Interview with Dana MacGrath following the launch of her new arbitration project
We interviewed Dana MacGrath, President of the ArbitralWomen platform, Council Member of the International Dispute Resolution Center AAA-ICDR, about the launch of her own solo arbitration project: MacGrath Arbitration. We spoke with her about technology in arbitration, entrepreneurship during the pandemic and the role of women
1. Why did you decide to go solo to serve as a full-time independent arbitrator and launch MacGrath Arbitration?
I have been deeply involved in international arbitration for more than two decades, during which I acquired a unique mix of experience as an arbitration practitioner at international firms, as in-house counsel at a third-party finance company, and as arbitrator. Wanting to focus on my international arbitrator practice exclusively, independent of any firm and free of conflicts, I launched MacGrath Arbitration in August 2021.
Prior to launching MacGrath Arbitration, I worked in-house as an investment manager and legal counsel at Omni Bridgeway, as partner in the international arbitration group at Sidley Austin, and in the international arbitration practice groups at Allen & Overy and O’Melveny & Myers, having started my career at Sullivan & Cromwell. My arbitration matters have involved a variety of global industries, among them oil and gas, LNG, energy, construction, finance, telecommunications, intellectual property, construction, sale of goods, and international investments. This diverse mix of experience inspired me to launch my solo practice as a full-time arbitrator.
I currently serve on the AAA-ICDR Council and co-chair the AAA-ICDR Large Complex Case Committee. Previously I chaired the New York City Bar Arbitration Committee and co-chaired the CPR Institute Arbitration Rules Revision Committee. I have served on several Task Forces of the ICC Commission on Arbitration and ADR. I was honored to have the opportunity to take on these roles in the arbitration community and I believe it is important to not only work across different industry sectors, but also to work with various arbitral institutions and colleagues in the field to improve the arbitration process.
As arbitrator, I strive to continue bringing new, fresh solutions to high stakes international arbitration disputes and paving the way forward for the next generation of arbitrators. I hope to be an example for younger practitioners, particularly women, to demonstrate that if you have the passion to serve as an independent arbitrator combined with the requisite experience and skillset, you can be successful as a full-time independent arbitrator before the traditional law firm retirement age. This goal also inspired me to join the Advisory Board of the Rising Arbitrators Initiative, which supports the next generation of arbitrators.
2. What difficulties and challenges are you encountering in launching your full-time arbitrator practice in the midst of a pandemic?
I have found that the pandemic has been a door-opener rather than an obstacle, as the arbitration field quickly pivoted to virtual meetings, hearings, and conferences. While some courts around the world may be backlogged with cases due to the pandemic, the arbitration community adapted quickly. This was one reason I was inspired to launch my independent arbitrator practice now.
It was the right time to launch my independent arbitrator practice notwithstanding the pandemic because those who practice arbitration and clients who choose arbitration have embraced the virtual world. Moreover, clients and counsel have confidence their disputes are moving forward in a time and cost-efficient manner. The arbitration community has found a way to efficiently afford parties a full and fair opportunity to present their case, be it through purely virtual platform or hybrid platform. It’s really an exciting time to explore the optionality of arbitration.
One obvious downside to launching a full-time arbitrator practice in a pandemic is that you cannot network at in-person conferences and committee meetings. However, perhaps because of my experience as President leading ArbitralWomen, I have learned how valuable it is to network in the virtual world and stay connected even in the face of lockdowns and travel limitations. I have seen many successful initiatives launch in the diversity space of arbitration during the pandemic, including one I helped to launch, Racial Equality for Arbitration Lawyers in January 2021.
3. What qualities do you need to properly manage an arbitration and be a successful full-time independent arbitrator?
Arbitrators are responsible for running an efficient hearing and affording the parties a full and fair opportunity to present their case, while respecting party autonomy. The ability to effectively manage an arbitration comes from extensive experience in the field with many kinds of arbitrations, parties, and claims. That experience can be gained by serving as counsel in arbitrations as well as arbitrator or working in-house. In my case, I gained that experience in all three roles.
In any given arbitration, it is important to try to understand the parties’ expectations about the arbitration process as early as possible. Where the parties are not in agreement about that process, it is key that the arbitrator provide a process consistent with any rules and law selected in the agreement, ensuring all parties fair treatment which culminates in an enforceable award.
Interpersonal skills are also an important quality for an arbitrator. The dynamics among members of an arbitral tribunal impact the arbitration process. Where the members of the arbitral tribunal can work together collegially to discuss the issues in the case, it may be more likely to lead to a unanimous, well-reasoned award. Also, members of an arbitral tribunal who are willing to be proactive about maximizing the efficiency of their work together can lead to quicker resolution of procedural issues and rendering of the award. It is useful for parties and counsel to take into consideration the personality and experience of arbitrator candidates to create balance and positive dynamics within the tribunal. Consider also that an arbitrator who has demonstrated an ability to work well with people through contributing to various arbitration organizations and committees likely has the personal qualities to contribute to a positive collegial working dynamic on an arbitral tribunal.
4. Do technology and arbitration go hand in hand?
Even before the pandemic, technology was increasingly used in arbitration, both for the submissions and arbitration procedural steps before the merits hearing as well as at the merits hearing of a dispute. The use of technology use has increased substantially since the pandemic, with procedural conferences and hearings held on a variety of virtual platforms. It is important for arbitrators to be able to toggle between different platforms, receive materials electronically, and work with the most modern systems. This intersects with the increasing number of younger arbitrators starting to serve on tribunals.
Arbitration organizations and hearing centers support this effort by offering state-of-the-art technology for hearings that can be held entirely virtually or in a hybrid format. Arbitrators who understand the technology are better positioned to make decisions on how the procedure will go forward if the parties cannot reach agreement.
The increasing role of technology in arbitration also benefits the effort to make arbitration more environmentally friendly, a mission championed by the Campaign for Greener Arbitrations. As member of the recently launched North America Sub-Committee, I am helping to organize a global virtual conference on “Shaping the Future of Greener International Arbitration Conferences and Training” in October 2021 to discuss how to maximize what arbitration event organizers have learned about best technology practices.
5. Has the role of women in international arbitration improved?
As President of ArbitralWomen, I am pleased to say that the number of women serving as arbitrators has increased in the past decade, although there is much more work to do before we approach anything close to gender parity for arbitrator appointments. I commend the arbitral institutions for taking important, positive steps to increase the number of women appointed as arbitrators. At the same time, organizations like ArbitralWomen and the Equal Representation in Arbitration Pledge (Arbitration Pledge) of which I am a Steering Committee member, have similarly increased the visibility of well-qualified women to serve as arbitrators. Slowly but surely, we also are seeing an incremental increase in the role of women as testifying experts in arbitrations as well as serving as first-chair for arbitration counsel teams and as presiding arbitrators.
The more that organizations like ArbitralWomen and the Arbitration Pledge can showcase experienced women in arbitration who are excellent choices as arbitrator and for other roles in the field of arbitration, the more progress we are likely to see.
Reaching out to the “users” of arbitration – clients of law firms and the parties in arbitrations – to let them know about the well-qualified women in arbitration is also important. Recently, I worked within the corporate counsel sub-committee of the Arbitration Pledge to issue Corporate Guidelines suggesting ways for companies to implement the Arbitration Pledge. As clients increasingly seek diverse counsel teams, we hope they will similarly seek diverse tribunals.
I am optimistic that we will continue to see progress for women in arbitration and in time, an overall increase of diversity (and intersectional diversity) in arbitration.