Developing and Promoting a Successful Alternative Dispute Resolution Practice

Introduction

In this article, we share some suggestions on how to develop and promote a successful Alternative Dispute Resolution (ADR) neutrals practice based on our diverse experiences in arbitration and mediation. All the co-authors have traveled different paths, illustrating that no one-size-fits-all approach exists.

Marketing and Branding Strategies for A Successful ADR Practice

Every discussion about marketing and branding begins with knowing your audience. Dispute resolution neutrals are professionals whose services must be agreed upon by no fewer than two disputing parties. Because parties’ wants and needs are different in every case, no one neutral is right for every case. As we highlight below, one tip for effectively building a neutrals practice is to promote yourself as an experienced professional within a specialization. Focusing on that will help you exhibit the qualities you and your prospective referral source value most. So, consider: What do you want people to know about your experience and skillset when considering whether to hire you?

Personal Branding

There are two primary paths to personal branding. The first is your prior work and experience. The second is your current and future goals. Regardless, it is important to define your niche or brand to set yourself apart from other neutrals and to distinguish yourself for referral sources. A key step is to be authentic and self-aware of your unique skill sets.

Consider attempting to set yourself apart by highlighting your: (1) expertise in a niche area (e.g., employment, commercial, or personal injury); (2) familiarity with a specific industry (e.g,. energy or life sciences); or (3) procedural expertise in mediation or arbitration. These specializations may be interrelated and evolve over your career. Whatever the specialty, staying current on procedural and substantive developments within your areas of expertise is important since commercial developments and market changes can impact practice areas.

Once the focus of your practice is determined, it is important to promote your expertise by writing articles, accepting invitations to speak at conferences and committees of various organizations, and becoming a leader within industry organizations to the extent possible.

Marketing and Visibility

While it is important to stay top-of-mind within the sectors you wish to serve, no silver bullet guarantees success. The key is to adopt a disciplined, consistent, deliberate, and persistent strategy to marketing and branding your practice—both within the neutrals space and outside of it—to potential referral sources.

Developing a successful neutrals practice is challenging, so begin by marketing to people you know. Parties and attorneys who may respect your professionalism and style of advocacy from across the “v” are prospective referral sources for future engagements.

In addition to speaking engagements and publishing articles, social media is an effective and low-cost tool for networking and raising your profile as a thought-leader and influencer in a practice area. Through engaging posts and video-sharing, which can be repurposed across different social media platforms, your brand can be visible to multiple online audiences with very little effort. While it requires more effort and financial resources, offline marketing, such as sponsorships and attendance at events, allows your audience of potential referral sources not only to see your brand but also to interact with you. This remains a very effective way to network professionally and build a referral network.

Professional Networking

Actively engaging in the neutrals community through bar association committees and organizations and attending conferences are helpful for marketing and visibility. Choose events that are aligned with your areas of expertise or interest.

Join various sections of your state and local bar associations. If you want to mediate/arbitrate construction disputes, join a construction law section and attend their meetings. Invite those you know to join you for coffee or lunch. Attend bar events and get to know attorneys you haven’t met. Thereafter, follow-up with emails. You never know where you may find your next client or appointment as a neutral.

Staying abreast of cases that are pending at the courthouse is also a worthy investment of time. One of the audiences we serve is the judiciary, and letting judges know that you are available to assist the parties and lawyers can lead to judicial appointments. One author, Felicia Harris Hoss, periodically visits the courthouse to watch voir dire or observe dispositive motions hearings and, on more than one occasion, has been appointed to mediate disputes that were before the court on the day she was observing the docket.

Professional and Referral Relationships

Always be mindful that neutrals must be neutral, which means that some relationship development practices, such as absorbing the cost of expensive meals and sporting tickets for potential members of your network, are not appropriate.

For example, be mindful of how one might perceive a mediator’s neutrality if, for example, a mediator walked into a joint session at mediation and one side immediately jumped up and gave the mediator a hug. Maintaining an appropriate distance between oneself and referral sources can be difficult.

Ways to Stay Abreast of Current ADR Trends and Skills

Skill Development

One of the benefits of ADR for clients is that there is a diverse array of neutrals with different skills and knowledge. That said, it is important for a neutral to have a thorough understanding of the process. Mediators typically attend courses and join organizations that require continued education about mediation. Programs like the ABA Arbitration Institute, Advanced Mediation & Advocacy Skills Institute, and the International Arbitration Skills Masterclass help arbitrators and mediators master the processes and stay current on developments in the law.

Becoming a panel member of arbitral institutions and other organizations can provide appointment opportunities and access to reference materials and programs to increase one’s substantive knowledge and confidence in administering the arbitration or mediation process. It is important for an arbitrator to have the ability to manage a case efficiently and fairly, work well with co-arbitrators, and know how to write a good award—ideally one that will be easily enforced around the world. Therefore, it is helpful to have a deep knowledge of arbitration procedure and award enforcement or at least the grounds for non-enforcement of an award under the New York Convention.   

Technology

It is worthwhile to think about technology from the perspective of how it can help you improve your skills and effectiveness as a neutral, as well as how it can improve the overall client-experience.

Using Technology to Improve Your Work

The ADR community has proven to be innovative with respect to technology. Think back to the beginning of the pandemic. Most attorneys had never conducted an arbitration or mediation via Zoom. Now, it is widely accepted and preferred by some lawyers and parties.

Some mediators have incorporated AI into their practice, whether to assist in personal branding or marketing or for ideas to break a mediation impasse. However, AI brings confidentiality concerns. So, whether it is Zoom, AI, or the next big technological advancement, professional neutrals must be flexible and open to incorporating technology that helps deliver value to the parties while protecting confidentiality.

One of our authors, Steve Schulwolf, was the first volunteer mediator to conduct virtual mediation during the pandemic for a particular pro-bono community mediation center.

Using Technology to Improve Client Experience

Here are some examples of how a neutral can use technology to enhance the overall client experience:

• Online contact forms. Include a contact form on your website that links to your case management software so prospective referrals can easily submit a question or schedule a session.
• Automated reminders. After the arbitration or mediation has been booked and confirmed, schedule automated reminders for upcoming deadlines. These reminders can include relevant information, such as when and where to send payment, directions to the mediation or arbitration venue, or anything else logistically relevant and helpful. One of our authors, Felicia Harris Hoss, uses this system and includes a statement of her appreciation for the opportunity to assist the parties in resolving their dispute. That way, if counsel elects to forward the reminder to the client, the client receives a warm message from the mediator before the session.
• Invest in a case management system. It is important to keep track of information and to be able to recall it quickly. A case management system that stores contact information, case documents, notes from calls, and other materials can be important to a successful practice. Many case management products also provide a secure client portal through which clients can upload documents and from which documents and information can be downloaded. The portal makes it easier to stay organized.
• Electronic signature software. It is helpful to invest in an electronic system that allows you to gather signatures electronically from everyone in remote proceedings. Being adept at using technology signals to parties and counsel that you are a neutral who makes things easier for parties.

Administrative Issues for a Practitioner or ADR Adjudicator to Keep in Mind

While some of these administrative areas may seem intuitive, you realize how important they are once you experience a few hiccups.

Scheduling & Booking

Efficient scheduling is crucial to accommodate multiple parties and their availability.  Several automated scheduling tools allow you to send a link with several dates to multiple parties and reduce the back-and-forth communication on scheduling. It’s important to be able to provide dates quickly and efficiently.

There are a number of programs that are available to support interactive calendars for online scheduling. As you are selecting the program that is right for your practice, be sure to consider programs that allow you to gather information you will need to prepare and send out confirmation notices. For example, you will want to, at a minimum, be able to capture the party and counsel names, whether they have all agreed to the date selected, the style of the case, and the time, date, and format (online, hybrid, or in person) for the mediation or arbitration. Some programs even include an option to ask open-ended questions or include drop-down menu options to gather additional information, such as the nature of the dispute or other information the parties want to disclose.

Once the booking is received, someone has to review it and send out confirmations. If you are not working with an ADR provider, you or your case manager will need to set up a system to promptly follow up and confirm bookings.

Working With ADR Providers

Being self-aware is key to deciding whether to work with an ADR provider or go it alone. One author, Steve Schulwolf, was formerly a founding and managing partner of a mid-sized law firm. He decided to go it alone because he felt comfortable doing the necessary administrative work. There are several advantages and disadvantages to working with an ADR provider and practicing solo. As a solo practitioner, you have a lot of autonomy and you brand yourself and your own practice. However, as a solo practitioner, you are responsible for managing your assistants (if any), scheduling, billing, and collections. An ADR provider may reduce the “back office” work, but there may be a cost and some providers want their brand instead of yours to be what referral sources remember. Working through an ADR provider can provide camaraderie among the neutrals working under the ADR provider’s umbrella. As a solo practitioner, you can get similar benefits through various ADR associations such as the American Bar Association’s Dispute Resolution Section, the ABA-TIPS Dispute Resolution Committee, and national, state, and local bar ADR sections.

Different ADR providers work differently. Some charge the parties an administration fee and do not take any percentage of the neutrals’ fees, others require neutrals to pay them a percentage of the neutrals’ fee, and yet others endeavor to collect both an administration fee from the parties and a percentage of the neutrals’ fees. Each will also provide different services to the neutrals. For example, some will serve as a referral source for work. In contrast, others will mainly provide “back office” support (e.g., case management, invoicing, and collections) and maybe some level of marketing support to expand their brand with yours. So, it is important to be curious, compare services and fees, and decide the approach that you believe will help you best serve the parties and lawyers with whom you want to work.

Handling Billing/Collections

Nobody enjoys the administrative aspects of billing and collections. It is important to consider your options in this area. Do you prefer an hourly billing rate? Does the arbitral institution have an ad valorem fee system? Would the mediation parties be amenable to a flat-fee arrangement that is paid on or before the mediation as opposed to hourly billing? What about logistics of payment?

A third-party billing administrator or your IT team can make it possible to accept credit card payments through a portal on your website. Prompt and transparent billing procedures can reduce the time and effort spent on collections and reinforce your professionalism as a neutral. Payment is not always timely, so you should have a system in place to follow up as needed when payment is delayed.

Arbitration and Mediation Venues

In the world of virtual mediations and arbitrations, space is not an issue. Knowing how to create multiple virtual rooms and move yourself and others between virtual rooms is an important yet easy skill for a neutral to master.

However, for in person mediations and arbitrations, a choice must be made by parties as to paying for a physical place for the proceeding–sometimes there is a neutral venue; sometimes the administering institution offers space for a fee, and costs are shared as agreed among the parties; sometimes one of the law firms will host. There are a lot of options available for daily or weekly space rentals. In some markets, like Houston, several locations designed specifically for mediations and arbitrations are available for daily rental. Similarly, in New York, the New York International Arbitration Center (NYIAC) works with parties and counsel on in-person space and logistics. If you plan to mediate or arbitrate large, complex, multiparty disputes in person, you need adequate space for all, and that is something that should be agreed-upon early in the arbitral proceeding or when mediation is initiated.

Advice for the Aspiring Practitioner

The best marketing is done “in the room.” Always do your best work when you are selected to mediate or arbitrate any matter. From the moment you are contacted to the day your role in the matter concludes, be the best mediator or arbitrator you can be. Make working with you easy on the parties and their counsel. Attend all proceedings fully prepared. Maintain a likeable and professional demeanor. Let parties and counsel know you appreciate the opportunity to assist them in resolving their disputes and value the trust they have placed in you. 

A well-established mediator once told one of our authors that it takes five years to develop an ADR practice. That advice proved to be true. It is not uncommon for the phone to barely ring in the first year. Take a long-term perspective. Use your early years to build up your brand through writing and speaking and accepting cases when they come in. Recognize that being interviewed or vetted for a neutral role on a case is helpful to your professional development even if the parties choose a different neutral for that case. The interview is an opportunity to share your credentials and develop your network.

It can be difficult to remain positive and focus on improving your skills when you are relatively less busy. Write articles, pursue further training, and continue to put your name out there. Some mediation work is on a volunteer basis, and that can be a win-win proposition—experience and exposure while you would otherwise not be busy.

In that vein, Jon Lewis volunteers at his local small claims court when they have a “double pro se docket.” It’s pro bono, but the judges get to know the volunteer practitioners, and he obtains more experience. New practitioners can also seek a mentor to help them learn. Taking ADR courses, reading ADR books, and joining ADR organizations can keep you focused on your goals and stay positive and active in building your practice.

Finally, be yourself and be accessible. If there is one theme that pervades this article, it is that persistence and patience are likely to return dividends.