Volume 2, Number 1
|Table of Contents|
How To Market An Alternative Dispute Resolution Practice
When I attended my first mediation training, in 1996, the session began with an ominous message, “Don’t quit your day job!” Although in many ways, the message presented was accurate, it is possible for a small firm or solo practitioner to make a foray into the world of ADR and develop an additional practice area, or even switch over entirely.
The first thing to contemplate when thinking about ADR is which type of practice interests you. There are many titles out there these days, including arbitrator, mediator, facilitator, conciliator, and even collaborative lawyer. Each of these positions has its own “spin,” and not all are suited to every practitioner.
A little soul-searching is in order when considering about an alternative dispute resolution 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 one’s strengths and choose an area of dispute resolution that is suitable.
After choosing an area of alternative dispute resolution 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. Any practitioner worth his salt however, is going to seek out the best training possible. In most states, for mediation, community mediation programs offer the best training. State mediation associations or the Association for Conflict Resolution ( http://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 reason for this is that 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,” it is therefore imperative to find out if one is guaranteed an internship of some sort in the courts. In addition, it is important to ask if there is a formalized program involved in the internship, and if it costs extra. One should also make sure that the training offers the requisite number of hours as required by your state statute
Once the training is completed, the next step is to attempt to join mediation panels. Your training program will hopefully offer you a place on their 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. 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 trainings are given by agencies that offer arbitration services. Probably the best-known arbitration organization is the American Arbitration Association. If one is lucky enough to have the kind of background and experience that AAA finds attractive, they provide 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.
Once the credentials are acquired, it is time to think about how to market your ADR practice. As with 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 solo 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. 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 that 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 ( www.adr.org) and JAMS ( www.jamsadr.com), but there are also a number of smaller panels out there. Being placed on a panel is just the beginning of the process, however. One still has to market oneself 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,” 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 problem, and consequently, they become involved in mediation or arbitration.
Hopefully, with the training period completed, all that hard work at marketing will start to pay off, and those mediation and/or arbitration cases will start coming in. It is an excellent idea to observe as many other mediators and arbitrators as one can. It will help you develop your “style” and determine what makes for a skilled mediator. Getting involved in ADR organizations and reading journals also helps to improve skills and keeps one in touch with the profession. Expecting referrals through these ADR networks is generally not very successful, however. Most programs are working quite hard just to sustain themselves.
Marketing an alternative dispute resolution practice can work if one maintains realistic expectations and goes about it the right way. The process can take quite a long time unless one has a pre-established client base, so it is necessary to start the journey with one’s eyes open. Get proper training, seize every available opportunity to practice your newfound skills, and try to be placed on panels. Once you “know the ropes,” try to market in your area of expertise and experience. Network with other lawyers, and make sure you tell everyone you know about your new practice. Do not try to market to other ADR professionals; it is usually just a frustrating exercise. Observe other mediators and arbitrators so you can develop your style and keep improving your skills. Finally, determine how your practice will be divided between alternative dispute resolution and legal advocacy and use the new skills that you have attained in both areas of your practice.