GPSolo Magazine - July/August 2005
Offshoots of Practice
When asked to write on alternatives to the “classic” practice of law—such as serving as an adjunct professor, special master, mediator, or arbitrator—the first advice that jumped to mind was that, although these options are available, they will not really supplement income for most people. Only the most seasoned practitioners will be able to command more income by pursuing them. If your sole motivation in entering an offshoot of legal practice is to earn more money, your time would be better spent in putting more effort into marketing your practice and obtaining more clients. Learning something new requires time away from current work and frequently involves formal training, additional marketing efforts, and a long lead time before any work materializes. You will go from being someone who is established in a field to being a newcomer, with all of the frustration that the label implies.
Finding a Niche
If you do decide to pursue one of the areas described above, the most important first step is finding a niche. Being known as a “specialist” provides a huge advantage in these fields. The greater your reputation and experience in a given field, the shorter the path to becoming established. For example, an environmental litigator with a focus on Superfund issues is going to have an easier time establishing himself as an arbitrator in that field. Well-known divorce attorneys find it less difficult to attract divorce mediation clients. A non-profit lawyer may be able to find a part-time position teaching nonprofit law. A patent attorney may serve as a special master in a technical case. You must differentiate yourself from the field and create a demand for your services.
Start with what you know and draw upon all of your experience and contacts in the community. This may be the time to redefine your legal practice as well as make the foray into another domain. Be creative and consider all of your interests in and outside of the law. One of the lawyers on the ABA’s Solosez listserve concentrates on issues surrounding the teaching and practicing of karate. My partner worked for a firm that focused on construction law and had a nationwide reputation for its expertise in surety bond litigation. Another attorney turned her love of riding into a focus on equine law. You should be able to define what it is that makes you different from other attorneys and capitalize on that as you move into another realm.
Once you have found your niche, you need to decide which alternative to legal practice best suits this field, and whether training is required.
Teaching is a time-consuming, demanding job, and you really have to love it in order to pursue an adjunct position. Fortunately, you can test the waters by serving as a guest lecturer at a law school or offering to teach a course for a semester. In addition, teacher certification is not usually required for lawyers.
When solo business lawyer Lori Yarvis moved to Massachusetts from New York, she took an adjunct teaching position at a local law school. She says that teaching proved to be a great marketing tool and a way of establishing her practice in the Boston area. Yarvis believes that teaching a course “keeps you sharp” and current in your field of expertise. She also appreciated the flexible schedule. However, Yarvis agrees that it is not a great way to supplement income. The preparation time for lectures is enormous, and the pay is low.
Maria DeLuzio, a litigator, began teaching in a paralegal program because she was planning on developing a training business and wanted to have teaching credentials. She quickly discovered that teaching was incredibly satisfying, but again, a huge amount of work. In fact, she has heard that one has to teach a course three times in order to have all the preparation time pay off. Still, her experience proved worthwhile in marketing her business of instructing new associates in how to deal with the realities of a litigation practice. (She now also provides sexual harassment training to businesses and municipalities.) “Teaching gives me an enormous sense of competence,” DeLuzio says. “It has also enabled me to redefine my law practice and develop my own business.”
Becoming a Special Master
A special master is appointed by the courts, and there is no specific training required for this position, either. This is another area in which one can “dip one’s toe” before making a major commitment. Special masters are usually retired judges or attorneys with extensive litigation experience, sometimes in specialized areas such as environmental or technology law. They are usually used in complicated or highly contentious cases to rule on discovery disputes. Judge Thayer Fremont-Smith is a big fan of special masters in large, complicated cases. He believes that having someone designated to handle discovery issues facilitates the flow of litigation. That person can be on call during depositions and can make immediate rulings on discovery motions, thereby preventing everything from grinding to a halt while issues are settled. The special master can even allow for the filings of briefs regarding complex issues.
The courts maintain lists of special masters, but the judge or the parties also can suggest them. Once the choice of special master is agreed upon, the parties may draft a consent decree that is signed by the judge, stating that the cost of the special master will be shared and that all rulings will be final. Conversely, they can provide for an appeal to the court, but this would somewhat impede the purpose of appointing a special master in the first place. In the superior courts in Massachusetts, the current rule is that special masters are paid at the rate of $50 per hour, but in other instances they are paid at the rate allowed by the court. Work in this area is limited and infrequent in most courts. It can serve as a bonus for those with litigation or alternative dispute resolution practices, but it is not realistic to think that you can significantly supplement your income by pursuing this kind of work.
Alternative Dispute Resolution
In the field of alternative dispute resolution (ADR), the first thing to consider is which type of practice interests you. ADR practitioners come in different guises these days—arbitrator, mediator, facilitator, conciliator, and even collaborative lawyer. Each has its own “spin,” and not all are suited to every practitioner. Collaborative law is a relatively new field in which advocates agree to work cooperatively without resorting to litigation. Facilitation involves trying to resolve disputes with the aid of a neutral facilitator who helps move the discussion along. A facilitator frequently works with a group. A conciliator is generally associated with a court program and will help parties try to settle a case.
Mediators act as third-party neutrals as well, but their goal is to try to help the parties reach an agreement that is generated by the participants’ efforts. The mediator does not impose his or her own solution but helps to generate options to move toward resolution. In mediation/arbitration, the process starts out as a mediation, but if a settlement cannot be worked out, the mediator switches hats and becomes an arbitrator. The arbitrator acts as a private judge and makes a ruling regarding the case. Arbitration can be binding or non-binding, and frequently there is a limited basis for appeal.
A little soul-searching is in order when thinking about an ADR practice. Law school trains us to work as advocates for our clients. Some of us are more confrontational than others, but the ethical rules demand that we zealously represent our clients. Making the transition to ADR requires a transition in mindset. Some attorneys find it easier to look at both sides of an issue and maintain a neutral stance. Others form opinions and prefer sitting in the decision-making position. Neither personality is better than the other. It is important, however, to recognize your strengths and pick an area of dispute resolution that is suitable.
Mediation training. After choosing an area of ADR to pursue, it is necessary to seek out the appropriate training. In Massachusetts, there is still no certification required for mediators or arbitrators unless they participate in court-connected dispute resolution. It is hard to believe that anyone can hang out a shingle as a mediator without credentials, but that is the current situation. Any practitioner worth his or her salt, however, is going to seek out the best training possible. In most states community mediation programs offer the best training. State mediation associations or the Association for Conflict Resolution ( www.acrnet.org) frequently have lists of available programs.
The most important feature of any training is the opportunity to acquire mediation experience once the training is completed. The best mediation training comes from court-connected programs (usually small claims court), and most programs will not place you on their panels if you have not trained with them. To avoid this Catch-22, you need to inquire whether the training in a court-connected program comes with a guaranteed internship in the courts. Is there a formalized program involved in the internship? Does it cost extra? Also make sure that the training offers the requisite number of hours required by your state statute. Massachusetts has adopted the Uniform Rules on Dispute Resolution requiring more than 30 hours of training in order to participate in court-sponsored programs. In most programs, new mediators start out by observing a number of mediation sessions. They are then given the opportunity to co-mediate with a more experienced neutral. Finally, they mediate on their own while being observed.
Once the training is completed, the next step is to attempt to join mediation panels. Ideally, your training program will offer you a place on its roster, and that is a great place to start. The federal district court in your state may also have a mediation program. Other entities that have mediation panels include state government, the United States Post Office, and the National Association of Securities Dealers ( www.nasd.com). Mediation panels are generally quite restrictive and are frequently closed for long periods of time. It requires persistence and patience to be listed on panels.
Arbitration training. Arbitration training is given by agencies that offer arbitration services. Probably the best-known arbitration organization is the American Arbitration Association (AAA; www.adr.org). If you have the kind of background and experience that AAA finds attractive and are lucky enough to be selected for its panel, AAA provides excellent training in the arbitration process. The National Association of Securities Dealers also has an arbitration program and requires participation in their training. It takes a long time to develop either a mediation or arbitration practice, and one should expect that it might be quite some time before receiving that first case.
Marketing your ADR practice. Once you acquire the credentials, it’s time to think about marketing. As in marketing any business, it is best to start with what you know. Although there are people who study ADR and go directly into the business, they are few and far between. Most solos or small firm practitioners already have some areas of expertise and an established clientele. The ADR practice should be a natural outgrowth of these areas. Employment lawyers should consider employment mediation and look into agencies that deal with employment issues (in Massachusetts, there is mediation at the Massachusetts Commission Against Discrimination). Labor mediators or arbitrators can affiliate with government agencies that handle labor disputes. Construction lawyers are frequently used as arbitrators and mediators. Personal injury attorneys engage in mediation as well. The rule is, start with what you know, and let everyone you know become aware of the fact that you are now an arbitrator and/or mediator.
Another way to attract clients is to join private mediation/arbitration panels. The biggest alternative dispute resolution companies are the American Arbitration Association and JAMS (www.jamsadr.com). “Panelists come to JAMS in a variety of ways,” says Steve Price, JAMS president and CEO. “Many times mediators and arbitrators are familiar with JAMS because their colleagues from the bench or bar are with JAMS. Each of our neutrals brings considerable dispute resolution experience to JAMS when he or she joins the organization.”
There are also a number of smaller panels out there. One example of an alternative dispute resolution company in Massachusetts is ADR/EQUIMAR (www.adr-equimar.com). “We choose our panelists by looking at their background and making sure that they have done both plaintiff and defense work,” says Brian King, a case manager for ADR/EQUIMAR. “We also listen very carefully to our clients’ suggestions about whom they have used in the past.”
Being placed on a panel is just the beginning of the process, however. You still have to market yourself in order to receive cases. The best marketing is usually networking with other attorneys. They understand ADR and its role in and outside the litigation process. Writing an article for a legal journal or newspaper, giving a CLE, or speaking at a bar association meeting are all excellent ways to gain recognition as a mediator and/or arbitrator.
What about the lay public? In my experience, a talk or article about “mediation” or “alternative forms of dispute resolution” does not attract a large audience. It is far better to speak about a substantive subject, such as “how to resolve a neighbor dispute,” “dealing with home contractors,” “what to do when the dry cleaner ruins your favorite outfit,” or “what landlords need to know,” and include information about ADR as part of your talk. For most people, their introduction to ADR occurs as a result of making contact with an attorney about a specific problem.
If all goes well, those mediation and/or arbitration cases will now start coming in. How should you charge for these services? Typically, parties split the cost of an ADR professional. This is not always the case, however; sometimes mediation or arbitration clauses in contracts make these processes mandatory, and the “contractor” will pay for all the costs (as the “contractee” has no choice in the matter).
It is an excellent idea to observe as many other mediators and arbitrators as you can. It will help you develop your style and determine what makes for a skilled practitioner. Getting involved in ADR organizations and reading journals also help to improve skills and keep you in touch with the profession. Expecting referrals through these ADR networks is generally not very successful, however. Most programs work quite hard just to sustain themselves. Overflow cases are not common, and people tend not to give cases away. Given the fact that many organizations make most of their money through training, in certain states there are many more ADR professionals than there is work to support them.
Redefining one’s law practice by expanding into areas outside of classic legal practice can have unforeseen benefits. Expanding your universe can prevent professional dissatisfaction, enlarge your perspective, and make you a better lawyer. Teaching sharpens your knowledge of a given field and keeps you current. It may also lay the foundation for developing new businesses. Working as a special master enables you to see litigation from a different perspective that may lead to other “judicial-type” jobs.
The process can take quite a long time unless you have a pre-established client base, however, so it is necessary to start the journey with open eyes. If you decide to take the plunge into a new field, network with other lawyers and make sure you tell everyone you know about your new practice. Finally, determine how your practice will be divided between your chosen specialty and legal advocacy, and use the new skills that you have attained in both areas of your practice.
Andrea Goldman is a partner in the law firm of Gately & Goldman, LLP, in Newton, Massachusetts. She focuses on construction/contractor, business, and consumer disputes as well as mediation and arbitration. She can be reached at firstname.lastname@example.org.