General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 7
Setting Up a Mediation Practice
By Roy Nelson
In 1997, after the conclusion of several long-running, particularly contentious litigation matters, I felt the need to do something more meaningful for myself, and better for my clients, than litigation. No longer, I thought, would I be a stressed-out trial gladiator. I was going to begin a new life as a full-time mediator, helping litigants and their lawyers get cases settled before too much damage was done by the litigation process.
Almost four years down the road, however, I still generate 90 percent of my income as a litigation attorney and only 10 percent as a mediator and arbitrator (although the percentage of mediation/arbitration work is slowly growing). What went wrong? Why didn’t my mediation practice take off like others I had heard about? What have I learned in the past four years about the transition from litigator to mediator?
Don’t Quit Your Day Job
The best advice I received when I was newly excited about leaving the cold, hard world of litigation for the kinder, gentler world of mediation was, "Don’t quit your day job." A friend who had already left a law practice for a mediation/arbitration practice explained that unless you happen to be a retired judge or a distinguished retired lawyer, starting a mediation practice is a long-term, slow-growth process. You need to work hard to build a reputation as a mediator in a marketplace that heavily favors former judges and retired lawyers. I was actually told when I first opened my mediation practice several years ago that I didn’t have enough grey hair to be a mediator. Although I didn’t believe it at the time, it has proven to be true. Older, grey-haired mediators really do seem to be more successful than those in their forties.
Another factor to consider is that many of the former judges and retired lawyers doing mediation don’t have to make a living doing it. Many have pensions to live on and, in many instances, no office overhead. They are doing mediation as a way to pick up some extra income and stay busy in retirement. As a result, they may be able to charge a lower rate than a younger mediator who cannot yet access retirement accounts, and who has an office, a secretary, and kids in school. Yet another factor is the penchant of local bar associations to "give away," as part of their pro bono obligation, free mediation by volunteer lawyers.
This is not to say that there is no mediation work out there at a living wage. Just don’t count on there being a lot of it as you make your transition. Time and success in the market will slowly build your reputation as a mediator and, in turn, your mediation practice.
Get Some Good Training
Because I understand the legal process and had represented clients in mediation, I assumed that I also knew how to mediate. This mistaken assumption on my part led to some early failures. After several mediations that did not end in settlement, I came to realize that the skills that made me a good litigator were quite different from the skills I needed to acquire to become a good mediator. Retooling with new mediator skills and honing those skills became a must! After all, clients who mediate do so because they want to get their case settled. If they spend a half day in mediation without getting a settlement or at least making substantial progress toward settlement, they are not likely to come back or to recommend you to others.
Do not be so confident in your perceived ability to mediate that you fail to get good training. And get the training before you start mediating, because first impressions are important to your success as a mediator. Early successes (i.e., settlements) are key to creating future mediation business. Conversely, early failures may create the impression that you are ineffective. No matter how effective you become as you gain experience, that initial impression may be difficult to overcome.
My recommendation is that all prospective mediators get at least 40 hours of training with role-play practice. Nationally recognized trainers regularly conduct workshops around the country and advertise frequently in the Journal of the Academy of Family Mediators. Information about training can also be found online; for example, at www.mediate.com. There may also be programs and classes in mediation available through nearby colleges, law schools, or your state bar.
Again, the need for training may not apply to former judges and retired lawyers; litigants and lawyers may hold them in such high regard that they defer to their judgment. For the rest of us, though, learning good mediation skills is critical.
Get the Word Out
Be prepared to spend a significant amount of time and money on advertising, networking, mailing brochures, setting up a website, getting on mediation rosters, writing articles for publication, speaking at seminars, presenting programs, and doing anything else you can think of to let lawyers and the public know that you are available for mediation. But don’t stop there. Unless you intend to mediate only accident and injury cases (an area dominated by former judges and retired lawyers), where insurance companies and lawyers already recognize the benefits of mediation, you also may have to educate your potential market, both lawyers and the public, as to what mediation is and how it can help them.
For example, I have met with resistance to the idea of mediating business and intellectual property disputes, two of my areas of practice. In trying to figure out why people were reluctant to try a process that is faster and less expensive than traditional litigation, and that gives them more control over the resolution than traditional litigation, I learned a few important things. First, many people (and many lawyers) do not know that mediation is different from arbitration. They mistakenly believe that the mediator will decide their case for them, and they may not want to forfeit rights they have in the courts for a private procedure that they believe may foreclose their right of appeal. Second, the overall mindset in our society is not to work together to solve disputes, but rather to stand on our legal rights and take people to court to enforce those rights.
Attempting to change these two perceptions has consumed a great deal of my time and effort during the past several years. Progress has been made, but it has been and continues to be an uphill battle. So don’t assume that everyone knows what mediation is, or that people will beat a path to your door seeking your help. Unless you are a former judge or retired lawyer intending to practice only in areas where mediation is already known, accepted, and in demand (such as accident and injury cases), you will need to spend time and energy developing and educating your target market.
Another practice area for mediation that for me has required substantial work to develop (and substantial training to do well) is divorce mediation. Although it is far better for the parties and their children than a court battle in terms of both dollar and emotional costs, people who are divorcing are often not ready to agree on even minor matters, let alone agree to mediate their divorce. Fortunately, as time goes by, courts are ordering more divorces into mediation. This has given divorcing people and their lawyers incentive to mediate financial and parenting issues early and has provided real opportunities for effective, well-trained divorce mediators.
Various organizations maintain rosters of mediators, including the National Association of Securities Dealers, the World Intellectual Property Law Organization, the American Intellectual Property Law Association, the U.S. Postal Service, the American Arbitration Association, JAMS/Endispute, the Internet Corporation for Assigned Names and Numbers, state and local bar associations, many U.S. government agencies, some U.S. courts of appeals, and some local courts.
The requirements for becoming listed on mediation rosters vary. None of the rosters guarantees you case assignments. Anything you can do, however, to increase your exposure in the market improves your stature and your chances of being chosen as a mediator. Getting on local court mediation rosters may be particularly useful, because then judges become aware that you mediate and may assign you cases when the parties cannot agree on a mediator, particularly if you have a track record of successfully mediating settlements.
Partner with Other Mediators
You may find it helpful to affiliate with other mediators, either formally or informally. I hooked up with several other mediators to form a joint practice and marketing group. We share office overhead and advertising and marketing expenses, collaborate on educational presentations, and refer cases within the group. None of us is currently making a living as a full-time mediator, but the amount of mediation work is increasing.
Joining and becoming active in mediation organizations can be a good way to build your reputation as a mediator and obtain information about training and marketing. Such organizations include the Academy of Family Mediators, the Society of Professionals in Dispute Resolution, the ABA Section of Dispute Resolution, or your state or local bar association.
Roy Nelson is an attorney, mediator, arbitrator, and Christian conciliator in Milwaukee. He is a shareholder, officer, and director in the law firm of Petrie & Stocking, S.C.; a cofounder, director, and shareholder of Conflict Resolution Services, Inc.; and executive director of the Conflict Management Education Project, Inc.