April 05, 2019

Twelve Tips for Launching a Mediation Practice

James E. McGuire


Could we have lunch some- time? I have been thinking that I would like to be a mediator, and I was wondering if you could give me an hour of your time so that I can learn to do what you do.

Every experienced mediator has fielded such a phone call on many occasions. Often the caller is an older litigation attorney who has participated in several mediations and has come to believe that mediation is better than litigation. Sometimes the caller is younger—someone who has experienced mediation through a law school course, community service, or work as a second chair in a mediation. Sometimes the caller is a person who has heard and rejected the old advice, “Don’t give up your day job.”

In all cases, many people want to know how to enter a profession that has no prescribed path. This article focuses on the basics—the recommended first steps for those who want to enter this field.

1. Write a short essay to yourself. Topics: Why I want to be a mediator and why anyone would employ me as a mediator. The purpose of this essay is to answer these questions for yourself. Many people muse about mediation and whether they have the right stuff and should try to be a mediator. There is no correct answer to these questions. Those who actually decide to become mediators usually have diverse reasons for doing so and varied packages of skills or experience to offer. The answers you give yourself will help shape what you then do to fulfill your goals. Continue with the next steps only if you feel a strong personal sense of commitment, even passion, about your desire to be a mediator.

2. Write your mediator bio. Take a current bio or CV, keep your name, delete all remaining text, and save as “My mediation bio.” Go online to websites for mediation service providers and read 20 to 30 different mediators’ bios from three or more websites. Pick the best samples and create your template. When you start to write your own bio, you will necessarily have many gaps in your training and experience. Filling in those gaps with real substance is the beginning of your training and marketing plan. For now, even if you have not mediated a case, you may have relevant subject-matter expertise based on work that you did in negotiating business deals or litigating cases in specific areas. The combination of your subject-matter expertise and solid mediation training may be enough to obtain your first engagements as a mediator. This is a profession that is built more on personal reputation than paper credentials. Honesty and a commitment to the process are the essential attributes of any successful mediator.

3. Take a basic mediation training course. All responsible, credible mediators do so. Those who think that 25 years on the bench or at the bar somehow qualifies as mediation training are wrong. Our code of ethics requires that we be trained.

4. Start reading. A trained and qualified mediator is expected to be conversant with our literature. Have you read Getting to Yes? Good. Have you read Getting Past No? That’s the book you read to know what to do when the other side hasn’t read Getting to Yes. Your training course will assume you know something about the language, the theory, the process, and the pitfalls.

5. Get connected. At the national level, you should become a member of the ABA Section of Dispute Resolution and perhaps a member of the Association for Conflict Resolution as well. At the state and local level, you should become a member of the dispute resolution group of your state or local bar association. You should also become a member of some nonlegal mediation or ADR group. You should also get a mentor or a coach. Many organizations provide matching services.

6. Pay your dues: Volunteer to mediate. The fastest way to have mediation experience is to volunteer to mediate. In most jurisdictions, court-connected mediation programs depend on volunteer mediators for small claims and lower-level trial court cases. Most mediators have provided free services, either because it was the right thing to do or because it was a way of getting started

7. Practice in your own backyard. If you are a member of a law firm or a member of a corporate law department, you have major opportunities to sharpen your skills, market yourself as a mediator, and help your own organization starting immediately. Most likely, your firm does not now have a well-developed ADR practice group. If it does, join that group. If it does not, create that group. An ADR practitioner should become the firm resource center for ADR. Internal educational programs are a very effective way to sharpen skills and make the firm aware of your skills as a mediator and ADR specialist.

8. Look for educational and speaking opportunities. Even in the twenty-first century, people collectively still need to know more about mediation. There is a logical link between the practice you are trying to build and the places where you want to speak. In your preferred practice area, who are the gatekeepers? Who are the people that those in need of mediation services are likely to seek out for advice? Put education first and prepare talks that offer some substance—some practical tips and advice relevant to the group. Build on the work you have done inside your own organization. Your presence and presentation (and your contact information) are still the best forms of soft and effective marketing.

9. Write something. Articles written by you on topics important to you will also find a receptive audience. Avoid the disturbing current trend of paying some organization lots of money to write and place articles that are “yours” in name only. The Model Standards of Conduct for Mediators provides that mediators should do things that advance the practice of mediation. Mediators may meet this obligation by “participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.”

10. Primacy and recency. People are most likely to contact the person who first introduced a useful idea or the person who most recently discussed that idea. As applied to mediation, that means marketing is an ongoing process. People who first heard about mediation or thought about using it in their future disputes because of something you said or wrote are more likely to contact you. For most mediators, the best sources of new business are contacts from old business—satisfied participants in a mediation process. So an effective marketing strategy must include some way for you to keep track of who those people are and some way to keep your name in their brain or at their fingertips so that they think of you when the actual need arises.

11. Plan your work. Work your plan. To become an effective and experienced mediator requires developing and implementing a plan to acquire the necessary training, experience, and public awareness. Those who create plans are most likely to succeed. The milestones that you create will be your best indicator of how successful you are in implementing your plan. Be realistic about how much you can do, but challenge yourself with real dates and deadlines.

12. Web awareness. In the twenty-first century, marketing any service requires consideration of the Internet for marketing and communications.


More Information About the Section of Dispute Resolution

This article is an abridged and edited version of one that originally appeared on page 4 of Dispute Resolution, Winter 2011 (17:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: www.americanbar.org/dispute.

Periodicals: Dispute Resolution magazine, published four times per year; Just Resolutions eNews, an electronic newsletter published ten times per year.

CLE: Annual spring conference, the world’s largest ADR conference; spring and fall advanced mediation or arbitration training institutes; teleconferences.

Books and Other Recent Publications: Lawyering with Planned Early Negotiations; Judges Under Fire; Organizational Ombudsman; Mediating Legal Disputes; Challenging Conflict: Mediation Through Understanding; Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes; The Negotiator’s Fieldbook; Advanced Arbitration Insight: 20/20 DVD.

Member Benefits: 20% or greater discount on all Section publications; 35% or greater registration fee discounts on all CLE programs; discounted liability insurance for arbitrators and mediators; ethics guidance for mediators; professional resources and practice tips; more than 20 practice area committees.

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