The rise and the role of mentoring programs in the arbitration career

Pedro Guilhardi[1]

Giovanna Borges[2]


Introduction


A career in arbitration is one of the most challenging tasks to pursue as a lawyer. This is partly due to the sensitivity of the interests involved in each dispute and/or to the level of complexity of the legal problems to be adjudicated. If thriving in arbitration is hard for an experienced lawyer, it is even harder to those who are still coming: the graduates.


This brief discusses the benefits of mentoring programs in general and in the arbitration career, focusing on the connection established between an experienced lawyer, as a mentor, and a newcomer, as a mentee.


The text itself was written based on personal experiences in arbitration mentoring programs, having the authors established a mentor-mentee relationship themselves. We can, thus, testify that the words that follow represent a sincere portrait of how mentoring programs can benefit professionals and students in the arbitration career.


1. Benefits of mentoring programs in general


Thammy D. Allen, Elizabeth Lentz and Rachel Day, in a paper entitled “Career success outcomes associated with mentoring others. A comparison of mentors and nonmentors”[3], reported a research conducted at a health care organization located in the southeastern United States. The participants were asked a series of questions related to the mentoring experience and its relation to job satisfaction, promotions, and current salary. The results suggested that mentoring others generated feelings of self-satisfaction and accomplishment. Furthermore, mentoring was also a factor that increases salary, promotion rate, and subjective career success.


How about the mentee? Are there any benefits of being mentored? Sure, there are.


Brian Hansford and Lisa C. Ehrich, scholars from the Faculty of Education, Queensland University of Technology, in a paper entitled "The principalship: how significant is mentoring?"[4], presented an interesting quantitative result. The research targeted 40 papers about mentoring and showed, for example, that 31 of these studies reported positive outcomes to the mentees. And inside of these 31, 18 studies “identified the receiving of support, empathy and counselling as a beneficial outcome arising as a consequence of participating in a mentoring program”. Other benefits reported by mentees are the boost of confidence, professional development and the opportunity to engage in problem solving and networking.


2. Mentoring programs in the arbitration career


For a graduate or young lawyer who pursues a career in arbitration, it is expected that a successfully conducted mentorship will provide the means and tools to succeed. Mentees have an early opportunity to acquire and/or improve abilities that are necessary to succeed as an arbitration practitioner. Further, the mentee will have someone – the mentor – to resource to when new challenges arise – even if the mentorship program is formally finished. Once a balanced relationship is built between the mentor and the mentee, it is likely that this symbiose between them will last for over many years.


Not by a chance, mentoring programs that are focused on the arbitration career have gained room in the arbitral community. There are different types of mentorships, leading to different experiences and results.


  • Institutional and ad-hoc

Although there are various ways in which a mentoring relationship develops, they may – and in most cases should – rely on a tailor-made methodology that fits both the mentor’s and the mentee’s needs. There is no standard formula or a correct evaluation system for mentorship. A mentorship program may well be established on an ad-hoc basis, through professional or academic relationships that are naturally formed over one’s journey, without the support and structure of an institution.


Institutional programs, on the other hand, exist in various shapes and forms. For instance, the program promoted by Young ITA is a long-term and group experience conducted in accordance with the wishes of the mentee. Topics that the program encourage to discuss are, inter alia, career development, academic opportunities, recent developments in international arbitration etc. ITA decided to launch its mentoring program in arbitration because it understands that its benefits are “(…) integral to career success” and that the “greatest achievements are never accomplished alone[5].


When the mentor and the mentee do not intend to have such a long-term experience, the program developed by the CIArb Brazil Branch is shorter. It has been launched in May, 2021 and it is a short-term experience conducted individually – one mentor assigned for each mentee. It is a flexible experience, as the mentor and the mentee have the freedom to decide what will be the outcomes of the mentorship. It may vary from a co-authored article to the organization of an event.


In contrast to the ad hoc mentoring, where the relationship is naturally formed based on the will and alignment of character of both mentor and mentees, a mentoring program organized by an Institution requires more account of management and governance, as it is up to the Institution to decide who will form the duo. Both mentor and mentee involved at the experience may have different expectations and it is up to the Institution to manage the profiles and the rules of the program with the aim that the experience is successful for both sides – the mentor and the mentee.


The Institution promoting the program acts since early. First, it is responsible to publicize the event and to chase the mentors. At the same time, it shall coordinate the selection process of mentees. After that, the Institution must match the profiles of the mentor and the mentee. This is a crucial task because it may be easier to establish a meaningful connection if there are potential similarities regarding the mentor’s career and the mentee’s professional aims. These conclusions can be based on their résumés, Cover Letter and/or LinkedIn profiles, for instance. Interviews may also play an important role on profile matching.


Another example of how the Institution may regulate the program is to offer all participants directives concerning do’s and don’ts for a fluid experience. For instance, it may direct that the mentors are not allowed to demand from the mentees’ personal tasks unrelated to the mentorship program. It may also recommend that reports are made or that the mentorship program result in an article, etc.


  • A quick note on impartiality and independence of arbitrators and mentoring

What if mentor and mentee are involved in an arbitration? There are many ways in which mentor and mentee may cross their paths in a dispute: as counsel and counsel; counsel and arbitrator, party representative and arbitrator etc.


But let us for a moment focus on the situation where the mentor is chairing a panel where the counsel’s team for one side is composed by the mentee. Are there grounds to reasonable doubts at the eyes of the opposed party about the impartiality and independence of this arbitrator, who also happens to be the mentor of one of the counterparty’s counsels? Is there a duty by this arbitrator to disclose such relationship?


This is one single example of how the mentoring program may potentially affect both the duty to disclose and the impartiality and independence of arbitrators. This text is not intended to answer these questions, but to demonstrate the importance that the players involved in the mentorship program (Institution, mentor, and mentee) bear in mind aspects of impartiality and independence of the arbitrator, as the mentorship program may imply a duty to disclose and, in extreme circumstances, even taint the impartiality and independence of an arbitrator.


  • Other benefits of arbitration-related mentoring programs

New horizons with international or delocalized monitoring programs. The outbreak of the COVID-19 around the globe has increased the use of online tools for meetings and, namely in the arbitration disputes, virtual hearings have been in most cases successfully carried out. Similarly, a mentoring program can be developed remotely, meaning that mentor and mentee do not have to necessarily be involved in the same environment when it comes to arbitration practice. For instance, at the global level, mentor and mentees may be based in different jurisdictions, while at the regional level, both mentor and mentee may be based in different regions of a given country. As a result, it may open doors for international and/or delocalized mentoring experiences which might help to bring new horizons for both the mentor and the mentee, while it may also be a vehicle to facilitate inclusion by aiding students and/or professionals who would not otherwise have the chance to participate in a mentoring program.


Technical communication. Mentoring programs offered by Institutions in the career of arbitration involves mentor and mentee who are technical (or aspirant to be in the case of a graduate student) in the same general field – Law – and very likely the mentee will also be familiar with most general concepts of arbitration law. This is very convenient to the program, because it facilitates communication between mentor and mentee, since they establish technical and precise communication, and the mentor already knows the difficulties of the career and how to overcome that.


Gender equality. Measures to ensure gender equality in the field of arbitration are well known to most of the readers of this Blog. (See, e.g., efforts promoted by the ICC over the past years after it signed an Equal Representation in Arbitration Pledge, calling for enhanced diversity in international arbitration). Such goal may well be performed be means of mentoring programs, focus on gender equality and on promoting the participation of females in the arbitration practice. In fact, the organization “Women in Arbitration” organizes mentorship program for Young Female Arbitration Practitioners by remote communication to inspire these women to lead in the field and to give visibility to them[6].


3. Conclusion


The point is: no matter how the mentoring program is conducted or the focus it gives, it must be significant, for both mentor and mentee. It must be more than something to list at their résumé; it should create results at their day to day at the office.


Back from the start. Mentoring programs benefit mentors and mentees. When we look at the arbitration career, because of its peculiarities and challenges, a mentoring program may make the difference. It establishes a technical and precise communication between the participants, thus boosting the expected outcomes. Mentorship programs may also be a means to reach other goals strived by the arbitral community, such as inclusion and gender equality.


[1] FCIArb, LL.M in Comparative and International Dispute Resolution at Queen Mary, University of London. Master in Commercial Law at Pontifical Catholic University of São Paulo and PhD Candidate in Commercial Law at the same Institution. Partner at Nanni Advogados. (pguilhardi@nanni.adv.br). [2] Graduate in Law at University of São Paulo. Member of Team USP to the XI and XII Eds. of Brazilian Arbitration Competition. Associate Student Member at CIArb. (giovannacontatobr@gmail.com). [3] ALLEN, Tammy D. DAY, Elizabeth Lentz. Career success outcomes associated with mentoring others. A comparison of mentors and nonmentors”. v. 32, n. 3. Missouri: Journal of Career Development, jan. 2006, pp.272-285. [4] HANSFORD, Brian Hansford. EHRICH, Lisa, “The principalship: how significant is mentoring?". v.44, n. 1. Journal of Educational Administration, Queensland, 2006, pp.36-52. [5] Available at <www.cailaw.org/Institute-for-Transnational-Arbitration/Young-ITA/index.html> Access on 08.02.2021. [6] Available at <https://www.arbitralwomen.org/mentorship/> Access on 29.08.2021.

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