March 02, 2018

Hey, I’ll Just Be a Mediator When I Retire! Not So Fast…

By Douglas E. Noll

So you’re considering becoming a mediator after a long and successful career as a lawyer? Many smart lawyers do just that.

But you should make that decision based on the realities of the business of mediation and the knowledge that successful mediators often have very different skill sets than many lawyers. Here’s what you need to know before planning a future as a mediator.

To Become a Mediator or Not

Mediation as a second or third career for senior attorneys has some attractions. Here are a few reasons to consider becoming a mediator:

  • You want to give back and serve people who face difficult situations and decisions.
  • You wish to use your many years of experience in a different, positive way.
  • You hope to remain intellectually engaged later in life.
  • You want to be a peacemaker.

However, there are more reasons not to become a mediator. The list includes:

  • Mediation looks easier than it is.
  • You have no interest in going back to school to learn.
  • You won’t want to start a new professional career at the bottom.
  • You have no interest in managing a different type of professional practice without the support customary in the practice of law.
  • You don’t want to market or network.
  • You want to make a reasonable income right away.
  • You prefer not to work alone without collegial support from others.
  • Working with emotional attorneys and clients isn’t for you.
  • You’re not particularly good at or interested in problem solving, negotiation, coaching, or mentoring.
  • It’s important to you that your own ego is soothed and satisfied.
  • You prefer being the center of attention and the focus of any room.
  • At your core, you’re an advocate.

These lists suggest, correctly, that the business of being a mediator is about as different from the practice of law as one can imagine. There’s almost no crossover in knowledge, skills, or experience between lawyering and mediation.

It happens that lawyers and retired judges become mediators of litigated disputes. However, any of the top mediators will tell you that their legal knowledge rarely comes into play during mediation. In fact, most mediators have to shift their attitudes, perspectives, and even their personalities when switching from lawyering to mediating.

If you’re not dissuaded from considering mediation as new career, read on.

The Business of Mediation

Mediation is a professional practice, just like law. If you want to be good at it, you have to approach the practice as both an entrepreneur and a professional. What follows are some hard facts about the business of mediation.

The 90-10 rule applies. The 90-10 rule is as true in mediation as it is in the law: 90 percent of the work goes to 10 percent of the mediators. Of the 10 percent who get most of the work, only 1 percent receive compensation close to that of lawyering.

Yes, there are some mediators who command very high fees. For every one of those mediators, there are a thousand who see one case a month, if they’re lucky, for which they’re compensated a pittance. The idea that most mediators make a handsome living is a myth.

When you begin as a mediator, you’re entering an over-saturated market where the supply of mediators exceeds the demand for mediation services (at least in litigated disputes). You’re also entering at the bottom. Just like the practice of law, for most mediators, practice development takes years of hard work and sweat to get to a reasonable level of compensation. There are few exceptions; the odds are that you’re probably not one of them.

Your hourly rate won’t be as high as you hope. Excluding the 1,000 or so most highly compensated U.S. mediators, your fees will usually never exceed the highest hourly billing rate of the most senior lawyer in your region. It seems that lawyers who choose mediators are resistant to paying more than they earn themselves unless they’re paying for a national or regional “name” mediator.

Most mediators try not to work more than three days per week because the work is exhausting. In some jurisdictions, however, half-day mediations are common. Mediators in those areas may work a lot more cases in a week, with each case commanding a relatively low fee. Compensation is highly variable, depending on the customs of the jurisdiction, your reputation, and the demand for mediation services.

Your Office or Someone Else's?

The costs associated with a mediation practice depend upon what you want. Many mediators work out of their home and convene their mediations in law offices or court-reporting firms. Some mediators associate of counsel with a law firm and have access to that firm’s support and conference rooms. Still others open their own mediation offices.

If you open your own office, you must consider the following logistics:

  • How many conference rooms will you need? You want least two and maybe more if you find that you’ll mediate multi-party disputes.
  • How convenient is your office location to the bulk of the lawyers who’ll refer cases to you?
  • How close are restaurants and amenities for lawyers and clients before, during, and after mediation sessions?
  • Do you have high-speed wireless internet service? (This is mandatory.)
  • What’s your system for beverages, snacks, and other food service?
  • What other support will you supply? A copy machine? A fax machine? Computers? Printers? Other equipment?
  • How will your conference rooms be furnished? Some can be formal; others could be more informal sitting rooms.
  • What will be the ambience of your office? Don’t discount the power of feng shui and other design philosophies in mediation office design. You don’t want the look of a law office!

Another alternative is to join an alternative-dispute resolution panel. There are national and regional ADR providers that supply support for mediators in exchange for a percentage of the mediator’s fee or payment of a monthly fee.

However, these providers can be selective in their panels since they make money only if their “neutrals” are busy. As a panel member, you’ll also be generally expected to engage in marketing and development of your referral network.

Not All Mediation is Alike

Another question to consider is what type of mediation you wish to practice. In the past 10 years, mediation has divided into litigated versus non-litigated disputes. I’ll focus on litigated disputes, although the real money is in non-litigated disputes. I choose this focus because most lawyers will tend to prefer the structure of the litigated dispute.

Litigated disputes are what they seem—disputes that are in the court system. Parties are represented by lawyers. Most lawyers who consider becoming a mediator generally think about mediating litigated disputes.

Mediation isn’t the practice of law. To be effective, a mediator must be conversant in negotiation theory and practice, behavioral economics, cognitive and social psychology, decision-making theory, and a host of other non-law disciplines.

In recent years, the mediation of litigated disputes has devolved to a caucus-based form of facilitated negotiation. Most mediators are encountering lawyers in mediation who are under-prepared, lack sophisticated negotiation skills, and have limited civil trial experience. Thus, the burden of managing a settlement negotiation to a successful conclusion largely falls on the mediator.

Back-to-School Time

Acquiring the knowledge and skills necessary to manage the litigated-dispute mediation typically requires that you go back to school. You may attend a basic 30- or 40-hour mediation training course. But don’t be fooled into thinking that such a basic introduction makes you competent. Plan on spending time and money to become a professional.

The two big programs for educating mediators are based at the Straus Institute for Dispute Resolution at the Pepperdine University School of Law (https://law.pepperdine.edu/straus/) and the Harvard Negotiation Project at Harvard Law School (https://www.pon.harvard.edu/).

There are many other excellent graduate and certificate academic programs leading to a master’s degree or LL.M. in dispute resolution. At a minimum, you should plan on at least 30 graduate hours of academic training in the theory and practice of mediation.

In addition, there are dozens of training conferences around the country and throughout the world that provide education and skill building.

There are also ethical rules governing mediation. They’re not same as the ethics governing lawyers, and mediation ethical rules may conflict with lawyer ethical rules. If you’re a lawyer mediator, you must understand the nuances of mediation ethics and the interplay with attorney ethics.

Where will You Get Business?

If you decide to pursue a practice in the mediation of litigated disputes, your cases will come by referral. Don’t waste your time or money on firms that claim to put you number-one in search engines or entice you with claims of high referral rates.

The easiest way to think about referrals is to recall your high school days. If you were part of the “in” crowd, life was relatively easy. If you were on the outside, life wasn’t always so much fun. The same is true in mediation. You need to be like the popular kids in high school to be a successful mediator.

My general rule is this: You need 50 lawyers to give you one to two cases per year. You need another 100 lawyers to give you one case per year, on average. You need another 250 lawyers to refer to you one case every two years. Do the math, and you’ll see where your work comes from.

Reputation is everything in mediation. Having a reputation as a hard-charging lawyer won’t necessarily serve you in good stead as a mediator. You need to create, develop, and nourish a new professional identity as a competent mediator. This may take years to develop.

Finally, in litigated cases, many lawyers prefer retired judges over senior lawyers as their mediators. If you’re not a retired judge and live in a jurisdiction where retired judges are preferred, you’ll have to work that much harder.

Let the Hard Work Begin

Becoming a mediator can be as simple as sending out a fancy announcement to your colleagues. However, becoming a successful mediator involves much more planning and effort. Consult with other well-established mediators. Go back to school. Network like crazy. Maybe, with hard work and luck, you’ll enter the ranks of those who call themselves professional mediators, are good at what they do, and are compensated appropriately.

By Douglas E. Noll

DOUGLAS E. NOLL, JD, MA, is an award-winning author, speaker, and professor. His internationally acclaimed mediation practice is based in Clovis, Calif. (http://dougnoll.com), and is devoted to deep and intractable conflicts.