Natalie Armstrong-Motin of Marketing Resolution recently interviewed IMI Board Co-Chair Deborah Masucci about her career and the upcoming Singapore Convention on the Enforceability of Mediated Settlement. Find the full video and transcript below.
- DM – Deborah Masucci
- NA – Natalie Armstrong
NA: Hello everyone. Thanks again for joining me on the Marketing Resolution YouTube channel. Today I have speaking with me Deborah Masucci from New York. Hello Deb. How are you?
DM: Wonderful. How are you?
NA: I’m doing really well. Thanks so much for joining the program today. I love chatting with you. You’re so passionate about what you do.
DM: Well I’ve spent a good 30 years – and I don’t like to publicize it – but a good 30 years in the in the area of dispute resolution.
NA: That’s one of the reasons I like talking to you so much – it makes me feel young. I’ve ‘only’ been doing this for 25 years. In our industry, that makes us the old gals.
DM: Yes, no gray hair.
NA: No, no, no, no. I have a little Christmas tinsel. But no grey hair.
NA: I was hoping that today you could introduce yourself a little bit. Tell everyone who’s watching a little bit about who you are, what you do, where you do it. Give us a bit of insight about your practice if you could. And then I want to jump right into some really fascinating content that you’ve written about recently.
NA: Would you introduce us to your practice?
1:27 – 3:54
DM: So, as I said, I’ve been working in the field of dispute resolution for over 30 years. I started in the securities industry, where I led their dispute resolution program handling customer fraud claims as well as misrepresentation and other types of securities claims. I then moved into working for a provider – which was JAMS – and JAMS at the time was just a California-based company. Today it’s a global provider. Doing that, I moved into the area of commercial disputes and then for 10 years I worked for a global insurance company named AIG, where I developed their dispute resolution program. In doing that, I put together for them a digest for mediators and arbitrators globally, worked with them on training initiatives as well as created business intelligence about mediation and arbitration.
DM: Throughout my career I’ve also taught – I’ve been an adjunct at Brooklyn Law School where I headed the dispute resolution program, Cardozo and most recently at Fordham Law School. I have also taught in business – I am co-Dean of the Claims and Litigation Management Association’s Mediation Advocacy program. So, I have this broad generalization, but what I do now is I’m a full-time mediator and arbitrator as well as a published author in many different arenas talking about the field as an arbitrator.
DM: I focus on employment disputes insurance disputes and commercial contract disputes
NA: And as a mediator? You have a specialty as a mediator?
DM: The cases that I’ve handled include property and casualty cases, again borrowing from my insurance background, coverage disputes borrowing from my insurance background, and employment cases – so broad range of cases
NA: You know your bio is, I mean it’s outstanding. It’s really unparalleled. A very impressive career that you have.
4:08 – 5:37
DM: One of the things that I’ve had to do throughout my career is recast myself. And I think that is one of the most important thoughts that should come out of this discussion. A lot of people get pegged in an area and are known for that specialty. But from being a provider to being a mediator to being an in-house counsel, I’ve had to recast how people think about me. Most recently in my role as Chair of the Dispute Resolution section for The New York State Bar I created a guide for people who are entering the dispute resolution field to help them understand what they need to think about before they embark on a career. Because not everybody is successful, and you know a lot of times they learn what they should do by just talking to people. So especially for New York State practitioners, there’s just not one place for them to go to learn about what they should do. We also have to keep in mind just because somebody is a good litigator doesn’t make that person a good mediator. So this guide is intended to give people a fresh idea about that.
5:37 – 6:59
NA: That’s an excellent point. You know, I’ve participated in the industry over the last couple of decades. I do see things changing a bit. We have become far more specialized in our industry than we were initially. It used to be not too difficult to open a general practice. It is now quite difficult to open a successful general practice. It’s important I think for providers to understand that clients don’t want to pay for you to learn their special case situation.
NA: If they’ve got a construction case, they want you to be able to read a set of blueprints. If they’ve got a medical malpractice case, they expect you to be able to read a medical file and understand medical terminology, its practices and procedures. And so, I see that specialization has become more important – and that doesn’t mean of course you can’t do more than one thing. But I would suggest anyone starting out in our industry to pick one thing, do it really well, and your practice will naturally evolve to it to include other things – and it can change over time. But for any entrepreneur or any businessperson, regardless of the industry that they’re in, I would always suggest pick one thing and do it really really well.
DM: Well that’s exactly right. And one of the things I talk about in this guide is that this is also one of the – it’s a personal services business. So, the way you get other business is by doing a great job on the case you have. So that those people recommend you to somebody else – because that’s how you gain traction. So, even if it’s a small case that you’re handling, do the best job that you can, because that’s how you’re going to get your next job.
NA: Exactly. It is all about having trust in our prospective clients and sources of referrals. So what I what I wanted to talk to you about mostly – I love that topic, you know I’m passionate about it – but what I really wanted to ask you about – I am super curious about a couple of articles that you’ve recently written about something called the Singapore Convention. What is it that I need to know about this topic?
8:03 – 12:22
DM: So, this is going to have – some people call it the “Full Employment Act for Mediators”. As we all know, in the arbitration field, for cross-border disputes, The New York Convention is really the model that people look to. The New York Convention put its step of imprimatur into arbitration, so that arbitration is now one of the most professionalized areas of law throughout the world. So, we saw that there might have been a real lack of a similar type of enforcement mechanism for cross-border mediated disputes. If you tried to mediate a case in Africa and you did settle it, what mechanism would help you to enforce that actual mediation settlement? You had to rely on the courts of the country in Africa that you were in, and sometimes that means that you have to start an initial proceeding to really enforce that mediated settlement.
DM: So, the United States actually made this proposal to UNCITRAL about three years ago to think about creating a convention for the enforcement of cross-border disputes. After three plus years, the UNCITRAL was able to create a convention for the enforcement of mediated settlements that was adopted 2018.
DM: They not only created the Convention, but they also created a Model Law because some countries have – civil law countries in particular – have a model law system rather than a convention system. This Convention for the Enforcement of Mediated Settlements is called the Singapore Convention in honour of the chair who managed all of the proceedings who comes from Singapore.
DM: What does this convention do? It helps parties who have a cross-border dispute resolve them and have confidence that once that settlement is created, it can be enforced in any one of the countries that adopts the Convention. The Convention needs to be approved by three countries, and we’re working towards that. There will be a signing ceremony in Singapore in August of this year that will really be the kick-off for getting many of the countries to approve the Convention.
DM: Some of the key provisions of the Convention – as I said, it really is focused on commercial disputes. It also allows – it has belts and suspenders, so any settlement agreement that is reached needs to have confirmation that it was legally obtained. So, it has to either be signed by the mediator, or comply with the rules of the state where the mediation takes place. There is in the law, in the Convention, a definition of what ‘international’ means, because they found that there really is no common understanding of what an international instrument is. So you know that the Convention itself answers a lot of questions about mediation, as well as gives confidence in the product of the mediation session.
12:23 – 15:33
NA: OK. And so, once the three countries have signed onto the Convention, then it can be put forward then worldwide – correct?
NA: How many countries do you expect to join in on this new international arrangement?
DM: Well, we’re hoping that as many as 20 countries can do it in the first instance. We believe Singapore – again because the Chairman of those proceedings was from Singapore – will be the first to sign on. There are many countries where they’ve adopted mediation statutes to support mediation in the countries – Brazil, India, and China now is looking at something similar. We hope that they will immediately buy into it. And of course, since the United States introduced the idea, we’re hoping that the United States will be one of the first to adopt it also.
NA: Well I think it is a brilliant program. It’s a question that, you know, you and I have chatted about for quite some time, and it is important. We know the world is getting smaller and smaller, and international business is becoming more and more the norm for all of us. And so to have these kinds of protections, to have these kinds of understandings, to have this kind of communication platform available for us – just to have a common language across borders I think is really, really important – for not just us as an industry but primarily for the consumers – the clients, the people that we help on a regular basis.
DM: Well we all know that mediation is popular in the United States and North America and in Europe. But a lot of global companies who really use mediation on a regular basis have been unable to get their counter parties for disputes to the table. And one of the reasons that always comes up is there’s no enforcement mechanism. “I’m going to have to initiate an arbitration proceeding anyway if I want to enforce the settlement. So why bother?” – it’s an increased cost. Well, this convention will answer those barriers and reduce them.
NA: Yes, I think it’s absolutely brilliant, Deb. I love that you’ve put in so much time and so much effort to help get this put forward. It’s really, really admirable work that you’ve done. And by the way, are you going to go to Singapore in August for the signing?
15:33 – 16:33
DM: Oh, I’ve been there. I was there in conjunction with a Global Pound Conference. I will say that it’s going to be a stupendous event where many people are represented. And it recognizes that Asia is becoming a major proponent these days of mediation. So I hope to get there.
NA: Yeah, it is definitely important. And Singapore is one of my all -time favourite cities – I love Singapore. So, it’s always an easy invite to accept, to go to Singapore. So, now that I know that that’s one article that you’ve written about and that is really exciting news for our industry. But you mentioned that you’ve got another article that’s going to come out published by Cardoso this summer. And what is that article – is that a little bit different for us to read?
16:33 – 20:10
DM: Well it’s coming out through the Cardoso Dispute Resolution student group, and it’s going to be a part of a series of law review articles about the Singapore Convention and will be published in time for the August convening. And it will go into the personal experiences of everyone who was involved in the creation of the Singapore Convention. It talks about what went into it in terms of the negotiation that occurred during all of the Working Group 2 meetings. There are eighty-nine countries that were part of the discussions and in some respects, you could say that the entire conclave of Working Group 2 was a mediation – a multi-party mediation – itself, because there were people who didn’t want anything to do with the Convention. They basically said, “this is a problem looking for an answer – it’s a resolution looking for a problem.” They basically said it wasn’t necessary, “nobody’s complaining that they can’t enforce settlements. Nobody is complaining that people are walking away from settlements.” But it’s getting those people into the room and at the table that was really the problem. So my article talks about why users want a convention; why it will help commerce to have this enforcement mechanism. And then I talk a little bit about my observations as a delegate from the International Mediation Institute, about how the discussions and negotiations proceeded. There are other people who will have similar articles on how the discussions proceeded and were negotiated.
DM: For example, the EU was staunchly opposed to a convention from the beginning, and in the end, they became advocates for the Convention. So that will be very eye-opening for people who read all these articles.
NA: Right. Well I can’t speak on behalf of the EU representatives – I wasn’t a member of those meetings, but I can tell you as a person who lives in the EU that, generally, our first response to anybody who wants to add more regulations to an EU existence is going to get a little pushback. And that’s just it’s not that they probably didn’t agree with what needed to be done or what the convention would do or signal in in our industry, it’s that we in the EU are so heavily burdened by regulation that our first response to anyone who wants to add just one more regulation to our life is going to be an instant “no”. And then you have to walk us back from that ledge to convince us of what we already know is true and correct, and that these are necessary things to have.
20:10 – 22:56
DM: So the problem from my perspective is that the EU did one thing that was fantastic – by adopting the EU Mediation Directive, that was a great advantage for the EU. The problem from my perspective is they left it to all of the EU countries to figure out how they wanted to execute it.
NA: But you know, again this is a conundrum that you know you and I have been talking about at international conferences for four decades. As a relatively new professional industry, these are things that we have to talk about and overcome these challenges, because these processes, they’ve been around for thousands of years and they will continue to be around for several thousand more years. You and I won’t be here, but we do need to install practices, policies, and procedures that ensure that we as practitioners give our clients the best possible outcomes and the best possible ways in which to make those outcomes have some teeth. We need to give them the strength to make all of their efforts pay off.
DM: Well, I think that it’s incumbent on every one of us to be educators in that regard. You know as much education as there is out there, there still needs to be more, because with every person that we touch, we have to reinforce what the goals of mediation are – how it’s carried forward, what’s the best process, and shed light on something that’s very helpful.
NA: That’s exactly right. It’s too bad that you don’t see mediation and arbitration on Law and Order. You know you always see people go to court. Our jobs would be a whole lot easier if we had mediators and arbitrators on the CSI cases.
DM: Well that’s true, especially if when they are on it, they’re characterized correctly. We have to be behind the scenes and giving that advice to the producers on what the real skinny is.
NA: Yeah, I always think it’s so funny – I get really excited when I do finally see a mediator or an arbitrator in a film or television production piece, and then I’m always so disappointed because it’s just not right.
DM: I know exactly what you mean.
22:56 – 25:04
NA: Deb, I want to be sure that for people who are interested in these topics, your website has a wealth of information – an absolute wealth. It’s like the Congressional Library of information, your website. So I want to be sure that we give your website. The website that I know and use is debmasucciadr.com, and I’m going to put that in the description bar below so that people can just click on it and not have to worry about spelling your last name correctly.
DM: That’s great. That’s great.
NA: And then of course, when your articles come out, you update your website – you’re really really good at that – so people can log on find those important pieces of information and learn more about how imperative having this Singapore Convention is to our to our industry and to our clients.
DM: Right. And as I said I do have a LinkedIn presence, so I whenever I speak at a program, I try to post the event to encourage people to attend but also to let them know what happened afterwards.
NA: Yes absolutely. And people can find you on LinkedIn. They can find you. I still will link to your LinkedIn and I’ll link to your website so that people can find more information about you, your practice, and in particular these new regulations that we hope are adopted globally.
DM: Fantastic. All right. Great talking to you Natalie and I hope people who see this find it beneficial. Thank you for the time.
NA: You are most welcome – it is always a great pleasure to talk to you. I just love how passionate you are about what we do and how we can do a better job for all of our clients. And I will contact you for another interview if you don’t mind, because I’ve got more questions for you on other topics.
DM: Fantastic. Talk to you soon.
NA: Bye bye. Thanks Deb.