February 09, 2021 Feature

Developing a Thriving Mediation Practice: Planning, Marketing, and Networking

John Upchurch
Having started a mediation specialty firm 23 years ago, the author shares lessons learned while mentoring newer mediators.

Having started a mediation specialty firm 23 years ago, the author shares lessons learned while mentoring newer mediators.

illustration/iStock via Getty Images Plus

A law practice’s success depends on a sound and principled business plan. That business plan incorporates development and marketing, and it requires building and maintaining a strong client base. A mediation practice is no different. However, at the outset, one has an advantage not present at the commencement of the typical legal career. Experienced attorneys exploring a mediation career have resources and contacts at their disposal; they are not starting from scratch. Nevertheless, it is wise to allow sufficient time to map out a strategy, consider specific tactics designed to implement the overall strategy, and design a program to effectively and successfully enter the market. Having started a mediation specialty firm 23 years ago, I now spend a great deal of my time advising and mentoring newer mediators who have joined my firm in launching their careers as neutrals. The lessons learned over the years form the basis of the steps outlined below.

In the Beginning: The Transition and Getting Started

The critical first step is to evaluate and organize your available resources for identifying and categorizing potential clients. Who are your contacts, and, of these, who will be your clients? It is important to create a searchable client management database in which you can organize your contacts into categories. Potential sources include:

  • Prior opposing counsel
  • Current opposing counsel
  • Co-counsel and referral lawyers
  • Files and personnel resources (should be readily available for exploitation either personally or with the help of staff; might include past and present attorney contacts)
  • Key closed files (scour for names and contact information of adjusters, insurance, and corporate representatives)
  • Professional membership database lists, bar database lists, and the like (many states market specialty lists grouping trial lawyers, commercial litigation specialists, appellate lawyers, and those in other practice areas, in addition to groupings by geographic subdivisions)
  • Alumni lists, especially for a given state’s law schools

The master contacts database assembled from these sources should include, at a minimum:

  • Names
  • Firm (or company)
  • Category (e.g., attorney, insurance, corporate)
  • Contact information (addresses, phone numbers, and e-mail)
  • Suggested method of contact and follow-up

Create a “Champions List” of close, influential professional friends who might be looked to for active assistance in helping to introduce you to the alternative dispute resolution (ADR) market. Referrals are key to practice building, and it is critical at the outset to motivate your supporters to take action on your behalf. Ideally, in time, these referrals and recommendations will flow from your success as a mediator. In the meantime, introductions, supportive e-mails, and other networking activities must be the catalyst in generating support. And should you be taking your legal assistant to assist with your new direction, recognize the value of that person as part of your marketing program, for example, as a point of contact for assistants at law firms.

At the outset, it is essential to mount a campaign to reintroduce yourself to a market that has known you for years in another role. It is helpful to issue a press release to the local printed press serving your home area as well as all the legal periodicals commonly circulated among your peers in your target practice region. Following the press release, an engraved announcement of good quality with an enclosed picture and biographical sketch makes a strong impression on your Champions List, plus your top 250 to 300 friends, associates, former classmates, and other allies. This can be followed by an e-mail announcement utilizing the same text and graphics through Constant Contact (http://www.constantcontact.com) or a similar mass e-mail management service. Finally, arrange for a version of your announcement to be carried as an advertisement in the relevant local legal periodicals—ideally, repeated a few times over a period of several months. Have business cards produced and consider having swag imprinted with your logo, which can be a relatively inexpensive but effective tool. Subsequent advertising will be effective as circumstances and budgetary considerations warrant.

Introducing the New You to Your Target Market: Networking

We encourage our new mediators to make every day a workday, even with a light (or nonexistent!) mediation schedule in the beginning months. Again, planning and goal setting are important, as is maintaining a patient and positive attitude. Keep an active to-do list dedicated to marketing and networking and review it on a daily basis. Please know that virtually every experienced mediator will acknowledge that, at the outset, there was a frustrating lack of demand for an uncomfortably long time. This is a rite of passage that all must endure, and it is important not to become discouraged, as success will almost always follow effort and relentless perseverance.

This is written in the midst of the COVID-19 crisis, and I earnestly hope it will be in the rearview mirror when this is published. Nevertheless, a dramatic change has been required to maintain the practice of mediation now that virtually every case is being conducted via videoconference, in my case almost exclusively utilizing Zoom. Fortunately, with courts being closed, attorneys and corporate and insurance clients have adapted, and most are becoming quite comfortable using this platform. Many experienced mediators predict that once the crisis eases, the use of videoconferencing will continue, perhaps for 50 percent of the scheduled cases going forward. Corporate and insurance clients are saving millions in travel time and costs by having their representatives attend from home, and the consensus is they will wish to continue enjoying these cost savings. Hence, it is imperative that the beginning mediator thoroughly master the videoconferencing program generally used in the legal community—Zoom. Zoom enables the use of private breakout rooms, an essential component of conducting a mediation. There are ample video tutorials on the Zoom website (https://zoom.us); further, webinars produced by neutral organizations such as the International Academy of Mediators (IAM) and the National Academy of Distinguished Neutrals (NADN) are readily available on YouTube. Take this seriously. Learn the program and practice, practice, practice.

Once your announcements are out, it is time to begin personally campaigning in earnest to generate engagements. Formulate a strategy to make contact with the individuals on your list. Realize that it takes a long time before people actually realize you have transitioned your practice. Follow-up is imperative. For instance, if your contact is by phone, send a follow-up by a short e-mail. Review the database list regularly, adding any newly developed sources or tips from contacts. This will be a continuing exercise, and soon you will be adding contacts from the first set of cases you mediate. Keep in mind that the strongest tool in your repertoire is sending a new mediation client home duly impressed with your preparation, patience, and perseverance in handling his or her mediation.

This initial period affords a good opportunity to obtain additional certifications offered by your state bar, law school, or other relevant professional organization. For instance, few mediators are qualified by the Association of Certified E-Discovery Specialists (ACEDS). Such a certification in a specialty area can be an effective hook to gain traction, and accompanying résumé entries add to your qualifications and professional image as a mediator.

Daily activities might include attending CLEs, which offer the opportunity to meet new people and gain insight into an emerging practice area; rekindling active attendance and participation in your local bar association, perhaps seeking a speaking opportunity or writing a column for the bar association’s periodical; and attending special events and, if not cost prohibitive, sponsoring activities and charitable outreach.

An online presence is essential in today’s digital environment. Look into creating at least a basic website that can be found via a Google search. Consider a corresponding LinkedIn and Facebook page. Explore Twitter and Instagram. Should you so engage, be active and consistent in posting appropriate entries. Prepare, post, and share relevant articles of interest. Consider blogging, especially in areas of special expertise. Utilize your Constant Contact or similar e-mail marketing account to competently and effectively communicate with your network. Of course, it is the rare attorney over 50 or so who possesses the skills to do this unassisted, so finding an able assistant at a reasonable cost is important. Be sure your digital assistant is conversant with search engine optimization (SEO), particularly the functions of Google My Business, as well as the basics of online advertising.

A tactic that has proven to be most effective for practice building is conducting CLE seminars via video utilizing Zoom, GoToWebinar (https://www.gotomeeting.com/webinar), or Webex (https://www.webex.com). The cost is nominal, and those who make the effort to produce and arrange such a program will generally be rewarded with case bookings almost immediately. The technique is effective in that there are several points of contact; the participant is initially attracted by the reward of CLE credit, and the presenter is portrayed as an expert in the eyes of the audience. The presentation can be repurposed as a bar association newsletter article, thus presenting another vehicle for reaching your target audience. Further leverage is available by posting articles in your social media accounts and/or website blog, and these can serve as the basis for the subject article to be distributed via Constant Contact to your network. The costs are nominal; the investment is primarily your time and effort, but the payoff is significant.

Gaining Traction Once Scheduled Mediations Begin

Conducting the mediation is a natural opportunity to make, enhance, and reinforce client relationships. Pre-mediation preparation is key. This involves the review of submitted materials, followed by contacting the clients to discuss the case in advance of mediation. These pre-mediation-day discussions are also a good opportunity to ensure all are comfortable with the videoconferencing technology, should this be a video mediation. On the day of the mediation, arrive early to introduce yourself and meet the participants. These social greeting opportunities also give counsel a chance to pull you aside for a quick update on some late development. Overall, it is appreciated by the participants and improves the chances for a successful day. If videoconferencing, launch early to admit other early arrivals and put them at ease.

In conducting the mediation, the client’s exercise of self-determination is not in our control, but the level of service and professionalism we provide is. Clients know when you are prepared, and they greatly appreciate it. In the post-mediation phase, perseverance is key. Be sure to follow up in cases that do not settle that day. Veteran mediators delight in describing cases that come to an impasse but settle later after a series of post-mediation calls. Attorneys greatly appreciate this effort and are quick to dismiss from future consideration those who fail to follow up. Conversely, attorneys delight in describing the extraordinary follow-up efforts of various mediators, even in mediations with others. These anecdotes, many of which will never reach your ears, do exist, and they are invaluable. In the beginning years of an emerging practice, one has time to go overboard in the follow-up phase. It is an opportunity to develop raving fans, which will directly result in increased demand and a more satisfying practice.

Conclusion

A mediation practice can be a most satisfying late-career strategy, and virtually all who elect to follow this path are extremely pleased to have done so. Unfortunately, the path doesn’t work for all who attempt it. The distinguishing characteristic is most often the degree of planning and effort in the venture by the participant. The ideas set forth above have proven their worth when faithfully employed and represent the central strategy I have successfully employed over the years. I invite inquiries or questions from readers, and I wish all the best of good fortune and success in launching your mediation career.

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John Upchurch is a founding principal of Upchurch Watson White & Max Mediation Group, a multi-office firm in Florida and Alabama. Two decades before its 1996 founding, he became the youngest elected circuit judge in Florida history. He was a founder of the American College of Civil Trial Mediators, has served on the faculty of the National Judicial College, and has been frequently honored for the excellence of his contributions to the profession.