mediation advocacy skills to de-escalate disputes or resolve them as early as possible. Mediation Advocacy certification provides these key people with a credential that can be optimised in their career.

IMI is a leader in developing mediation competency. The Mediation Advocacy criteria builds on the already existing Mediator Skills competency. The hallmark of certification is a feedback digest consolidating information provided by clients of the advocate who explain how the advocate operates in mediation. The feedback is publicly available. Anyone interested in securing the services of a mediation advocate can review the feedback digests and determine whether to engage that person.

As someone involved in international arbitration organisations and committees – what do they contribute to the development of dispute resolution?

The world is getting smaller every day. We have a global economy created by the ease of purchasing goods and services through the internet. The art of resolving disputes whether domestic or international is more common than diverse. Many dispute resolvers around the world come to the United States to learn the different techniques - whether attending a programme at Harvard or Pepperdine Caruso School of Law or the Weinstein JAMS International Fellows Program or a masters in dispute resolution offered by many US law schools to international lawyers, they take their knowledge gained in the US back to their home country.

Education of dispute resolvers is a two-way street. There are many programmes outside the United States advancing dispute resolution principles and techniques. CiArb has a first-class programme. There are two aspects of the CiArb programmes that are unique in my opinion. The faculty is drawn from expert arbitrators worldwide. The use of virtual platforms to connect faculty and students around the world enhances the learning experience. In addition, the content of the CiArb programmes focuses on real life experiences and the application of international rules to problems faced every day by arbitrators and practitioners alike. The Singapore International Dispute Resolution Program was an outgrowth of the Global Pound Conference (GPC) sponsored by IMI. The Academic Committee Chair of the GPC was Professor Barney Jordaan of Vlerick Business School, who brought together numerous academic leaders in business and law schools to share their expertise and predict the future of dispute resolution.

How does this activity contribute to the development of dispute resolution?

The result of the GPC was a report identifying what is the future of dispute resolution. One aspect was the acceptance of mixing different modes. I was a central organiser of the Mixed Mode Task Force sponsored by IMI, the College of Commercial Arbitrators and Pepperdine. The result of its activities was a practical guide defining the different modes and providing suggestions about how to use them effectively, efficiently and ethically on a global and local basis. The work of the Mixed Mode Task Force was built upon by other organisations. It’s incredible to see all these initiatives come to life and become part of practice.

What has been the key to your success?

My success isn’t mine alone. I build networks and relationships that bring people together for common goals and objectives. My success is dependent on leveraging relationships and helping others be better at what they do in the field. I work to open opportunities for others, not just myself. Because if others succeed, so do I and my legacy is lasting through others.

Do you have any advice for people starting their careers in dispute resolution? 

Be curious and be open to continual learning. Don’t look for the perfect opportunity. You can make an imperfect opportunity into a life building experience. Don’t be discouraged if you don’t succeed at first. Building a career is a journey that requires hard work but remember to enjoy what you are doing and to be joyful. Finally, build relationships and keep your network apprised about what you are doing. You never know where your next opportunity will come from but, if your network doesn’t know what you are doing, you may miss a referral opportunity.

Deborah Masucci FCIArb is currently a full-time arbitrator, mediator and consultant in dispute resolution. She is an Honorary Director of the International Mediation Institute (IMI) and is former Chair of the Dispute Resolution Sections of the NYSBA and the ABA where she was a founding member of Women in Dispute Resolution.  She is an adjunct professor at Fordham School of Law where she teaches an arbitration practicum preparing law students to compete in arbitration advocacy competitions.

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