chevron-down Created with Sketch Beta.
March 06, 2013 Practice Points

A Strategy for Building a Mediation Practice

By Shalini K. Kedia

Similar to other enterprises, building a mediation practice takes commitment, hard work, and perseverance. Excellent mediation training, diverse co-mediation experience, participation on mediation panels, and online visibility are key building blocks upon which to develop your practice. Here is the strategy that is working for me:

Take the Risk It is very difficult to build a fulltime mediation practice while practicing law, as it requires your undivided attention and time. Before you take the plunge you may wonder: Do I have what it takes? If you are an experienced attorney, have had success in business development, possess strong communication skills, are naturally diplomatic and trustworthy, can think outside the box, and are passionate about the art of mediation, then the answer is: Yes, you do have what it takes. But you also have a lot of work to do.

Become a Student of Mediation To become a successful mediator, you must go beyond standard mediation training, CLE coursework, and mediation case study. Mediation is an art involving complex concepts relating to business, human behavior, and law. Thus, you should read broadly on topics involving psychology, business, and negotiations. To emulate successful practices, develop collegial and mentor relationships with other mediators. Most importantly, listen to your target client base––attorneys. Don’t be shy. Ask them, for example, what they like—and dislike—in their mediators, which approaches they find successful, and their opinions on joint sessions. Learn from your consumer. Analyze and critique every performance, regardless of the actual result of the mediation.

Develop Substantive Expertise While mediating cases entails a multidisciplinary approach, it is critical to develop a substantive legal expertise to target your market and cultivate repeat business. I do not recommend that you attempt to be a “generalist” as a mediator because most attorneys retain mediators with substantive expertise in the subject matter of the underlying case.

You should therefore invest your resources and energy into developing substantive expertise. At the onset, to build a mediation practice, you should market one to four areas of expertise to foster your creativity and approach in resolving cases and to build business security. Decline cases in which you lack substantive knowledge. As your business grows, narrow down your practice areas to those that yield more business.

You can market your niche practice by publishing articles, issuing newsletters, blogging, or speaking at MCLE programs that highlight the breadth and depth of your legal experience in a specific area of the law. You should inform leading attorneys in your area of expertise that you have substantive knowledge and experience, appreciate the unique challenges in resolving such cases, and are committed to developing a niche practice. It is also important to proactively keep abreast of changes in the law, legal articles, and jury verdicts, and to actively participate in relevant sections of bar organizations. In addition, you should remain open to developing a different area of expertise as a mediator than you had as an attorney. Indeed, local supply and demand may require you to do so, and you may even find that some attorneys may seek to develop your expertise within a specific area of the law. That is not to say that you should be a slave to the market. If you are not building traction in your preferred areas of law, hone your marketing efforts. Regardless of your substantive expertise, you should be an expert in the mediation process itself.

Network, Network, Network You need to figure out what networking avenues work best for you. Personally, my greatest strength is that I am a people person. Thus, I chose to take an organic, grassroots approach to business development rather than using traditional mass marketing tools such as mailers and print ads. I attend events where I have access to my client base—civil litigators—and my objective is not to merely shake hands and exchange business cards but to focus on making solid, quality connections with two or three attorneys. I learn about their practices and listen to their thoughts on mediations, neutrals, and mediation styles. And more often than not, I am introduced to other attorneys through these types of interactions. Everyone is interested in networking, so ask for introductions and referrals.

Do not limit your networking efforts to attorneys who have an immediate need for a mediator. In addition to short-term marketing efforts, you should also employ a long-term plan. Take the time to speak with law students, recent graduates, and unemployed attorneys because eventually they will be in a position to refer or retain you.

I also network through participation in law-related associations and community service programs. Join organizations that pursue a mission about which you are passionate. Such organizations provide intimate networking opportunities while at the same time allowing you to give back. Their reach is also often broader than the immediate geographic area. For example, through these networking efforts in San Diego, I am building business beyond southern California.

Zealously Maintain Neutrality You must become a mediator upon whom both sides can agree. This is a key building block of a successful mediation practice, and your integrity as a mediator depends on this. Be honest and sincere in every interaction. Attorneys use mediators they trust. With the proliferation of social media, one negative comment about your performance can haunt you in perpetuity. Always remember and embrace your role––you are a neutral, not an advocate.

Take Ownership The backbone of a thriving mediation practice is repeat business. You will become a go-to mediator once you have an established track record of successful mediations. The key to consistent success is taking ownership in resolving each and every case. First, there is no substitute for case-specific preparation. Premediation discussions, careful analysis of the confidential mediation briefs, and review of relevant case law are essential. Second, your execution of the process sets the tone and greatly influences the outcome of the mediation. Have a game plan when you start the mediation. Resist the urge to forge ahead on autopilot. The mediation process is dynamic, and you must be too. Be quick to recognize when a shift is needed to keep the parties on course. Listen to the attorneys and parties. Focus on their actual words, rather than what you think they are getting at and how you will respond. Finally, close. Never give up. If the parties are unsuccessful in achieving a resolution, be relentless and follow up.

Keywords: woman advocate, litigation, mediation practice, mediator, networking