May 16, 2018 Practice Points

Wanna Be a Mediator? Find a Niche

By John Bickerman

About once or twice a month, I receive an inquiry from a lawyer who would like to make a career change to becoming a neutral. Sometimes the person is nearing retirement and looks favorably upon the apparent flexibility and freedom that an ADR practitioner seems to enjoy.

Of course, the reality is quite different. Becoming a successful neutral is not an easy task and there is no guarantee for success. Ten years ago, when I chaired the Section of Dispute Resolution, it was rumored and oft-quoted that the median income of a mediator was $0. Stated differently, more than one-half of the attorneys that identified themselves as mediators had no income. While I was never able to confirm the veracity of the statistic, anecdotally, it seemed quite plausible.

The reasons for the failure of so many would-be mediators (and arbitrators) is that little thought has been given to the business of being a neutral. Many prospective neutrals invest in training. Excellent programs to teach skills exists at many fine universities. Conferences also offer some cutting edge knowledge of the field. What is lacking, or given very short shrift, is how to start and run a business. No, it’s not as easy has putting up a web page, getting a phone number and a clever name and waiting for the clients to pour in. The competition for work has grown significantly in the last decade. As mediation and arbitration have become commonplace, the field has been flooded. Well established mediators with thriving practices a few years ago have seen their workload decline, and there has been increasing pressure to reduce fees for all but the most well-known and successful neutrals. This downward pressure on neutral fees is a sure sign of the increased supply of neutrals and the higher level of competition. This pointer will focus on just one element of starting a practice: identifying and developing a niche.

I can usually tell within five minutes of meeting with a prospective neutral whether s/he will be successful. The defining characteristics are almost always a degree of confidence, commitment, enthusiasm, perseverance and, most importantly, a clear idea of the type of practice to be developed. With so many neutrals competing for work, establishing a brand and differentiating it from the masses is essential for success. Presenting oneself as an all-purpose neutral that can handle any case might have been a successful approach when the field was new, but it’s unlikely to lead to a thriving practice today. Instead, figure out a substantive area and specialize. For example, a number of years ago, a friend recognized that the field of health law was filled with conflicts that were better resolved outside of court. He developed an expertise in several aspects of health law. He promoted his expertise by writing and speaking on the topics he knew to prospective clients. Over time, he became the “go-to” mediator for this area of law and has built a very successful practice. While there is no right path to finding your niche, start with areas of law in which you have practiced and built a successful reputation. Or follow the example of my friend and identify an area where there is an unfulfilled need. Establishing a successful practice will not happen overnight but with creativity, diligence and planning, it can be done.

John Bickerman is the founder of Bickerman Dispute Resolution in Washington, D.C.


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