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Interest in Mediation

Interest in Mediation

How did you first become interested in mediation?

 

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Well, it’s very interesting I did not get into mediation, what’s called the ‘traditional way.’ Out of law school, I was looking for a job. Keep in mind that I went to law school at night, while I was working during the day. I was working for a stock transfer agency, so I went at night. The only way I got introduced to ADR in law school was in an Administrative Law class. We talked about arbitration, labour arbitration, at the AAA. Coming out of law school, that was my only context with ADR. Looking for a job, it was the early 70s . . . No, early 80s. I was having a hard time finding a job. I went for an interview at the National Association of Securities Dealers. That organisation is now called FINRA.

 

The Human Resources person met me, looked at me and looked at my resumé, and said, ‘You know, the job you applied for may not really be on target for you, but we have an arbitration department. Maybe you’d like to interview for a job in that department.’ I said, ‘Why not?’

 

So I went and interviewed for the arbitration department position and it was one of those days where it was a group interview. All of the people in the department interviewed me. It came down to another candidate and myself, and guess what? The other candidate got the job. That evening someone who was going to be my future boss called up and he’s on the phone. He said, ‘Tell me you haven’t taken another job.’ I said – little did he know I had no other prospects – but I said, ‘Oh, you know, I have a lot of irons in the fire and I’m just waiting to hear from some. ‘Don’t take the job, because I’m going to get another job’, and lo and behold, he had another position authorised and was able to hire me.

 

At the time, we’re talking about 1981-2 and this was pre- the strong push of ADR within the United States, the department was nine people in this one office and they had about 400 cases. Two years later, my boss leaves and I apply for his job. I came in with a plan of what I thought the department should look like. Lo and behold, I was actually promoted over people with much more experience.

 

It was an organisational plan on how to structure the department in a more efficient way. How to address customer needs, because our customers were public customers. These were in the days when investors would file claims in the arbitration department because they wanted to, not because they were forced to. They didn’t sign an enforceable pre-dispute arbitration agreement.

 

That all changed in 1987, when the U.S. Supreme Court decided the case of McMahon versus Shearson, where they basically said, because of SEC, Securities and Exchange Commission, oversight and other things, that although these were contracts of adhesion, that they were appropriate and they were enforceable.

 

Knowing that this decision was made, I met with my boss and I said, ‘We’re not going to be able to handle, in arbitration, all of these cases. We have to look for an alternative way to resolve disputes and I keep hearing people talk about mediation.’ So what we did, was we invited a few organisations to come in and pilot mediation at the NASD. This was about 1988.

 

I stayed at the NASD 17 years. By the time I left, our caseload went from the 400 I mentioned, arbitration caseload, to over 8,000 cases. We instituted, or integrated, mediation into the process. We were encouraging, and basically, getting both investors and the broker dealer community comfortable with the process of mediation.

 

We had a very vibrant mediation department. We had offices in six cities with 150 staff people. But 17 years in one place was a long time. I felt that my focus in the securities area was too narrow, so I left and tried to figure out what I wanted to do next.

 

What that led me to was a position at JAMS, the resolution experts. I was hired at JAMS to lead their East Coast region. I was responsible for recruiting mediators, many of whom were former judges, business development, staff development, and again, making sure the process went well.

 

Keep in mind, my orientation previously was heavily arbitration. JAMS, at the time, only performed mediation service. This was my opportunity to learn about commercial mediation, employment mediation and other types of using mediation effectively and learning it from the experts. I was there for four years. I also developed training programmes for the mediators and staff.

 

I then was recruited to work for AIG and that’s also an interesting story. But through working for JAMS and then working for AIG, that’s where my passion for mediation really sparked. Keep in mind, during that same period of time I was very active in the American Bar Association’s Dispute Resolution section.

 

I was like a sponge, just learning everything I could about dispute resolution processes and how they can be used effectively, and brought that learning into each of the organisations that I worked for. I was there at AIG for ten years and I instituted a dispute resolution programme that did three things. We trained our claims people to effectively use mediation in the claims that they were responsible for. I consulted with our groups on establishing mediation programmes. If they had a bulk of cases, or if they needed to institute a new process, we would work together on establishing the process to meet the needs of the individual departments.

 

The third is that we developed business intelligence about the mediators and arbitrators who were frequently, and maybe not so infrequently, used, so that the next person who wanted to use that individual mediator would have some context and background about the experiences of prior claims professionals.

 

It became a very fulsome bank when I left AIG. I think we had over a thousand people in that bank. Remember one thing, too, it was not to blacklist any mediators. It was really to give information about how to use this person effectively. Since then, I’ve been mediating and arbitrating on my own.

About the mediator

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Deborah Masucci is currently Chair and Board Member of the International Mediation Institute (IMI) and was former Chair of the American Bar Association’s (ABA) Dispute Resolution Section with over 9,000 members worldwide. She is a Board member for Access ADR. She is a member of the International Arbitration Club of New York. She also serves as a full time arbitrator and mediator. Deborah was recruited to AIG in 2003 to establish its Office o... View Mediator