How to Make Money as a Mediator (and Create Value for Everyone)

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Krivis.ffirs
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Page i
How to Make Money as
a Mediator (and Create
Value for Everyone)
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Page ii
Jeffrey Krivis and Naomi Lucks
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How to Make
Money as a
Mediator (and
Create Value
for Everyone)
30 Top Mediators Share Secrets
to Building a Successful Practice
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Page iv
Copyright © 2006 by Jeffrey Krivis and Naomi Lucks. All rights reserved.
Published by Jossey-Bass
A Wiley Imprint
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www.josseybass.com
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Library of Congress Cataloging-in-Publication Data
Printed in the United States of America
HB Printing 10 9 8 7 6 5 4 3 2 1
FIRST EDITION
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Contents
Acknowledgments
Introduction: How I Found My Dharma in Mediation
1. Extreme Mediation: What Top-Tier Mediators
Know That You Can Learn
2. Be Yourself: Inspiring Trust, Projecting
Authenticity, Honing Your Skills
3. Invisible Marketing: The Essence of Networking
4. Visible Marketing: Getting Out There
5. Practical Considerations: The Business
of Mediation
6. How Much Money Can You Earn?
Value, Investment, and Cold, Hard Cash
7. Staying Alive: Weathering the Ups and
Downs of a Mediation Practice
8. Looking Ahead: The Future of Mediation
and Your Future in Mediation
The Mediator’s Field Guide to a Successful Practice
About the Authors
About the Contributors
Index
vii
1
9
33
53
77
109
137
157
177
199
221
223
233
v
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To our friends and colleagues at the
International Academy of Mediators
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Acknowledgments
This book is a result of a unique collaboration with prominent
practitioners who have shared their unvarnished insight into the
ideas, attitudes, and approaches that have made them successful.
This unique collaboration seeks the larger objective of helping our
fellow mediators achieve their goals of prosperity and productivity.
For this reason, the men and women who contributed to this book
deserve a standing ovation: the sum total of their cumulative
knowledge far exceeds what two people writing this type of work
could have brought to the field.
We are truly grateful to many of our friends and colleagues at
the International Academy of Mediators, who have provided
unconditional access to their years and years of experience in the
marketplace.
This book would not have been written without the vision and
insight of Alan Rinzler of Jossey-Bass, an imprint of John Wiley &
Sons. We also want to thank the rest of the staff at Jossey-Bass,
including Seth Schwartz, Muna Farhat, Carol Hartland, Paula
Goldstein, Brian Grimm, Karen Warner, Michelle Jones, and
Joanne Farness.
vii
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How to Make Money as
a Mediator (and Create
Value for Everyone)
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Introduction
How I Found My Dharma in Mediation
When I found my dharma in mediation, everything
fell into place.
Jeffrey Krivis
I
t’s a given: no one goes into mediation to make their fortune.
Virtually every successful mediator I know—whether their
specialty is employment, entertainment, insurance, personal injury,
family law, public policy, or something else—was drawn to the field
for its richness and possibility. Each one of them thinks of mediation not just as a job but as a vocation: a calling. Many of them—
including former litigators who were making a lot more money
taking cases to court—stay in the field despite the fact that they are
not earning anywhere near their former salaries.
Still, a small but growing number of mediators today are making a very comfortable living in the low to middle six figures, and a
few are enjoying returns verging on and even achieving seven figures. How do they do it?
And how can you do it?
That’s what this book is about. We spoke to some of the most
successful mediators in the business and asked them to share their
experiences, their advice, and even their secrets. And we discovered something interesting in the process: despite the fact that we
all began in different fields (including corporate business, commercial litigation, teaching, insurance adjusting, and social work) and
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HOW TO MAKE MONEY AS A MEDIATOR
practice in different geographical areas (from California to Michigan to Hawaii, from Canada to New Zealand), we all share similar
feelings about what it takes to become a successful mediator.
MY STORY
I never planned to become a mediator. When I was in law school
and for the first years of my practice, mediation wasn’t an option.
In fact, it wasn’t even a field. Then, in 1989, everything changed.
At age thirty-three, I had a successful litigation practice earning
a respectable six-figure income—that was, and is, a lot of money for
a young guy, and there was no monetary reason for me to change
what I was doing. But when I thought about my future, I just couldn’t see myself summarizing depositions and responding to interrogatories for the next thirty years.
Then a client asked me to settle a case through a mediator. A
mediator? We didn’t have those in California, I told him, but I knew
that other states did. I looked around, asked a few questions, and
eventually the client referred a mediator from Texas, Richard
Falkner, to work with me. It didn’t take me much time to discover
that the process worked and to find that I admired its authenticity.
In short, mediation felt right, and I connected to it.
When the case was settled, I asked Richard, “Do you really do
this for a living?”
“Yes,” he replied. “It’s part of our state court system.” And then
a great thing happened: he invited me to go to Texas and get training in the mediation process with his partner, Gary Kirkpatrick;—
this personal approach was pretty much the only kind of training
there was in those days. I jumped at the chance, hopped on a plane,
and spent a few days attending an interactive workshop on mediation. Those few days illuminated my future, showing me a vision of
what was possible and what my life could look like. I returned home
inspired. I would be a mediator.
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Introduction
Getting Started
After I came back I investigated around the country to see who was
doing this for a living. I soon discovered the Connecticut Mediation
Project, which had been started by the state’s insurance industry to
get trial lawyers to come to the table and mediate their cases instead
of litigating. It was organized by Don Reder, a nonlawyer, who became
one of the key mediators in this highly successful program. He eventually started his own firm, Dispute Resolution Services. It had a
roster of professional mediators, mostly retired judges, and Don. Marketing people handled the phones, and administrators scheduled
cases. It was quite an operation. When I called, my obvious interest
touched a nerve, and Don invited me to spend a couple of days
observing. I sat in literally every office of his business and watched his
people work. I asked questions and sat in on mediations. Now I had
a business model. There was nothing in California like this, and the
experience really helped me understand where the market could go.
It was an exciting time, and I couldn’t wait to get started.
I had a young family, a wife and two small daughters, and I knew
I had to sustain them, but my own vision wasn’t about the money:
it was about doing something I was called to do and felt I could do
well. If I made money, great. If not, well, I had a lifetime ticket that
allowed me to return to the grind of trial work.
I like innovation, and I like to be involved in creating things.
Like other successful people in this field, I don’t mind taking a risk.
At that time, however, becoming a mediator was more about saving my life than it was about starting a new career. In my law practice, I felt I was becoming a slave to the bureaucracy of corporate
America. I was losing my character, and fast.
For example, to make sure my corporate clients felt comfortable,
I had to keep my office decor bland and nonthreatening. Standard
furniture, conventional prints framed and hung on the wall, no personal effects to hint at my personality, nothing too extravagant—
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HOW TO MAKE MONEY AS A MEDIATOR
an uninspiring picture calculated not to offend the sensibilities of a
corporate bureaucrat. My office did put the clients at ease, but it
didn’t feel like home to me. I grew increasingly dispirited, and
wished that instead of dragging myself to the office I could wake up
every day inspired and motivated to go to work and feel good about
myself. Time felt precious; I didn’t want to waste another minute.
Mediation was my ticket out. It let me find my own voice and
not be the voice of an industry, a hired gun. As I mediated one case
after another, I began to find that I could have fun with the process,
trying different approaches and expressing aspects of myself I hadn’t even known were there. I soon discovered that I thrived on
building the intimate relationships that develop in mediations. People trusted me; they wanted to reveal their secrets and goals, and
my job was to help them realize these goals. I also discovered that I
didn’t mind dealing with the ambiguity that arose when I put myself
in the center of the tug-of-war between the conflicting parties. I’m
also an idea juggler; I like having a lot of balls in the air. So that
part of the process—going from one room to the next, understanding how each party was thinking, trying to help them reach multiple goals—suited me perfectly. To make a long story short, I found
my groove in mediation, and the money seemed to follow naturally.
When I began, I had a goal. And I told myself that if I wasn’t
moving forward and creating progress, I could always stop and go
back to the practice of law. But every year I did make progress, even
baby steps, so I kept going.
Growing a New Profession
Fortunately, I wasn’t alone. I was one of a small group of people who
were trying to change the prevailing mind-set—that the courthouse
was the only option available to resolve a case—and create a new
field of practice in the civil justice system: mediation. I immersed
myself in the idea of putting mediation on the map in California
and got involved with the brand-new Southern California Mediation Association (SCMA), which had started at Pepperdine Uni-
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Introduction
versity School of Law. I joined with others in the legislative efforts
to require the largest court in the country—the Los Angeles Superior Court—to mandate the use of mediation in all civil actions,
and I found a receptive audience in the courts, in the trial lawyers’
association, and in the insurance industry. The courts were already
leaning toward mediation because of the obvious advantage of closing cases faster, saving administrative costs, and generally giving
their customers—the public—more client satisfaction. At that time
they were beginning to explore the process with retired judges, using
mediation as a kind of settlement conference. It was a start, but to
my mind this was just scratching the surface of what the process
could be.
From a business standpoint, I realized that if I could get the
courts to accept the idea of mediation as a valid process in its own
right, I would be there to catch the fruit that fell from the trees. So
I got involved in educating lawyers and judges about the process,
spending a lot of time trying to convince the California courts to
mandate mediation. They generally thought this idea was something of an oxymoron, because mediation is voluntary by nature.
How do you force people to negotiate? We argued that two other
states, Texas and Florida, were already successfully mandating mediation. Clearly we needed to educate lawyers about the process
quickly if we were going to get the ball rolling in California.
We knew that if we got lawyers involved in mediation, the
process would sell itself. So we pushed hard for two or three years,
an informal but relentless effort by a group of highly motivated and
committed individuals—the SCMA, Pepperdine, the Los Angeles
County Bar Association, community leaders—getting together and
asking, What can we do to institutionalize this process?
This effort opened some important professional doors. More and
more lawyers got to know and trust me, and that began to pay off
in cases coming my way. A big personal turning point came 1992,
when a large insurance company decided that it wanted to settle
hundreds of cases at once and wanted one mediation firm to handle
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the whole thing. A request for proposal was sent out to various
mediation providers, and I was selected. That introduced me to a
lot of lawyers—one for each case. I got on the phone and invited
trial lawyers to attend a voluntary mediation, with me serving as
the impartial mediator. They were reluctant at first, but in the end
70 to 80 percent of the cases agreed to mediate, and they all settled—
not so much because of my skills as a mediator, but because the
insurance company was motivated to settle. These lawyers, however, gave me more credit than I was perhaps due, and started referring more business to me.
Personal Success in a Burgeoning Field
In 1994, the field really took off when a group of ambitious mediators got the California court system to sign off on mandated mediation as a new law in Los Angeles County. The same year, I also
became affiliated with Pepperdine University, where I had done a
workshop in dispute resolution. After that, I was invited to teach a
class and direct a six-day program called “Mediating the Litigated
Case.” Although I had never taught before, it seemed to come naturally and challenged me to stretch my abilities to connect with an
audience, something all mediators need to do. Through that affiliation I was able to find institutional credibility in the marketplace:
Pepperdine would regularly send out brochures about the course,
with my picture prominently displayed, and it was terrific public
relations at no cost to me. This was an unexpected bonus that
helped me market myself and make money.
By 1996, I was fairly well known in the Southern California
marketplace, and one of the few full-time mediators. In fact, the
Daily Journal—read by every lawyer in Los Angeles—did a full-page
profile about my practice called “A Full-Time Mediator Is a Rarity
in California.” In addition, I wrote a lot of articles for a variety of
publications about mediation techniques and skills, learned to be a
public speaker, became president of the SCMA—and all just
because I truly enjoyed my work. It’s great to wake up every day and
look forward to what you’re doing.
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Introduction
Today I’m making more money as a mediator than I did as a
lawyer, yet ironically I’m more active in the law than I was when I
was actually practicing law. I regularly read appellate decisions in
order to stay updated on the various areas of the law I practice in,
and I get to enjoy personal relationships with a wide variety of people. Like any entrepreneur, I have my ups and downs. If the phone
doesn’t ring for a day, I used to be concerned. Now I realize it’s part
of the rhythm of the business.
GETTING IN THE DOOR
Some mediators are seen as fringe players in the civil justice system
until they become established. Other mediators, many with excellent skills, never become established. So the question is, what does
it take to get established, to be the name that repeatedly shows up
on the ledgers of people who are looking for mediators?
You need to begin by thinking of yourself as a professional mediator, believing in yourself, and living the part every day. You need
to develop a reputation for mediating well and staying with a case
until it closes. But beyond these fundamentals, you need to understand how to market yourself as a mediator: what it takes to get the
power players on your side and what you need to do to be seen as—
and become—part of their group.
To take a very simple example, I wear a suit and tie to work
every day because when people go to court, they wear a suit and a
conservative tie. I would be far more comfortable in khakis and an
open-collar shirt, but I would also be viewed as a fringe player by
the established players—lawyers—by whose good graces I survive.
Because I want to be part of the established legal circle that views
me as the head of the table, I dress accordingly. That doesn’t mean
I have to conduct the process in a staid and conservative manner—
far from it. But dressing the part gets me in the door.
Here’s another example. When I decide to write an article on
mediation, I don’t try to get it published on the op-ed page of the
Los Angeles Times, but in the journals that my clients read every day.
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I might reach thousands more with the Times article, but I won’t be
reaching the people who decide which mediator gets the case. Being
perceived as an authority by potential clients gets me in the door.
The point is, do what you can to get in the door! Once you’re
inside the caucus room, you own it. You can work the room to your
heart’s content and be as creative and imaginative as you need to
be to settle the case. But that involves another set of skills, not the
ones we’re talking about in this book.
Your ability to open the door and walk through it—your grasp
on what it takes to market yourself as a mediator and manage your
business well—will make or break your career. Making money as a
mediator isn’t the whole ball game, but it’s a sign that your skills are
recognized by your peers, that you have a high degree of business
and marketing savvy, and that you’re 100 percent committed to the
practice of mediation. You’ve distinguished yourself from the mass
of mediators and made it to the top: you’ve got the right stuff.
If you want to make money as a mediator—and achieve the success and satisfaction that come with the privilege of being able to
work every day at a job you are passionate about—you’ll do well to
follow the models set by the thirty top mediators who were gracious
enough to share the secrets of their success in this book. Nobody
wants to give away the store to his or her competition, but the best
mediators understand that they’re not in competition with anyone
but themselves. They understand that the practice of mediation is
all about people and that sharing their wealth of knowledge and
experience to help other talented people reach the top can only
help the profession as a whole.
Every successful mediator I know—myself included—feels
“lucky” to be able to work every day in a field as rewarding as this
one. We all join in wishing you the very best of that luck in your
chosen career.
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1
Extreme Mediation
What Top-Tier Mediators
Know That You Can Learn
I am as excited about my 3,700th mediation as I
was about my first. This is a bring-your-A-game
business. You have to be as strong on Friday as you
are on Monday. If you make them know you are glad
to see them and psyched for the task at hand, they’ll
be back.
Eric Galton
Y
ou’re a natural: you know in your bones how to bring a room
full of chaos and conflict to harmonious closure, and you just
keep getting better and better. You’ve been a professional mediator
for a while now, and there doesn’t seem to be an upper limit to your
improvement. You love what you do, and people want to be around
you—you radiate energy. They’ll even pay a lot of money to work
with you and learn from you. You don’t have to think about it: life
is good. There’s nothing else you would rather be doing.
This is how every single top-tier mediator I know experiences
his or her profession. If this is how mediation makes you feel, you’ve
got a real shot. But please note: these super-successful mediators are
standing at the very top of a pyramid that has a very broad base.
You’ve probably heard the 80-20 rule: 20 percent of the people
do 80 percent of the work. That’s as valid in mediation as it is anywhere, and perhaps more so. In mediation—whether it’s commercial, employment, family law, dispute resolution, or any another
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HOW TO MAKE MONEY AS A MEDIATOR
!
You Gotta Have Heart
You’ve got to have fun doing it. You have to have a passion.
You put your energy where your heart is. You put your treasure where your heart is. If your interest is truly there, you put
your resources there. Money will not give you a mediation
business. It requires your time and effort in interacting with
other people.
Robert Jenks
specialty—the mediators on the bottom tier of the pyramid are constantly scrambling for work, losing heart, and returning to their former careers or searching for a new path. Those who do manage to
rise up to the small middle tier—about 15 percent—stay busy, make
a good living, but never quite break through. Meanwhile, the top 5
percent—for our purposes, the highest earners in a given region—
have calendars that are filled months in advance and bank accounts
that are bulging at the seams.
Some of this success depends on one’s niche. It’s no surprise that
mediators who work primarily on panels or part-time or in family law
or neighborhood disputes are unlikely ever to see the kind of money
that a full-time mediator who settles multiparty construction cases
brings in regularly—even if their negotiation skills and personalities
are in every other way equal. That may not seem fair, but—at least
for now—that’s the way the mediation market is set up.
Mediation is an extreme career. Many describe it as a calling. It’s
a field in which you can be wildly successful—think Tiger Woods,
Martina Navritolova, Lance Armstrong—but only a relative few
make it to that top tier and thrive. Those who do can’t imagine
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Extreme Mediation
doing anything else. Like Paul Monicatti of Michigan, they say,
“Mediation is my passion, and it is also so much fun for me that if
I didn’t have to pay bills, I’d do it for free.”
If you can say the same, then you’ve found your calling as a
mediator. If you don’t have the energy, the love, the passion for
mediation that the top people have, the truth is that you’ll probably never join them.
FALLING OFF THE
MEDIATOR BANDWAGON
It seems as though everybody wants to jump on the mediator bandwagon these days. As New Orleans mediator Robert Jenks says
wryly, “You can’t swing a cat without hitting a mediator, but you
can swing a lot of cats without hitting a good mediator.” Toronto’s
Cliff Hendler agrees: “Virtually every lawyer who appears before me
in mediation says, ‘I could do that.’” And in Minnesota, Michael
Landrum says, “I can’t remember the last time I was in a mediation
when one of the lawyers didn’t say, ‘Well, I’m a mediator too!’” I,
too, have had this experience many times over.
Not surprisingly, our profession is packed with people who are
trying to get a piece of the ever-expanding mediation pie. If you’re
a mediator, you’ve probably been through at least some basic mediation training. The number of trainers and programs seems to be
exploding, and they are turning out hopeful new mediators almost
daily. For many would-be mediators, this career choice seems like a
no-brainer. Unlike the person getting a credential to become a
teacher or a law degree to become a lawyer, or putting in years of
study to become a doctor, you don’t need years of dedicated schooling and a special degree to set up a practice. And look at the payoff: the most successful mediators are shining examples of what
might be—they’re making a lot of money, they seem to enjoy their
work, and they make it look easy.
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!
Only a Few Survive
The mediation pie can expand, but the number of people eating that pie expands geometrically. So if business doubles,
we’ve got quadruple the number of people wanting to be
mediators. But only a small number of people are going to sustain themselves as mediators long term in the private sector.
The volume of people interested in being mediators is always
going to exceed the number who are really able to do it.
I think too many people go out there and train as a source
of income—and you can make an okay amount of money. If
people are taking the training to skill enhance, that’s fine. But
I get a résumé once a week from a person who says, “I’ve just
been through mediation training; I want to get into this field.
Do you have any jobs for me? If you don’t, can you give me
advice?” And I do give them advice. But the truth is, making
a good living in mediation is a very difficult thing to do.
Robert A. Creo
Crash! Most of the freshly minted newcomers who burst out of
basic programs raring to go stumble at the first gate. What they’re
stumbling over is their own skewed idea of the reality of a mediator’s life and what it takes to achieve success.
The first hard lesson newcomers learn is that experience and
success count for a lot in this business, and they have yet to acquire
it. Southern California mediator Nina Meierding says, “I receive
dozens of calls from people who want to ‘take me out to lunch’ so
that I can tell them how to be an instant success. The brutal reality is that there is no instant success—it takes commitment, a
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Extreme Mediation
!
Field of Dreams
I, too, initially had the Field of Dreams approach: “If I build it
(mediation), they (the public) will come.” I believed that the
concept of mediation was so good and so right that anyone
would immediately see its value. This is not true. The need for
mediation is greater than the demand; and if you are to make
your career in mediation, you must be strategic, thoughtful,
thorough, and self-evaluative in your approach.
Nina Meierding
healthy dose of risk tolerance, a solid business perspective, and faith
in yourself.” Chris Moore, who specializes in dispute resolution at
CDR Associates in Boulder, Colorado, says, “One of the things that
makes the biggest difference is a track record. Which means that
it’s harder for a new mediator to leap in and have a successful business. You need to estimate that it’s going to be about five years
before you have a sustainable practice—if you get there.”
Five years?
For Geoff Sharp, a successful commercial mediator in Wellington, New Zealand, the first few years were anything but glamorous.
“My story,” he says, “involves lonely days at the afternoon movies
in my first year of practice, wearing suits to an empty office and
putting the kids’ school fees on Visa. Seven years later it involves
doing rewarding work in my chosen field and telling wannabe mediators to get staunch, do the hard yards, and realize this is no ordinary profession with established pathways to practice.”
Getting a track record of successful settlements entails having
clients—and that means courting contacts, and that means getting
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out there and doing the hard marketing: selling yourself, but in the
most effective and personable way possible. And, for many, it also
means learning how to run a business and keep it going on a very
short shoestring. Often it means working more hours than you sleep
and staying sharp enough to do it all again the next day.
The majority of people who say, “Hey, I could do that!” and
complete a forty-hour basic mediation course quickly discover that
making a living in this profession is not nearly as easy as it looks
from the outside. In fact, it’s not easy at all. Sooner or later, those
for whom the hard work outweighs the fun drop away.
NOT FOR THE FAINT OF HEART
As the old saying goes, “Many are called; few are chosen.” Pursuing
a truly successful mediation career is not for the faint of heart. As
Geoff Sharp says, mediation is no ordinary profession—and there
is no one golden road to success, financial or otherwise. Each of the
relative handful of super-successful mediators has his or her own
road story to tell. Some left successful litigation practices because
helping people resolve disputes without rancor felt better than arguing one side over the other. Philadelphia lawyer-turned-mediator
Ben Picker recalls, “I became a lawyer primarily because of my desire
to work with individuals in a collaborative effort to solve their problems. Until I began my mediation practice, the greatest satisfaction
I received from the practice of law was from my work on public
interest and pro bono matters. As a mediator, far more so than when
I was a trial lawyer, I engage in a collaborative effort to solve problems and in a process where the people are as important as the
issues. As a consequence, I feel more than at any other time in my
professional life that I am adding value to the profession.”
Some, like former insurance professional Cliff Hendler, left actuarial or accounting careers because they found a truer calling in
working with people around the same issues they used to resolve on
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paper. Others, like Chris Moore’s business partner Bernie Mayer,
found their way to mediation and dispute resolution from the helping professions—teaching, social work, psychotherapy—bringing
their training and sensibilities to resolving personal or community
disputes or to working with social issues on a larger scale.
All, however, have what has been called a “unique ability” for
mediation. They are passionate about what they do, and doing it
comes naturally. If you agree with all—not merely most—of the following statements, you’re echoing the feelings of every top-tier
mediator I know:
• I love mediating, and I’m energized by it.
• It’s easy. When I’m in the middle of a mediation, everything flows.
• I always get good results, and I often get better results
than I’m expecting.
• I experience personal growth from my work in mediation. The more time I spend on it, the more powerful it
becomes.
• I get positive feedback from clients and colleagues
about my work.
• Mediating, thinking about mediating, and being a
mediator give me an overall feeling of satisfaction.
• I can’t imagine being happy doing anything else for a
living.
Successful mediators enjoy meeting new people, talking with
them, and learning about them. They get energy from social interaction and seek it out. Most intuitively understand “how to make
friends and influence people.” In some sense they are salespeople,
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Doing Good and Doing Well
The major reason that I and my colleagues at CDR Associates
entered this field was our values about resolving disputes, not
to get rich. We wanted to promote effective collaborative
decision making and support the peaceful resolution of serious differences.
For me, I can do work that is related to social justice and
building peace and it’s congruent with my values—and I can
make a living at it. It’s pretty amazing. But I am not alone in
this. Most of the people in this field are very value driven.
The people I know who work in the public policy and dispute resolution field have a very high level of value motivation. They’re concerned about the issues in the arena they
work in. They’re also concerned about developing collaborative solutions, solutions that are transparent and cost-effective,
and they see it also as a way of promoting democracy—it’s a
nonadversarial form of democratic decision making that
meshes with more traditional legislative or administrative
decision making. The level of participation by key parties, the
quality of input, and the degree that customized integrative
solutions are developed that have consensus support make
outcomes far superior to normal legislative or administrative
decision-making processes.
Chris Moore
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and the product they are selling is peace between parties. Surprisingly—or perhaps not so surprisingly—many describe themselves as
“conflict averse.” They may be hotshot negotiators, juggling five
parties with five points of view and getting them to settle, but they’d
rather pay sticker price for a new car and drive it off the lot than
haggle with the dealer to get the best deal. Often that’s the reason
for leaving a law practice. They receive much more satisfaction from
helping parties reach a mutually satisfying resolution than from
ensuring that one party “wins” a case at the expense of another.
WHAT TOP-TIER MEDIATORS
HAVE IN COMMON
If you aspire to a flourishing, lucrative practice in the field of mediation or dispute resolution, you will do well to emulate the men and
women who are in that position right now. In my experience, toptier mediators have the following in common:
• We love to mediate, and we’re very good at our job.
• We inspire trust.
• We cultivate champions, developing relationships with
people who are in a position to refer cases.
• We work hard.
• We charge more than the going rate, even for routine
cases.
We’ll look more closely at all of these—and other important
issues, including marketing, business models, money, and more—
throughout this book. Right now, let’s touch on each of these
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!
An Undiluted Passion
Dwelling in the field of mediation, as I have since 1988, has
been not only a source of intense interest but an undiluted
passion for me. What is it about this new but really very old
form of conflict resolution that seems to still have me firmly
in its grip? While it is true that I am paid well, particularly
when mediating large complex and multiparty cases, it’s certainly not just the money.
Prestige? While I have had my hotshot periods, mediating
flashy cases and fending off the press, being president of this
and that, I seem to be learning some humility. While I used
to say, “I settled that case,” I now understand that I’m really
a guest, managing the process with as light a hand as possible,
and it’s the parties and their lawyers who settle cases in mediation, not me.
“I dwell in possibility—/ A fairer house than prose—/
More numerous of windows / Superior—for Doors—.” These
lines from Emily Dickinson got me thinking about what it is
that fascinates me so much about mediation. Much of the
allure, the kick, the deep satisfaction and insight into the
human psyche as we struggle with conflict is . . . the abundant
presence of possibility, all those windows and doors offering
creative paths not just to resolution, but sweet closure, sometimes life-altering relief; the tantalizing choice in the settlelitigate decision between certainty or uncertainty. Getting to
be a part of all this, each case and the cast of characters different from the last, getting to experience the human drama
of change: a “fairer house” indeed.
Harry Goodheart
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fundamental factors and what top-tier mediators have to say about
their work.
We Love to Mediate
Harry Goodheart, working in Florida and North Carolina, has been
a successful mediator for more than seventeen years. Even after
nearly three thousand mediations, in addition to trainings and seminars, he calls his practice “an undiluted passion.” Like most successful mediators, it’s not just the money that brought him to
mediation and keeps him there.
Money is the scorecard, but it can’t be the whole ball game.
Along with most mediators I know, I have worked pro bono if a dispute calls for it. A few years ago, for example, I was struck by a
photo of a family on the cover of a legal publication. The parents
claimed that their son had been discriminated against on his high
school baseball team because he was Jewish. This dispute between
the family and the school and the coach had entered high-powered
litigation;—the lawyers representing the family were from one of
the top firms in Los Angeles, and they were handling the case pro
bono. The case appealed to me—I was Jewish, I was a mediator, I
had attended Dodger fantasy camp—and I felt that I might be able
to help. I decided to call the lawyers both for the family and for the
coach and the school district to see if there was anything I could
do. The lawyers knew of me, and they were happy to accept my
offer to mediate the case pro bono. We were able to avoid court, settle the case, and smooth out some emotional issues for all the parties. It was a very satisfying experience for me and the kind of case
that I strongly feel those of us who are in the top tier should be taking on more often.
Ultimately, the only true measure of success is our own sense of
satisfaction. But unless we are truly and purely altruistic, that personal feeling of success will be reflected in a more tangible outer success: we will make a good or even great living doing what we love
to do.
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I View My Work as a Calling
I am not entirely sure why I have been successful while other
very talented mediators have struggled, but I would guess that
these are the contributing factors:
1. I genuinely like working with lawyers, have been very
active in the bar, and am relatively well known among
lawyers. I was president of the county bar association
and have served on the board of bar examiners and on
lots of bar committees. I have done plenty of Continuing Legal Education (CLE) speaking, and I continue to
do so.
2. I regularly advertise in bar publications and occasionally write articles. My ads are simple reminders that I
am available and are not full of the usual adjectives.
They include a photo. I find that when I meet people
for the first time, they recognize me and seem to know
me because of the ad.
3. I treat nearly every contact I have with lawyers and
businesspeople in the community as a potential opportunity to explain what I do and how I can be of service.
4. I view my work as a calling and am dedicated to lifelong
learning and improvement. I try to treat each case, no
matter how mundane, as an opportunity to provide a
service that uniquely suits the needs of the parties. The
feedback I receive from lawyers seems to indicate that
they notice and appreciate this.
Susan Hammer
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People Trust Us
Perhaps the most important key to being a successful mediator is
that your clients and potential clients—whether they are lawyers,
helping professionals, families, or community leaders—feel they can
trust you to be fair and to help them grapple with the life-changing
issues that arise in mediated negotiations.
All top-tier mediators will tell you that inspiring trust is paramount. “The mediator must be able to find connections with the
parties so that they feel like this person can help them work through
!
The Biggest Fear
The biggest fear most people have is that they’ll be taken
advantage of. So any marketing message must include the
emotional appeal, “You will not be played for a fool in my
office.”
Most of what mediators are taught is self-defeating. In
many situations one or the other of the parties feel they’ll be
at a decided disadvantage. If you talk to a mediator and you
feel you’re not a good negotiator, and the mediator says, “I’m
going to be neutral,” you’ll feel that you’re going to get screwed.
Mediators have been taught to say this, and it sounds good, but
it scares the hell out of people.
Good mediators can overcome that because they have a
presence, despite their words, that people can trust. The best
mediators know how to pick up on cues that a person is anxious, and they work to sell the message, “You’re not going to
lose in this mediation.”
Robert Benjamin
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difficult issues—a personal bond,” explains Chris Moore. “If people
are going to be in a lifeboat on a stormy sea, they want someone
with them they trust and have some connection with. But they also
don’t expect you to be totally partial to them—they expect you to
be fair. And they hope you can help them talk to the other side,
people whom they have historically found to be difficult to talk
with. You facilitate and design a process that helps them talk and
reach agreements.”
In my own work, I try to cultivate trust in all my interactions
with potential clients, from first contact to final settlement. At the
outset, when they inquire if I can help, I begin by talking to them,
asking questions almost as a doctor would, trying to “diagnose” their
conflict by learning more about what’s driving it. And I listen.
Often mediators assume they need to “sell” themselves to clients.
But when you let others do the talking, you’re showing concern for
their pain and respecting their needs—you’re not trying to sell them
anything. By the end of the conversation they understand that you
care and that you can solve their problem. And once you’ve gained
their trust and they’ve booked a place on your calendar, you do
everything you can to ensure that you keep their trust throughout
the mediation process.
We Cultivate Champions
A passion for mediating and terrific natural skills can take you only
so far. You need to cultivate champions—influential people who
believe in you as a mediator and who are more than happy to help
you get your name out there to larger groups. I have been fortunate
enough to have had several important champions who paved the way
for me, introducing me to important potential clients and polishing
my reputation. If you have even one such champion, you can consider yourself fortunate indeed. But note: they will not always come
into your life by chance. You need to cultivate these relationships.
Early in my career, I met and made friends with a lawyer who
was known as the “godfather” of employment law, a really powerful
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!
Success
There are different kinds of success. For some people, having
a job that allows you to focus on your chosen work is successful. Making a lot of money is another kind of success (although, as a social worker and the child of two social workers,
I’ve never had that as a goal). For me, what’s successful is that
I am able in my work to help people deal with the conflicts
they’re facing. Successful means that people ask me to provide
help that is constructive and appropriate to their situation,
and that I am able to provide that help and make a living by
doing so.
Bernie Mayer
force in this area. He saw right away that mediation was a good
thing, and I thought he might be a champion for me in the employment arena. He had an organization of like-minded employment
lawyers, and from time to time he invited me to their meetings to
speak about mediation. I couldn’t have asked for a better platform
or intermediary. He was an influential person among a lot of people. Having this respected professional singing my praises and introducing me to potential clients was much more effective than any
number of cold calls I might have made.
I am lucky to have another of my champions on my side; being
on the bad side of powerful and influential people can be an instant
career killer. Once a year, a couple of lawyers I am friendly with
invite about five hundred trial lawyers to a big meeting where they
do a blow-by-blow review of all the arbitrators and mediators in
town—and by now there are hundreds of them. Still, they go
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through them one by one, saying, “Stay away from this one” or
“This one’s great.” Fortunately, they have always recommended me
at these meetings, and that has gone a long way toward encouraging others to try my services. After a while, more and more people
retained me as their mediator, until I reached a critical mass in the
marketplace and became established. Being established is the breakthrough everyone in this business strives to achieve.
We Work Hard
Many newcomers to mediation think it’s going to be an easy way to
make a buck—or at least a lot easier than the career they want to
leave. But successful mediators, virtually without exception, work
hard—all day and almost every day. Rod Max practices in Alabama
and Florida. He says, “There are a lot of individuals who want to be
mediators. They’re great lawyers, judges, businesspeople—but to
establish the network that gets you cases and fills your calendar
takes a lot of work. A lot of work! I have dedicated myself to working this on an everyday basis. I’m motivated to assist lawyers and
their clients.”
“You have to be committed,” says Toronto’s Rick Weiler. “Lots
of people are getting certified, but the vast majority fall by the wayside because they think it looks easy—access to the field is easy,
and mediators look like they have it made. But they’re not prepared to do what’s necessary to get to the point where they would
be broadly acceptable to a critical mass of lawyers. It’s about understanding how the process works and being prepared to commit to
it. It’s like anything else. If you are setting the goal for yourself that
you will be in the top 5 percent, you have to work hard, develop a
strategy, continually upgrade your skills, and have the drive to keep
going.”
“You can’t do this part-time and be successful,” explains Pittsburgh mediator Robert A. Creo. “The people who are really successful work hard.”
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!
On the Power of Persistence
Successful mediators are persistent—they hang in there, doing
what it takes for as long as it takes to make sure every mediation settles. This tenacity carries over to their career as a
whole. Despite setbacks, during lean years, they persevere,
doing what they need to do to ensure they stay in the field and
enjoy growing success.
One of the biggest criticisms I hear is that a mediator gives
up too soon. Good ones follow up with phone calls, a second
session—they hang in there. They have tenacity.
Michael Landrum
I work hard and know what I’m doing. People know that I will
work really hard to get a case settled. Their past experience
with me and my reputation tell them that I’m committed to
the people and the process.
Cliff Hendler
Perseverance and following up are critical factors for mediators. People hire me because I won’t give up on a case. Even
if a case doesn’t settle on the day, people know I’ll stick with
it and follow up.
Rick Weiler
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A Day in the Life
One of the ongoing challenges of a full-time mediator is the
calendar. During travel and breaks, I return telephone calls,
follow up on unsettled cases, and communicate with my office
via cell phone. My phone has a voicemail. I have my office
call me to leave substantive messages when I am out. I respond via telephone or email when the schedule permits it.
Here’s my calendar for one recent Monday:
9 A.M.–noon: Mediation of a two-party personal
injury claim involving a woman
injured in an auto accident.
12:15–1:30 P.M.: Meeting of the bar association dispute
resolution committee.
2:00–4:00 P.M.: Adjunct professor teaching international dispute resolution at the University of Pittsburgh School of Law.
4:30–6:00 P.M.: Meeting with the University of
Pittsburgh Medical Center risk management team to review upcoming
educational conferences for lawyers
and submission of new cases to
mediation.
6:00–7:00 P.M.: Quick meal and travel. Return calls
on the road.
7:00–8:00 P.M.: Presentation on asymmetry in mediation to Western Pennsylvania Council
of Mediators.
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8:30–10:00 P.M.: Watch TV show 24; read New York
Times.
10:00–11:00 P.M.: Review submissions for next day’s
case.
11:30 P.M.–midnight: Review and respond to emails.
Robert A. Creo
We Charge More Money
It’s no secret: the most successful mediators charge more money
than the middle tier of mediators in their region. When parties are
truly committed to settling a large case, they are willing to pay what
it takes to get the job done. And when people like to say that you’re
a mediator who always gets the job done, you have every reason to
be paid what you are worth. That’s why the top 5 percent of mediators charge in the top range of fees, and that’s why they get it.
Counterintuitive? Yes. But if you can back up your fee schedule
with results, it works. Clients are often more than willing to commit to a higher-priced mediator with a great reputation because they
want to make sure the job gets done right. For the very same reason, you’re more likely to hire a higher-priced but guaranteed excellent firm of builders to remodel your kitchen. And you’re certainly
going to look for the best orthopedist in town to repair your knee—
hang the cost. Admittedly, there’s some degree of snob appeal
involved. Just as many lawyers prefer to be seen driving BMWs
rather than Toyotas, they also prefer to tell their clients that they’ve
signed up “the best mediator in the business”—and point to your
fee schedule to back up their claim.
Setting high fees takes a bit of fearlessness—you must be willing to lose some business in order to get a different kind of case.
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Do You Have What
It Takes to Be a Success?
1. Successful mediators love to mediate, and they are
very good at their job.
You live, breathe, eat, and sleep mediation. You’d rather
be mediating than doing any other job. Mediating gives
you intense satisfaction, and you get better at it every
day. If this describes you, super success may be within
your reach.
2. Successful mediators are likeable and inspire trust.
You enjoy people, and people enjoy being around you.
Clients, former clients, and prospective clients give you
continual feedback about how great you are at your job,
how many good things they’ve heard about your work,
how safe they feel about putting their clients’ lives in
your hands. If you can inspire this level of trust, you
might make it to the top tier.
3. Successful mediators cultivate champions: they make
relationships with people who are in a position to
refer cases.
You understand intuitively who will be able to help
you expand your network, and you actively seek out
relationships with them. You create a mutual admiration society that spills over into all of your champion’s
social contacts. If people are hearing good things about
you from influential others, your business should
increase exponentially.
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4. Successful mediators work hard.
You work hard in mediations to ensure a successful
outcome for everyone, and you work hard outside mediations to build your network of contacts, market your
business, increase your knowledge and skill base, and
share your expertise with others. You understand that
a career in mediation is not for those who enjoy long
vacations and twelve hours of sleep every night, and
you wake every morning eager to get to work.
5. Successful mediators charge more than the going rate,
even for routine cases.
You know your fees are higher than what other mediators around you are charging, but you’re worth it. If
clients want you—that is, if they want their case settled
by the best mediator in business—they’ll understand
that paying your fee is an investment in a successful
settlement.
Rick Weiler says, “I price myself aggressively for our market, so I
don’t get the garden-variety case. The people hiring me believe
there’s a special reason to pay more for me.” And Cliff Hendler says,
“I charge a lot of money. I priced myself out of the smaller-end market. I concentrate on bigger cases. And it works—people pay it.”
GETTING TO THE TOP
No matter how high he or she rises, every mediator starts in the same
place: at the bottom. Simply getting started in the business is basic
math: you begin with one case and meet two lawyers. If you’re successful, those two lawyers tell more lawyers about you. Your business
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!
How to Have a Successful
Career as a Mediator
Be open to opportunities. Be willing to invest your time and
capital. Be patient. Give back. The best thing you can do, in
spite of all the above, is to do good work as a mediator. If it’s
meant to be, it will be.
Tracy Allen
picks up, you schedule and settle more and more cases, and somewhere along the line—breakthrough! You’ve reached a critical mass
in your contacts, and the ripe fruit is dropping off the trees and into
your hands.
Is it that simple? No, far from it. If you want to climb to the very
top of the pyramid, you’re going to have to put some of your life on
hold and pour massive amounts of energy into achieving that goal.
It’s not easy, and it doesn’t happen overnight. If this sounds like
some kind of fun, welcome to the club!
TOP-TIER STRATEGIES
1. Be willing to work hard.
If you want to be among the most successful mediators,
you must be willing to narrow your focus and devote a
tremendous amount of energy toward your goal. This
means early mornings, late nights, busy days, and—at
least in the beginning—less time to spend with family
and friends.
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2. Never give up.
The road to success is not straight and sure, and it doesn’t
happen overnight. If you begin your career by accepting
the fact that will be working toward your goal for a few
hard years, you will be much more likely to persevere
and—eventually!—reach the top.
3. If mediation is not your passion, find another career.
If you are not willing to eat, sleep, and dream mediation—and enjoy virtually every minute of it—you will
not be able to stay the course long enough to become a
highly successful mediator. Think about this seriously: If
you have the passion and dedication real success in the
business takes, welcome to the club!
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2
Be Yourself
Inspiring Trust, Projecting
Authenticity, Honing Your Skills
Who you are as an individual and your approach
toward conflict are hugely important. People want
to spend a day with someone they want to spend
a day with.
Cliff Hendler
A
few years ago, I found myself overbooked, and I recommended
a fellow mediator, Bill, to take over a case I couldn’t fit on my
schedule. I’d never seen him in action, but I knew he settled cases,
and I felt confident that he could handle this one. After the case
settled, I ran into one of the lawyers on the case.
“How did Bill work out for you?” I asked.
The lawyer looked uncomfortable. “Well,” he replied, “the case
settled. But I don’t think we’ll be using Bill again.”
“Really? Why not?” I knew this was a complex case, and I’d
heard that he’d handled it well.
“Frankly,” the lawyer said, “I just couldn’t stand the guy. He
knows what he’s doing, and the parties seemed satisfied, but he just
didn’t come across as all that genuine to me. Sorry.”
You can have A-1 mediation skills, you may understand other
people, you may have booked speaking engagements far into the
future, and you may even settle a fair number of cases that come
your way—and you can still find yourself with an empty calendar
because people just can’t seem to relate to you as a person. Being a
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successful and highly paid mediator is not just about what you do
in the mediation room. It’s a whole package—doing the work, getting the clients, keeping the clients, getting more clients, and keeping the whole ball rolling—and what holds this package together
and gives it life is you. If you—the genuine human being inside the
mediator suit—are not truly present in every encounter, inside or
outside the conference room, you will find it difficult if not impossible to succeed in this highly competitive profession. One mediator puts it simply: “The best advice I can give you is, ‘Be yourself.’”
YOU ARE WHAT
YOU’VE GOT TO OFFER
Mediation is an unusually personal profession. Good cardiac specialists with an abrasive beside manner still manage to find patients, and
CPAs who can do complicated tax work but have trouble carrying on
a conversation find plenty of business. But mediators who have a
broad grasp of theoretical knowledge and have learned advanced
mediation skills, yet don’t click with people, will never find much success. “Mediation is a people-oriented and personality-driven business,”
says Los Angeles mediator Steve Cerveris. “Attorneys often come to
us because they respect us and because we can effectively relate to
and communicate with their clients and with them.”
As every mediator soon learns, there’s nothing cut and dried
about our field. You’re dealing with grief, hurt feelings, great loss—
almost no matter what the subject of dispute is, deep emotions are
involved, and they all have to be resolved before the case settles,
whether it’s a divorce, a malpractice suit, or a highly complex water
rights issue.
As a mediator you must make a personal connection with everyone in the room. At the end of every successful settlement, you’ve
shared a piece of yourself. “You’re meshing your energy with other
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Be Yourself
!
Build Trust
It takes many good experiences to build trust, but only one to
blow it. Do your homework.
Gary Furlong
people’s energy, and possibly changing their life,” says Alabama
mediator Michelle Obradovic.
Clients book you for a case because they want to hire you specifically. They feel that you are the one mediator who can see them
through their dispute. This means that you can’t just be an image
of what you think you should be. You’ve got to be comfortable in
your own skin and be able to project that comfort outward. How do
you do that? Square one: be true to yourself. Be yourself. Apply the
experience that comes with doing cases day in and day out. People
will sense your sincerity and continue to use you.
TRUST, TRUST, TRUST
As everyone knows, the key factor in real estate is location, location, location. In mediation, it’s trust, trust, trust. “The main quality parties look for in a mediator,” says Oregon mediator Susan
Hammer, “is someone they trust and think is fair, someone they feel
regards them in a positive light.” The following sample of how satisfied clients describe their experience with successful mediators,
taken from the Web sites of some of this book’s contributors, reflects
this feeling. People respond to these mediators on a personal level
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and trust them to handle what may be the most critical hours in
their lives with respect and care:
“[She was] fair and balanced in her approach to both of us. She
made the divorce process manageable in the midst of our
chaos and sadness.”
“Thank you for your efforts yesterday. I appreciate your candor,
sensitivity and wisdom. I think your gentle guidance throughout the day made all the difference in the world, both in terms
of a fair resolution and allowing my clients to get through a
very difficult process.”
“[His] patience and insight are invaluable.”
“[He] takes cases personally and he does his very best to try to
get them resolved amicably.”
“It was truly a pleasure meeting you. You have an excellent rapport with people.”
The importance of trust in our business cannot be overstated.
Mediators work to ensure that the parties, who invariably begin the
negotiation suspicious of one another and fearful of being taken
advantage of, move steadily toward a position of mutual trust that
brings settlement. If the parties do not feel they can trust you, they
will stubbornly hold to their positions. And if, upon meeting you,
they intuitively feel they can’t trust you, they will not hire you.
Period.
A mediator who inspires trust is halfway to settling before the
negotiation even begins. “A good mediator can overcome people’s
innate fear of being taken for a fool because they have a presence
that people can trust,” explains Robert Benjamin. “The best mediators know how to pick up on cues that a person is anxious, and
know that they need to sell the idea that ‘You’re not going to lose
or compromise any interest you may have in this mediation.’
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!
From Lawyer to Mediator
After twenty-five years of trial practice, two factors came
together to cause me to look in other career directions. The
first was a comment from a client whom I ran into a year after
getting the best trial and appellate result I had ever obtained
for a client: “I don’t really even want to talk to you, John,” he
said. “Seeing you reminds me of the worst time of my life.”
“Don, I don’t understand. We got everything we asked for.”
“No, John, you got everything you asked for. But I don’t
remember you ever asking me what I wanted.”
The second factor grew out of a litigation team meeting
where our insurance defense team reported that our clients
were paying outside firms to audit our bills. That, of course,
would only occur if our clients did not fully trust us.
In the late 1980s, concerned about the remedy-specific
nature of litigation and the growing client concerns, I started
researching alternatives and, of course, came across the growing
literature about mediation. I then began efforts, along with many
others, that culminated in our state supreme court’s adopting
rules that allowed trial judges to order parties to mediation.
John Van Winkle
“Parties in a mediation are very much like horses,” he explains.
“They are prey animals, ready to run at the first perceived false
move or threat. If you understand this, you can approach your parties the way a horse whisperer might approach an untamed horse,
slowly and firmly—using their nature, not fighting it. If you have to
have the parties’ buy-in, then you have to find a way to ‘tame’ them
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without breaking their spirit, to get them to relax enough that they
can consider shifting their perspective.”
What will backfire every time is simply pretending to be nice.
Earning trust is not about agreeing with everything your client tells
you. It involves being open to learning their objectives, and confirming to them that you understand their viewpoint. From there
you can give them an authentic assessment and provide direction
and leadership.
AUTHENTICITY
Authenticity is the bedrock on which trust is built, but it can be a
tricky concept to explain. People perceive you as being authentic
as a mediator when everything about you says that you are working
from your deepest values and will do everything in your power to
ensure that everyone in the room is treated fairly. At first hearing,
this seems fairly straightforward. But, as Robert Benjamin explains,
“This stuff is a hell of a lot more ambiguous and in a shifting conflict terrain than most people want to admit.”
Every top-tier mediator understands the necessity of ensuring
that people trust you without question even as you engage in the
unavoidable manipulation and deception that are inherently part
of every successful settlement process. The best mediators will tell
you that, ultimately, they are prepared to do whatever works to help
the parties settle.
Does this mean we’re dishonest? I don’t think so. We’re all guilty
of some form of deception every day. Turning down a dinner invitation with a false excuse; answering “Fine” when a coworker asks,
“How are you doing?” when in fact you are having a tough day; or
offering thanks for a gift that you really don’t want are all considered acceptable forms of deception. Our culture reinforces the idea
that telling a white lie is preferable to blunt truth if it results in a
positive outcome. Deception is tolerated in negotiations because
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there, too, it can be used constructively and productively to develop
concessions that lead to agreement.
Benjamin has thought and written extensively about authenticity. He points out, “Although authenticity requires some measure
of honesty, it is not necessarily congruent with being scrupulously
honest all of the time. Although authenticity is essential to build
trust, it may well be that people recognize that they may need to be
deceived and expect and tolerate some measure of artful sleight-ofhand to help them manage.”
Here’s an example that should be familiar to most mediators.
The plaintiff’s attorney in an insurance case tells me that they’re
ready to settle right now for $1 million. But the insurer has already
told me in confidence that he’s authorized to offer up to a cap of $2
million. Now, I could just carry the $1 million offer to the insurer,
and both parties would be happy—for the moment, at least. Ethically, I can’t tell the plaintiff that the insurer is ready to go $2 million and to hold out for more. My main concerns are that everyone
is treated fairly, that the deal is settled amicably, and that no one
feels cheated. So far, I’ve worked hard to build a reservoir of trust,
and I’m pretty sure I can keep both parties with me until we reach a
more equitable settlement. I choose to keep the mediation rolling.
My strategy is to conduct a full-blown hearing, which gives everyone the sense that he or she has been heard. A hearing is not actually necessary for me in terms of understanding the case, but if I
were to short-circuit the process and split the baby, somebody might
feel that he or she has left something on the table. When I then
break up into private caucus sessions, I am very comfortable directing the negotiation and making suggestions about what people
should ask for and offer so that the settlement ultimately occurs in
a range that is equally satisfying to both sides.
Is it strictly honest? No. Is it authentic? Absolutely. We all leave
with a good feeling. Plaintiff and defendant feel fairly treated and confident that no money was left on the table. And I enjoyed keeping all
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The Operating Definition of Authenticity
Many people confuse authenticity with “honesty” or living out
of your “authentic self.” But this denies the fact that, in life as
well as in mediation, self-delusion and deception are
inescapable. In mediation, the operating definition of authenticity is your ability to connect with people, gain their trust,
and build up that kind of capital so that when you ask them to
consider doing something they are resistant to, they will do it.
Robert Benjamin
the balls in the air as long as necessary and catching them all safely
as they dropped.
Benjamin illustrates perhaps the ultimate example of projecting
authenticity with the story of Terry Waite, a hostage negotiator who
was later taken hostage himself. In 1983, Waite was asked to negotiate the release of a British hostage with Libyan leader Colonel
Omar Ghadafi, generally considered to be an “evildoer” and “madman.” In fact, his first meeting with the Libyan leader compelled
Waite to cross a stadium filled with the bodies of people Ghadafi
had had killed. Waite, a devoutly religious man, could not find
moral ground with Ghadafi. But he was able to put his personal
beliefs aside and find his authenticity in a deep commitment to
principle: he did not want play anyone for a fool, even Ghadafi.
And the colonel could see that this was true. And because Waite
sincerely wanted the hostages released, he was able to strategically
empathize with Ghadafi.
This is a subtle point—we’re not talking Machiavelli here; the
ends don’t always justify the means. Your authenticity is not rooted
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in your commitment to absolute truth or to always telling each party
exactly what the other is thinking. Rather, it’s rooted in your sincere desire to get the best settlement possible for all parties and in
your commitment to seeing the process through to the end. The
very best mediators feel this, mean it, and project it in everything
they do. As Steve Cerveris says, “A lot of PR and spin goes on, but
if it’s not from the gut, parties will sense it.”
FOLLOW YOUR OWN PATH
One reason mediation is so much fun is that it encourages creativity and innovation. The “man in the gray flannel suit” mentality is
not a part of our image. The best mediators, in fact, are known for
their unique qualities, reflected in their sometimes twisting career
paths. “I worked for five years as an actor with an emphasis on comedy,” says Toronto’s Gary Furlong, “then produced theatre for two
years, then moved to the States and worked as a mortgage broker
for five years, started consulting in customer service and organizational effectiveness, and then became a mediator and got a Master
of Laws. You know—the normal career path.”
Well-known mediator Tony Piazza has a background in law and
a third-degree black belt in Aikido, “a Japanese martial art based
on principles of resolving conflict without escalating violence.”
Nina Meierding uses her background as both a trial lawyer and a
schoolteacher to get to the heart of family mediations. London’s
Tony Willis, probably one of the most respected mediators worldwide, was previously the head of one the major litigation firms in
the United Kingdom. Other top mediators have their own stories
of finding their place in mediation.
“I started practicing law in 1976 in general commercial litigation in a large law firm,” says Susan Hammer. “After doing litigation for a few years, I thought, ‘There has to be a better way to solve
problems. It’s so lucrative for the lawyers and generally so unsatisfying for the clients.’ I also saw a lot of cases where the conflict
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You Have to Know
Something About Something
You have to have a substantive background. Insurance, medicine, law—and just because you’re a lawyer doesn’t mean you
have a strong background. You have to know something about
something. People look to have a problem solved by someone
who is an expert in a certain area. You have to know the area.
And, of course, you also have to have contacts in that area.
Cliff Hendler
between the lawyers was kind of a hobby for the lawyers that the
clients were paying for. It seemed to me like a bad deal.
“So,” she continues, “I started doing unconventional things like
making an appointment with opposing counsel and trying to settle
up front—breaking though conventional barriers. It was remarkably
successful! At that time people were paying lip service to mediation, but the field had not yet begun in earnest, so I didn’t really
think I could do this as a career. I trained as a mediator in 1988 and
mediated maybe one case a month. For the next ten years I went to
seminars on mediation, but I continued to litigate. Finally, in 1998,
I left the law firm and started my own mediation practice.”
Draw from Your Strength
Many—some say far too many!—came to mediation from careers
in litigation or as retired judges. Even though I have to admit to a
personal bias toward law and the belief that a good mediator needs
to understand the law, I am the first to admit that not every great
mediator is also a lawyer. Cliff Hendler capitalized on his back-
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ground in insurance claims handling to mediate insurance litigation, and parlayed that experience into mediating complex cases
ranging from medical malpractice to sexual harassment. Chris
Moore has a Ph.D. in political sociology and development, focused
his graduate work on dispute resolution techniques, and enjoys an
amazing career settling environmental, organizational, and international disputes. Bernie Mayer began as a social worker and psychotherapist. All of them scaled the pyramid by drawing on their
own field of knowledge and pool of contacts to create a unique
niche and a satisfying career.
“I became successful because I came in early on,” Hendler
explains. “Also, I had a strong background in a substantive area, the
insurance field, where there were a lot of disputes. The insurance
industry is built on fighting claims and settling other claims. I knew
hundreds of people who had respect for me because of my professionalism and my evenhandedness. When I said, ‘There’s this thing
called mediation . . .,’ they gave me a try. It’s getting the first case
that’s difficult!”
You can become super successful without having to enter a
whole new field of expertise. In fact, the best thing you can do for
yourself is build on what you know.
Michael Landrum came to mediation from a solid career working in-house for several Fortune 500 corporations and as a private
practice litigator. “I began my professional life as a managementside labor lawyer negotiating union contracts,” he says. “Part of my
training was to avoid having someone else make the decision. So I
always worked at trying to settle things. I like seeing that there are
two sides to every story. Rarely, especially in a business dispute, is
everybody all right or all wrong.
“What is fun to me,” says Landrum, “is the creative effort to try
to help people reconcile competing and conflicting interests in a
way acceptable to both of them, rather than just attempting to predict who’s going to win and why. In civil litigation, if one side is 51
percent more believable, they win. Which means that 49 percent
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One Thing Leads to Another
My background is in child welfare and psychotherapy. Back
in 1977–78, when I was running a residential treatment center for children in Boulder, I participated in demonstrations
against the Rocky Flats Nuclear Weapons facility near Boulder. I met someone who pointed me toward a training of people in nonviolence, and there I met my soon-to-be business
partner, Chris Moore. We hit it off and started doing nonviolent peacekeeping and conflict resolution training.
Chris was asked to provide mediation training and asked
me to help. I thought this was an interesting way of bringing
together my professional and social change interests.
Eventually, four of us decided to quit our day jobs and do
this full time. We started CDR Associates, a nonprofit conflict
resolution agency, and I’ve been a partner there for twenty-five
years.
When CDR first started we did small community-based
cases—small neighborhood disputes, conflicts over noise
between fraternities and the university, and so forth. We
started a family mediation program and started offering family mediation trainings. Then I got interested in applying
mediation to child protection, which became the basis for
my doctoral work. And then we realized that we wanted to
do more—organizational disputes, public policy mediation,
labor-management work. Then we started doing international work—helping other countries develop their own
conflict resolution capacity.
Bernie Mayer
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of what happened doesn’t count. The people who are in the mediation actually solve the problem.”
The best thing you can bring to your mediation career is what
you already know. If you were a social worker or therapist, you
undoubtedly learned skills relating to gaining insight and handling
people in emotional situations, and you may have a lot of insight
into divorce, health issues, sexual harassment, collaborating to
achieve goals, and coming up with creative solutions. Even if you
were a lawyer who disliked litigating, you developed some sort of
expertise as a litigator—in employment disputes, health issues, labor
law, or intellectual property. Whatever your experience has been,
value it: it’s the foundation you will build on to make yourself visible and viable in the overpopulated mediation market.
Create Your Own Market
Years ago, I had a friend who was an advertising executive. His
angle on promoting a service or product was positioning: you’ve got
to position the product. Well, as a mediator, you’re the product.
According to my friend’s theory, that means you should position
yourself in the mediation market. I think a better approach is to
choose your position in the market according to your real expertise.
For example, if you’ve been in labor law for years, people in the
workplace dispute area know you, and you know them; you’re in a
natural place to position yourself as a specialist in mediating
employment disputes. In a world of commercial mediators, you
stand out to clients looking for an employment dispute mediator. I
didn’t put myself out as a general commercial mediator. I knew I
wanted employment cases, so I said, “I do employment law.”
The rookie mistake is to try to be all things to all people. If you
say, “I mediate litigated cases,” what does that really mean? This
statement is so general that it doesn’t leave footprints in wet sand.
When you choose a position—”I choose to mediate intellectual
property cases [or employment cases or family law cases]”—you are
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You Can’t Be All Things to All People
You can’t be all things to all people. In an increasingly sophisticated mediation market, the lawyers who are hiring you are
going to have their preferences, and they look for a good mix
of chemistry, trust, and communication.
Rick Weiler
making a statement people can remember and hang on to. And
when you make that statement to the right people, they’ll remember you when the time comes.
Find a Gap and Fill It
I learned early on that if you can fill a gap in the marketplace, people will find you. At the beginning of my career, I was able to fill a
large gap by helping create a market for mediation. Companies
wanted to save court costs, they weren’t doing it through the traditional menu offered in court, and I and other pioneers were able to
fill that gap by creating the mediation outlet. That opportunity is
long gone, but you still have the opportunity to find a gap that’s
ready to be filled.
Find specific niche areas that haven’t been exploited and make
them your own. For example, I encouraged my associate to develop
expertise in cases concerning the Employment Retirement Income
Security Act (ERISA), the federal law governing employment benefits (which includes retirement, disability, health, welfare, and
other employment-related benefits) and intellectual property;
ERISA is an up-and-coming area, and my associate can get in on
the ground floor.
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DEVELOP YOUR SKILLS
Sometimes new mediators think of mediation as an offshoot of whatever it was they were doing before. The very best mediators know
better. “It’s a mind-shift,” explains Nina Meierding. “Mediation is
not an adjunct of law or therapy, it’s a distinct profession. You have
to treat it as something unique you have to learn about, not as a
given because you’re ‘good with people.’ You have to be willing to
go to school, intern, do work to learn new skills. The baseline is having respect for it as a separate profession. Sometimes people go to a
forty-hour course and expect to emerge as a full-time mediator. No.
Be prepared to invest in time, classes, meeting people, changing your
office to look like a mediation office. Think about how many years
of not making money you are willing to put in.”
Basic Training
It’s hard to believe that in little more than a decade and a half, the
number of professional trainings for mediators has gone from near
zero to what seems like a new one every minute: basic mediation
training, divorce mediation training, conflict resolution training,
collaborative law training, negotiation training, cross-cultural training, advocacy training, advanced mediation training. Trainings are
offered by organizations, colleges, and individuals. You can be
trained in person, by audio, by video . . . Should you do it? Yes.
Why? Because it’s important to begin thinking of yourself as a professional from the beginning, and that means doing whatever you
can to improve your abilities in the field. Medicine, law, teaching,
social work—these and other professions have continuing education requirements to ensure that professionals stay up to speed on
new techniques, knowledge, and discoveries in the field. Until our
field imposes these requirements on us, we owe it to the profession
to impose them ourselves.
Is one training all you need? Not by a long shot. Training is no
substitute for experience and personal drive.
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Evolve
Forty hours of training do not a mediator make. If you’re an
art student, the teacher can teach you about color and light
and brushes and strokes. But when it comes time to stand in
front of the canvas and paint, no one can teach you that.
You’ve got to get in there and evolve your own art. Mediation
is a dynamic process. The way I do mediation today isn’t even
the same as the way I did it last year. Mediation is always
evolving. So continuing education is critical.
Robert A. Creo
“Most people start with a forty-hour training course,” says Cliff
Hendler. “Take the training. Just because you think you’ve been
mediating all your life with family or coworkers doesn’t mean you’ve
got the skill set you need to be a professional mediator. The training gives you a framework and understanding of what you’re doing
and why you’re doing it. I’ve taken hundreds of hours of advanced
training in mediation and negotiations. But,” he continues, “training only gives you the building blocks you use to build your own
style. Think of it this way: you learn the alphabet in school, but
your handwriting style is your own.” And good handwriting only
develops over time, with care and practice.
Beyond Basic Training
Mel, a senior attorney who had basically retired from trial law and
decided he was not yet ready to retire altogether, decided that he
wanted to learn what this mediation business was all about, and
signed up for a six-day course from me. He really enjoyed it and
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began taking other courses that I taught over the years. Finally, I
noticed he had signed up for a course he had taken some years ago,
so I gave him a call.
“Mel,” I said, “maybe you should take another course—some of
my stories might seem stale.” He said candidly that he had forgotten the punch lines of most of the stories and wanted to remind
himself. “I learned so much the first time,” he added, “and enjoyed
it so much that I don’t mind revisiting the same lessons again.”
If you’ve already had your forty hours and you’re a working mediator, continuing education is a must. Many successful mediators
provide trainings as part of their product, but that doesn’t mean
they’ve learned all they need to know. I learn something new from
every mediation I do, from every class I teach to other mediators,
and from books. I read books on mediation, of course, but I also read
books on social psychology, negotiation, influence, and leadership,
as well as other books, including novels, that have nothing to do
with mediation at all. And I take away a valuable gem from almost
every one. I know I’m not alone in this. “I’m always reading new
business books, medical books, and textbooks as they come out,”
says one mediator, “because I want to keep up with how ideas are
developing. I get my ideas by being inspired by other people.”
You never know where you’ll find your next great insight into
your work. Several years ago, I even got new insights into mediation from my participation in a stand-up comedy class—a place
where I had never expected to find similarities at all. But as it
turned out, the similarities between stand-up comedy and mediation are remarkable. Among other things, I discovered that the
emotional association a comedian has with an audience is the same
as the one a mediator has with the disputants. A comedian who
ignores the temperature in the room and simply recites memorized
jokes is going to bomb. A mediator who follows the basic format
taught in Mediation 101 and who doesn’t consider the individual
quirks and concerns of the specific parties in a negotiation is never
going to connect with them.
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If you are new to the field, consider finding a mentor. (We’ll talk
more about this in Chapter Five.) At the very least, ask mediators
you admire if you can observe them at work. Many students from
Pepperdine Law School have shadowed me over the years. Their
questions and feedback about the process put me more in touch
with what I am trying to accomplish for the parties. They make me
think twice about my approaches and encourage me to use good
judgment. Aside from that, clients seem to get a kick out of having
an observer present. They feel almost honored.
IT’S YOUR CALLING
“Mediation is my personal journey,” says Michelle Obradovic. “I was
born to it. I don’t feel like I ever had a choice but to do what I do.
It’s me putting myself out there, completely open, and trying to help
people be the best they can be.” It should now be abundantly clear
that for top-tier mediators, mediation is far more than a career: it’s
a lifestyle and a calling, and everything in our life speaks to it.
“Get training and continually train, read, and work on practicing skills, even if you are not mediating much,” advises Susan Hammer. “The great thing is you can use mediation skills in everyday life
whenever there’s a difference in point of view. Practice what you’re
preaching all the time to get it ground into you. It will become part
of you, a way of life. This will make you more credible; you will start
to carry yourself as a mediator, to think and speak as one.”
TOP-TIER STRATEGIES
1. Be yourself.
There are literally thousands of mediators in the market,
and more are coming up every day. But there’s only one
you. It’s your unique background, talents, skills, and personal strengths that people will be drawn to. Let them
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see the real you in every encounter. Don’t try to drive
the ball like Tiger Woods if you don’t have the club
head speed.
2. Practice authenticity.
Your authenticity is rooted in your commitment to
truth and to getting the best settlement possible for all
parties, and in your absolute willingness to see the process
through to the end. When you are working from a place
of authenticity, people feel—rightly—that you are doing
your best for them from the best possible intentions. In
turn, they will be motivated to stick with you and return
again and again.
3. Create your own market.
Jumping into what looks like the most lucrative field
simply because that’s where the money is, is probably
the worst thing you can do for your career. Build your
own market out of your own interests and expertise, and
people will seek you out for exactly what you’re best at.
4. Learn from everything.
Forty hours of training is a start, but don’t stop there. The
best and most successful mediators are always learning—
from classes, trainings, and seminars; from conversations
and online chats with colleagues; from reading and
absorbing everything they can get their hands on; and
from every mediation they do. Be a shark: never stop
swimming.
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3
Invisible Marketing
The Essence of Networking
The most effective marketing is doing your best on
a case.
Rick Weiler
T
wo lawyers meet over a game of golf on a Saturday afternoon:
“I’ve got a potentially nasty malpractice suit that really needs
to settle out of court. Do you know any mediators who can handle it?”
“I’ve used Ted on a couple of real bears. One of the parties actually walked out in the middle of negotiations, and Ted managed to
reel him back in without breaking a sweat.”
“Yeah, I’ve heard he really sticks with a case until it settles. Fran
told me he worked magic for her more than once. But he charges a
fortune, doesn’t he?”
“You get what you pay for. What difference does it make, particularly if the case settles?”
“Say no more. I’ll give him a call this afternoon.”
Closing cases—having a reputation as a mediator who gets things
done—really is the most effective marketing you can do. Next to
great negotiation skills, this “invisible” marketing—when word about
your prowess as a mediator gets out and you’re suddenly on everyone’s radar—is what powers some people to the top. For those who
are natural-born salespeople, knowing how this kind of networking
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Keeping Clients Happy
Marketing is a process, not an event. It happens all the time:
while you’re mediating the case and in everything you do. At
base, it’s the process of creating frontal lobe awareness: when
the customer is ready to buy, they think of you.
Studies done by bar associations prove over and over again
that lawyers get more business from existing clients than from
new clients. So you have to keep existing clients happy while
you slowly but surely acquire new clients. The goal in business
terms is to keep the customers happy and coming back. So,
from a business point of view, keeping the customers—the
lawyers, not the parties—happy is more important than jamming through a settlement. If you settle a case and the lawyers
aren’t happy, they won’t be back.
Ralph Williams
works is intuitive. For the rest of us, fortunately, it’s a skill we can
work on and learn.
GIVE PEOPLE A
STORY TO TELL ABOUT YOU
In his best-seller Blink, Malcolm Gladwell writes about how we
unconsciously absorb impressions and make decisions in the blink
of an eye—and tend to stick with these decisions despite information that might prove them wrong. Uncomfortable as it may be for
us to contemplate, people select mediators in the same way. They
generally don’t engage in weeks and months of research, collecting
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and collating pages of data. Instead of using hard facts, they often
base their decision on intangibles—your reputation as a closer, the
personal impression you make, your “buzz.” As Rod Max says, “It
begins before you start. If you don’t have a reputation for trust, fair
judgment, the knowledge of the process, you’re not going to get anywhere. Some big companies hire dozens of mediators, but the truth
is that mediation is a personalized thing: ‘I want Rod Max, not Joe
Schmo.’”
If you give people a great story to tell about you, your reputation
not only precedes you but markets you. Better yet, have someone
else provide the comment or story line about you, and use it in your
profile. A great employment lawyer once described me as “tenacious
as a German shepherd with a steak.” I consider that one of the best
compliments I’ve ever had—and it makes a great story line for people to tell about me. I’m not the only mediator who sticks with a
case until it settles—far from it, in fact—but this colorful epithet is
a lot more fun for people to recall than “tenacious.”
What stories do you know—or tell—about the superstars in our
field? No doubt you’ve heard about the guy whose career is in the
stratosphere. He charges five figures per diem, wins multimilliondollar settlements regularly, and has houses all over the world. He
may really be the greatest mediator of all time, or he may not be
doing anything in the mediation room that you wouldn’t do. But
he’s got the buzz, and people clamor to do business with him.
In this sense, he has much in common with other popular products. A lot of people want the latest-model iPod, whether or not they
already have a thousand songs on their computer. They also want
that BlackBerry hanging off their belt, even though they don’t travel,
make a lot of calls, or send much email. And they’ve got to have that
super-fast computer because they’re sure it will make them do their
work better. Whether we’re talking iPods or mediators, everybody
wants what everybody else is buying—and never mind the cost. In
fact, some clients feel that paying higher fees means they’re getting
the top of the line. They just gotta have it. One top mediator puts
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it bluntly: “When you get to some level of these cases, to pay the
mediator $100,000 is a drop in the bucket. If people are concerned
about my fee, then (1) their case does not have much value, and (2)
they’re not looking for a process that deserves my expertise.”
Compelling, positive stories about you and your work can and
will create a steady stream of clients fighting to get on your calendar. It’s all about reaching critical mass, or—to borrow another
phrase from Gladwell—finding your personal tipping point. As Geoff
Sharp says, “Word of mouth is the way work comes in the door.”
Stories come from life experience. Get involved with people and
communities that are of interest to you and can potentially be
sources of business, such as bar associations or human resources
organizations or whatever communities form your interest area. Listen to what people have to say, and incorporate their needs into
your repertoire. Share your stories with them, and they will share
them with others. Be an author—write articles that say interesting
things in an interesting way and let other people quote you. Author
an article that appears on a conflict resolution Web site. Volunteer
as a committee member in your local trade associations. Become
involved in a case that has international dimensions. These are all
things you end up putting in your biography, and they put meat on
the bones of your story as you do them. Set a list of five things you
can do in the upcoming year that will get your name in lights. They
don’t have to be huge projects, but in some small way they should
serve to make your name more visible to prospective clients.
Here’s an added bonus: you are creating paths that lead to people you haven’t met and things you haven’t thought about yet. If
you volunteer to be on the courts committee, for example, you will
meet leaders of all the bar associations and the judges who will be
consulting with you on how to make the court system better. The
person you talked to on the trial bar may be pitching you right now
as a high-profile mediator—just because you got involved. All of a
sudden, you have become a resource in the community and have
elevated your status almost effortlessly.
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The Four R’s
Remember the three R’s? My approach is sort of the four R’s:
Results that lead to Reputation that lead to Referrals that lead
to Repeat business.
Paul Monicatti
THE MEDIATION TIPPING POINT
“People are interested in outcome,” says Robert Jenks. “If you never
settle a case, you’re not going to get used a lot.” Sometimes, all it
takes is settling the right case.
Some years ago, a mediator friend of mine who had been toiling
in the middle tier of the pyramid for some years had one big miracle
malpractice case that he pulled out of the fire. The plaintiff and
defendant had been in litigation literally for years, and the animosity was thick. They had agreed to mediation as a last-ditch measure,
but no one held out much hope for success. But my friend worked the
case and did the impossible: not only did the parties settle but tears
flowed, recriminations ceased, apologies ensued, and money changed
hands. In short, he did his job and did it well—just as he’d been doing
for years. The two attorneys, however, were wildly impressed. They
started using him regularly rather than going straight to litigation.
And they sang his praises to anyone who would listen, calling him
the “miracle man.” That was the tipping point for him. Before he
knew it, his calendar was filled, and it has stayed filled to this day.
Another friend dedicated six weeks to resolving a multiparty
construction defect case. She stayed on the phone with dozens of
lawyers every day, until all the pieces of the puzzle were put together.
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The Way to Get Business Is to Mediate Well
I believe that good mediators don’t have time to meet and
greet. The way to get business is to mediate well. I’ll start mediating at 7:30 A.M., and it may be midnight until we have the
direction. It may get resolved at 2 A.M. Then you’ve got to follow up to conclude all terms. If you’re mediating three days a
week, the other two days you’re designing and following up. It
may be that I’ve got to get on the phone with the parties after
we’ve already met—I’m the first person on their mind. The
bottom line is not my advertising; it’s the work I do.
Rodney A. Max
In the process, she developed a relationship with each attorney, and
her dedication and tenacity were impossible to miss. She ended up
receiving referrals from every lawyer on that case, and it launched
her practice.
Los Angeles mediator Ralph Williams advises, “Fish where the
fish are.” And that’s good advice. But you don’t have to catch all
the fish in the sea; you just have to catch a couple of live ones. As
my friends’ experience illustrates, lawyers multiply exponentially.
A handful of satisfied clients who like you on one case will each use
you on another case, where you’ll meet more lawyers who’ll use you
on other cases, where you’ll meet more lawyers! As Susan Hammer
says in something of an understatement, “Every contact you make
in the bar potentially leads to something. I’ve had lots of good relationships with an awful lot of people. No matter what ads you run,
word of mouth is what helps you ultimately.”
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FIRST IMPRESSIONS COUNT
It may seem shallow, but it’s almost inevitable: we naturally tend to
equate physical attractiveness with such traits as talent, kindness,
honesty, and intelligence, and unconsciously assume that attractive
people possess these traits. Perhaps because of this, people who are
perceived as attractive are generally more persuasive at getting what
they want and changing others’ attitudes. Interestingly, among successful mediators, few would be mistaken for models or movie stars.
Most of us are just regular people who have this in common: we
know how to make a great first impression. Understanding the
importance of putting your best foot forward, and knowing how to
do it, can take you a long way.
!
Would John Wayne Negotiate?
Why do so few people actually go to mediators first? Why do
they think they need to go to lawyers first?
Would John Wayne negotiate? No. That’s our basic culture.
John Wayne is not just a movie star; he is an icon—he is what
many Americans say they want to be. He is the incarnation of
the statement, “You should come back with your shield or on
it.” Only the weak negotiate. So most people feel that they’ve
got to have a lawyer to protect them. They don’t trust themselves or like to negotiate, and want to leave it to the lawyer.
The marketing task is to let people know that negotiation does
not require selling out or compromising.
Robert Benjamin
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It is vital to make a phenomenal impression—not just a “good”
impression—at every point of contact with clients or potential
clients. That means looking your best, dressing your best, presenting the best genuine “you” possible. But you need to deliver a onetwo punch: package yourself well and follow up with the glow of
your genuine interest and intelligence. If people like what they see
and you welcome them sincerely, they’ll take time to discover what
else you have to offer.
LAWYERS ARE THE GATEKEEPERS
Unless you’re working in public policy or in another area of mediation where lawyers are less present in the process, the most direct
route to clients is through their lawyers. Lawyers are the gatekeepers of mediation. Everyone says this, and everyone is right.
“Most people call a lawyer if they are worried and want the problem solved—especially in the business world,” says Cliff Hendler.
“Businesspeople virtually never call their mediator. And the lawyers
go to the mediators because lawyers want to manage their risk.
Ninety-nine percent of lawyers don’t want to go to court. It’s risky
and costly, and most know that they’ll do much, much better in
negotiated resolutions than in trial.”
“Mediators often underestimate the importance of being known
to the gatekeepers of conflict (often lawyers in my world),” says
Geoff Sharp. “We are not like other professions, as we are not interchangeable. That is why it is hard to leverage mediation practice—
the gatekeepers use me because I am me, and go to Joe down the
road because he is him.”
Think about it: almost regardless of your specialty and client
base, lawyers hold the keys to the cases you want on your calendar.
They’re the ones who know and choose the mediators. Of course,
mediators who have made it to the top of the pyramid generally do
not have to hustle to find cases. By the time they’ve reached the
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Other Gatekeepers
One reason lawyers are successful is that they work within the
primary system developed for dealing with conflict in our society. Lawyers are the gatekeepers for a lot of conflicts that pay
for mediation. But the legal network is not the only way to get
business. Public policy mediation is usually funded through
government agencies. The health and mental health communities are often referral sources. Direct connection to people actually in the disputes is another way. For people starting
out, working for a conflict resolution organization is a good
way to make contacts.
Bernie Mayer
stratosphere, cases find them. But no one has a lock on the top, so
for most of us, client development is an ongoing process—and, truth
be told, one we tend to enjoy.
“Marketing is an interesting proposition for us mediators who
are within the legal community,” says Sharp. “Marketing is not
something that lawyers easily accept, either when they do it themselves to clients or when it is done to them. I think a mediator in
the legal world needs to be understated about marketing and
remember they are still working within the legal environment. Providing value and content is the key: marketing with something in
it for the recipient.”
Los Angeles mediator Jeff Kichaven agrees. “I try to communicate to my client community—other lawyers—that I remain concerned about what they do and what their troubles and worries are.
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I don’t present myself as someone trying to sell them something, but
as someone who is trying to help them with their problem and who
understands what their world is about.”
In the more visible kind of marketing we’ll talk about in the
next chapter, always remember this vital community. Speak to their
groups, write articles for their journals, keep up on legal news,
attend their events, and consider their interests. Lawyers not only
want a reasonable outcome but need to look good in front of their
clients. When you make that happen for them, they’re yours for life.
SHARED SIMILARITIES
CREATE CONNECTIONS
“You have a dog too? No kidding. I love my dog. We’ll have to get
them together some afternoon.” Is it that easy? Sometimes.
We tend to enjoy the company of people who are similar to us
or who feel somehow familiar—whether in our opinions, personality traits, background, or lifestyle. This doesn’t mean that you have
to repeatedly clone yourself to match every potential client. Rather,
you can draw from your authenticity to try to find some connection
that you share with the other person.
I give my clients every opportunity to connect with me as soon
as they walk into my mediation center. Their eyes may be drawn to
the 1956 Sandy Koufax baseball card on the wall or to a bookshelf
full of really interesting books or to a unique display of materials
connected to my father’s 1959 patent for a machine that automated
the installation of draperies—and, of course, I’m happy to talk to
them about any or all of these, because each reflects something I
enjoy. “You like baseball? So do I!” I find that something in the array
of memorabilia in my office is bound to appeal to someone, and
inevitably this creates a sense of connection.
Similarities, no matter how small, give the other person an additional reason to buy into what you’re selling—be it why mediation
is better than litigation in this case, why the case is worth what you
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say it is, or even why your fee is reasonable. For example, you’ve
already had a very pleasant conversation with a new client about
your golden retrievers, how much you enjoy golf, and the fact that
you’re shopping for a new Beemer much like the one she owns. As
simplistic as this may sound, you’ve created common ground
between you. Now your new client is thinking, “Hey, we’re not all
that different—maybe his point of view isn’t as far-fetched as I
thought it was.”
INCREASE FAMILIARITY
THROUGH REPEATED CONTACT
Your familiar presence at meetings, your brief phone calls to say
thanks or check in on the progress of a case or just touch base . . .
top mediators understand intuitively that increased familiarity
through repeated contact with people tends to increase your appeal,
making your success in mediation and in client development more
likely. “I do a lot of premediation contact,” says Michael Landrum.
“Phone calls, ‘house calls’ to meet with the lawyers in their offices
days or a week or two before the mediation. They like that because
it’s not in the throes of battle during the mediation, when tension
is high.”
“When a case is over,” says Robert A. Creo, “whether it settles
or not, face-to-face contact is good. Engaging in a dialogue with the
lawyers is good. Some people send thank-you notes.”
If you begin a mediation with lawyers you’ve spoken with only
once, over the phone, they may not feel familiar enough with you
to be receptive to your ideas. It’s hard to talk dollars to settle the
case with someone who feels like a stranger. You are much more
likely to be persuasive on every level if you have reached out and
made personal, face-to-face contact with the parties well before the
negotiation. Repeated contact on neutral ground puts all of you at
ease, leading the way to a more productive and profitable negotiation and future work together.
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SOLVE THEIR PROBLEM
My formula for networking is somewhat counterintuitive. When
you meet people who might be useful in helping you get new
clients, the last thing you should do is tell them about your mediation practice. Instead, follow the same advice dating mavens gave
to teenage girls in the 1950s: ask them questions about themselves.
In fact, creating relationships is all about asking questions. And you
have to offer a swap: learn what their problem is and offer to help
them out of it.
One day, for example, over a long business lunch, I noticed that
my friend, normally an easygoing guy, was drumming his fingers on
the table. I asked, “What’s up, Mike? You seem tense.”
“I’ve got some cases pending that are threatening to sink the
ship,” he said. “If I lose these cases, that’s it—I might as well just
kiss my firm good-bye and go look for another line of work.” He
downed what was left of his drink and started looking around for
the waiter.
“I’m really sorry to hear that,” I said. “Do you think any of your
clients might be open to mediation? Settling those cases instead of
litigating them might get you out of the rough.”
“I don’t know, Jeff,” he replied. “Maybe.”
“Well, who are the opposing attorneys? Maybe I have some history with them that we could play off here to turn this thing around.”
He looked up. “Could you really do that? I know your calendar’s
probably jammed up.”
“Let me see what I can do, Mike,” I said. “I’d like to see you get
out of this mess alive.”
In my experience, people will buy mediation services only if they
have a problem that needs fixing. Discovering and addressing what
potential clients need is the most direct route to client development. Mike eventually brought me those cases. The key to closing
the deal was in my knowing that what he really needed was some-
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one to sympathize with his predicament, understanding that mediation offered a clean way out of the problem, and assuring him that
I would be able to take care of the problem.
“What Can I Do to Help?”
For me, the client-mediator relationship is based on a helping paradigm: attorneys are in pain because, as was true for my friend Mike,
losing a particular case threatens their career. Parties are in pain for
a multiplicity of reasons:—their business is in trouble, they’re going
to lose everything in a divorce, they’ve suffered at the hands of the
health care system and someone is going to pay, they were screwed
over by their employer and want what’s coming to them, they lost
a child to a drunk driver—and they want to be reassured that I can
make that pain better by somehow evening the score. They don’t
want to know how I’m going to do it; they just want to believe that
I’ve done it many times before and can do it for them.
Like a doctor making a diagnosis, I ask questions, probing gently,
trying to find the source of their pain. When they see that I really do
understand their problem and care about seeing that it gets solved,
it’s only a few short steps to getting their case on my calendar.
Show That You Care
“Why do I keep having this nightmare, Doc?”
“Why don’t you tell me why you think you’re having that nightmare?”
If you’ve ever read a cartoon about a psychiatrist, you’re familiar
with the technique called reversing: answering a question with a
question. When a client calls with a potential case and asks, “Have
you ever handled a case involving a widget manufacturer?” I never
say no. Most cases, as we all know, are not really about widgets or
improper surgical techniques or malicious spouses. Invariably, something deeper is at work, and that’s the level on which we operate in
a mediation. So instead of answering the potential clients’ questions
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directly—and perhaps inadvertently inviting them to look elsewhere—I focus on engaging them. So I respond with a question:
“Why don’t you tell me more about the case. What’s going on?”
I’m trying to diagnose their condition, so right away I want to
learn more about the conflict and what’s driving it, and the whole
time I’m positioning myself as a professional. Because honestly, it
doesn’t matter if I’ve never handled a case exactly like the one
they’ve got. What they really want to know is whether I can get
them out of a painful situation.
If you try to sell yourself by talking at length about all the cases
you’ve settled in the past, you’re probably going to lose a substantial number of clients you might have had. But if you let them do
the talking—and if you truly listen and respond to what they are
saying—they will feel your concern and respond in turn. By the end
of the conversation, they will see that you understand their problem, and you will already have begun building the reservoir of trust
you can draw from as the case goes forward.
CREATING VALUE
Whether I’m actively negotiating or in premediation sessions, I’m
always working to provide direction and encouragement, giving
clients new tools for solving problems, guiding them around potential land mines, and trying to create new opportunities. I think of
this as creating value.
In fact, creating value might well be the foundation for getting
clients and settling cases. The main focus is on providing leadership
to parties so that they don’t walk into the minefields that brought
them into the dispute. When marketing your services, you can create value by finding out from the parties what their pain threshold
is, what’s causing them the most concern, and what has to happen
in order for them to select you as the person who can help them
solve their problem. Once you have this information, you can innovate regarding how to solve their problem.
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Let potential clients know what’s in it for them. For example, a
client once told he that he’d like to use me on a big case, but felt
that the defense might view me as too expensive. So he figured he
would suggest three less costly garden-variety retired judges as mediators. But he didn’t have a lot of confidence in these guys, and he
was afraid the case would end up in court—and if that happened,
his job was on the line. Like most people in this kind of pain, he
gave up some important information: he was in deep trouble. The
case had to get settled. Armed with that information, I knew I was
already halfway to closing the deal.
I reminded him that if the defense agreed to use me at the “exorbitant” rates I charge, that might actually serve as a signal to the
plaintiff lawyer that the defense was serious about his case and that
they might come to the table in a manner he would find appealing.
You could see the wheels turning in the client’s mind. Once he saw
the situation in this light, he was easily able to convince the other
side to select me as the mediator.
When clients are concerned that they have a bet-the-firm kind
of case, why would they go to you? Because they trust you to resolve
the case successfully. So if you intend to charge high-end fees for your
services, you’ve got to be a bet-the-firm kind of mediator—somebody
who is willing to stand up and get the job done in a complex civil
action, no matter how long it takes. Clients need to know that what
you do best is pull their fat out of the fire. I always tell them, “When
it looks like the deal is going south, that’s when I do my best work.”
When it looks like there’s no hope for a case, I can get creative, finding options and surprising ways to make things work.
Inspiration is great when it happens, but you can’t truthfully tell
clients that inspiration always strikes when you most need it! Beneath inspiration, then, is what every mediator is really selling:
hope. Your mantra needs to go something like this: I’m the person
you need when things are falling apart around you, when you need
somebody to pick up the pieces and get the job on track. Of course,
you always have to back up that claim with results.
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CLOSING THE DEAL
Ralph Williams puts his marketing philosophy simply: “We don’t
sell mediation services; we sell closed cases.” And that’s a key point.
People are willing to invest money in settling a case. Because my
fees are on the high end of the spectrum, most clients seek me out
only when they’re ready to settle. If they are willing to make this
investment in my time, then even before the case begins, I know
it’s going settle.
Practically speaking, before you close the deal and decide to put
a new case on your calendar, make sure the client has the budget
for it. You may be in the mediation business because you love it—
and I hope you are—but if you’re going to make money as a mediator, you have to make sure your clients are prepared to pay serious
money for your services. If they’re not, well, you may not be the
right mediator for them at this time.
If they do have the budget and you feel you can settle their case,
then closing the deal is like the last hand in a high-stakes poker
game.
“I know you can do the job, but I’m not sure my client will
spring for it,” more than one client has told me. “There are a lot of
good mediators out there who charge a lot less.”
“It’s up to you,” I respond, “but think of it this way: you can go
with a cheaper mediator, or you can spend more—and the other
party’s lawyer will pick up the other half. You’ll get a great mediator and a message from the other side that they’re all in. They’re not
going to spend all that money for a day’s work and not settle at the
end of the day.”
And what if we don’t settle at the end of the day? Well, when
that happens, I say, “Come back later, and we’ll finish up—no
charge.” And I stick with the case, by telephone and remediation
if necessary, until it settles. The clients appreciate it, and it becomes
another part of the story they tell about me.
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Elevator Talk
I am amazed that, without knowing a scintilla of mediation
theory, parties often reflect in the elevator on the way down
from the mediation. And what they say could be lifted straight
from a mediation textbook. In fact, I really do ask the lawyers
what their client said in the elevator as one of the questions
in my feedback form!
Geoff Sharp
REFERRING BUSINESS TO
OTHER MEDIATORS
“I want to thank you for recommending Jack to mediate that
employment case for me last month,” said Ann, a lawyer I’ve known
for years. “When you told me your schedule was full, I panicked. I
know I can count on you to make sure everyone gets a fair shake in
a negotiation, so I had some trepidation about going into this thing
with a new face. But he was terrific—he gained our trust immediately. Even the plaintiff’s attorney liked him.”
“That’s great to hear,” I replied. And I meant it.
“Don’t worry,” she smiled. “You’re still our top choice.”
I was glad to hear I was her top choice, but I was equally glad
that she liked my referral. If you’re successful, you’ll have a lot of
days when your calendar is so full you actually have to turn people
away. In this enviable situation, you’ve got to be confident enough
to make referrals to other top mediators and be willing to let go of
the client.
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Don’t be afraid to collaborate. Referring successful mediators will
result in exponential referrals because these mediators will refer
their clients back to you. I offer two caveats, however. First, make
sure the mediators you refer are willing to collaborate. Referrals to
people who want to hold on to clients as though they own them
will backfire. Second, the mediators you refer have to be great
closers;—don’t refer anybody who can’t get the job done. Always
make sure that the mediator you recommend is up to the challenge,
because his or her inability to settle a dispute may reflect on you.
Referring mediators you trust can actually be a good source of
referrals for you. Whenever I’ve given someone else’s name, the
client always agrees with my recommendation—it’s like a closed
deal because they trust me. And that mediator then feels free to
refer a case to me.
EMBRACE REJECTION
When the lawyer in the previous story said I was still her “top
choice,” I was flattered—but my response was well tempered by reality. I know that no matter how hard I try, I’ll never get everybody’s
vote. Mediation is an isolated world. For every case you get, there
are ten you didn’t. And you’re only selected after others are rejected.
It’s important to recognize that in this field, every new case is a
beauty contest, and people tend to be very discriminating about
whom they choose as the winner.
To be really successful you have to expect rejection and embrace
it. You must hold the view that when you’ve been rejected, it means
that someone who believes in you has tried to sell you. He or she
will keep putting your name out there, and eventually you’ll achieve
critical mass. I hear the statement “Oh, your name comes up all the
time” from people who have never used me.
Don’t let rejection get to you. You may be on every lawyer’s list
of three top mediators, but you’ve got to remember that there are
two other mediators up there with you. You just can’t take the deci-
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Leave Your Need for
Recognition at the Door
The mediation business in most markets is more about what
people think or perceive of you as a mediator than who (you
may think) you are. It is a high-touch, highly personal business. What you may think of how well you did on a case may
be contrary to the subsequent story the participants tell. Mediators are invisible and forgettable, despite the great work and
service we deliver. People meet us when they are in conflict.
If the conflict resolves, it is no surprise that human nature
wants to put it in the past and move on. People desiring to do
this work should not expect or need to be revered, rewarded,
or recognized. We do it because it is a higher calling, and we
earn the right by accepting the unbounded responsibility it
requires to be good.
Tracy Allen
sion personally. It may be based on timing or scheduling, or the
would-be clients just plain prefer another mediator over you that day.
EXPRESS GRATITUDE
If you show up for mediations with the attitude that you’re doing
the parties a favor by saving them time and money in litigation,
you’d better not expect any repeat business. No matter how big you
get, you can never take clients for granted.
I can’t tell you how many big-money cases I have had that settled when I succeeded in encouraging one of the parties simply to
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apologize to the other or to express gratitude in an uncomfortable
situation. The same principle applies to developing your client base.
Cast your bread upon the waters, and it will come back to you a
thousandfold. Express real gratitude to the attorneys or to the parties
to demonstrate that you appreciate their selecting you, and they will
come back to you again and again.
“Successful mediators care,” says Gary Furlong. “They care about
all the parties, and respect the fact that the parties have difficult
decisions to make during the process. There are many mediators
with good expertise or technical skills, and depending on the style
of mediator you are, those are the price of admission. But caring,
really caring, sets successful mediators apart.”
Robert Jenks says, “After the mediation I always thank the people I worked with. ‘I was honored; it was a pleasure to work with
you.’ This is an important key to building a successful practice.”
First—and last—impressions count! No matter how good the outcome of mediation is, people will initially base their decision to hire
you on the first, and they’ll keep hiring you based on the last. That’s
why a simple thank-you at the end of the process is so important.
“When you can sincerely say, at the end of a mediation, ‘Thank
you for giving me the opportunity to be part of your life, your situation. I’m pleased we got this done today. I hope you got some closure and you can move on,’ this kind of humanity becomes part of
your marketing,” reflects Robert A. Creo. “It comes across to the
participants. But it has to be sincere. You have to feel it.”
Some mediators make phone calls to participants, others send
thank-you notes. The form is flexible, but it is the sincerity that
people remember. From time to time I send clients a personalized
email cartoon, a quick creative acknowledgment and thank-you for
their participation. Other times I might drop a note or email to one
or more of the participants thanking them for their professionalism
in the way they handled the case. The most successful mediators
make expressing gratitude part of their daily activities—not because
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they are manipulative sons of bitches but because they are truly
grateful to be able to do this kind of work and get paid real money
for doing it! When you derive real satisfaction from your work, people see it and want to hire you again.
TOP-TIER STRATEGIES
1. Give people a story to tell about you.
When it comes to setting yourself apart from the competition, word of mouth is everything—buzz counts.
Never underestimate the power of making yourself an
interesting character in your own story. Empower other
people to be the champion of your story by giving them
something of value to talk about: mediate well, demonstrate your expertise in articles or talks, join organizations
in your community of potential clients, and share ideas
with the people you most need to know.
2. Make a good first impression.
This advice isn’t just for prom dates; it’s crucial for mediators. In our profession we are selling ourselves. People
will not want to spend hours in a negotiation with a person who doesn’t seem to fit in with the group, and they
will make that snap judgment the first time they meet
you. You never know when you’re going to make the
acquaintance of your next important client. Make the
effort to look your best and project your most professional
self at every opportunity.
3. Remember that lawyers are the gatekeepers of mediation.
Unless you are working in the area of government and
public policy, the vast majority of your cases will come
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through the kindness of lawyers. Lawyers are the gatekeepers of mediation, and lawyers—not their parties—
are your clients. Do everything possible to ensure that
you create and keep a good rapport with them: join their
organizations, read their journals, become friends with
them.
4. Build relationships through increased familiarity and
frequency of contact.
We all want to spend time with people who feel familiar
and with whom we share common interests or points of
view. Your clients are no different! Encourage connections by sharing your own interests, and do everything
you can to be a familiar and welcome face or voice on
the phone.
5. Create value whenever possible.
In mediation, the main focus of value creation is on leading the parties around the minefields that brought them
into the dispute. When marketing your services, you can
create value by helping clients find a way out of whatever pain they are in that brought them to you in the first
place—a rancorous and complicated case that seems impossible to resolve, a case that will cripple the law firm if
it doesn’t settle, and so on. When they see you as the person who can bring them out of this darkness and into the
light—and you are able to back up that perception with
good work—you have created value for all concerned.
You’re not selling yourself; you’re selling your ability to
solve the problem.
6. Remember that you’re selling closed deals.
Clients would not be coming to you if going to court was
their first option. That means they are looking to you to
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be a closer—to settle the case amicably and fairly. But
before you can do that, you have to close the deal that
involves selecting you as their mediator. Think of it as a
high-stakes poker game and make sure they’re ready to go
“all in” with you before you start negotiating. If they’re
willing to pay your fee and you’ve got that commitment,
you’re more than halfway to settling before you’ve even
begun.
7. Embrace rejection and express gratitude.
When you don’t get a case, you can’t take it personally.
If you do, you’ll be feeling pretty bad most of the time!
Accept rejection philosophically and move on. When
you settle a case, be sure to express gratitude to the parties for sticking with you to the end, as well as to the
attorneys who brought the case to you. A simple thankyou, sincerely expressed, is the right thing to do and a
good way to ensure that the clients will remember you
favorably next time—and perhaps it will mean a little
less rejection down the line.
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Getting Out There
A lot of people say, “I want to be a mediator, so I’m
gonna go get trained.”
Great. Then what?
“Well, then people will call me.”
No they won’t—not unless you get out there and
tell ’em. You can have the best fried chicken in the
world. But if you don’t have a sign, no one’s getting
off the interstate to eat it.
Robert Jenks
H
ighly successful mediators know they’re lucky to be where
they are. So when the top professionals talk about how they
got there, many can’t help but give credit to plain good fortune.
“In a word,” says Ben Picker, “I consider myself ‘lucky.’ I have
been chairman of a midsized firm, chancellor (Philadelphia’s word
for president) of the 15,000-member Philadelphia Bar Association,
and have served in leadership positions in numerous other civic and
professional associations. I have always written and lectured in my
areas of expertise. As a consequence, I was well known and well
respected as a leader in my profession and in the community even
before I embarked on my mediation career.”
Paul Monicatti also says, “I’ve been lucky. I was lucky enough to
get in on the mediation profession early and be in the right place at
the right time. I haven’t had to do much advertising or marketing.”
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I, too, have said many times that I was in the right place at the
right time, lucky to get in on the ground floor of an exciting new
area of practice. Yet no matter how lucky we are or how successful
we’ve been in the conference room and caucus room, we’ve all
learned that we have go to the extra mile to make ourselves visible:
doing whatever we can to get our names and faces and bodies out
there where clients and potential clients can see us, hear us, and get
to know us one-on-one. We can’t always count on the equation raw
talent + settled cases + sheer good luck = career success in a field as
crowded as mediation has become. In such markets as Los Angeles,
Toronto, Texas, Florida, and a few others, if you don’t add effective
marketing to the equation, you’re sabotaging your potential success.
Bernie Mayer puts the marketing task succinctly: “Do followups. Train. Consult. Teach. Write. Don’t just mediate.”
Ben Picker agrees. “I often tell individuals who have the training
and are ready to start a mediation practice that marketing is not a
sport for the short winded. In order to succeed, you must make the
same commitment to marketing that you hopefully have made over
the years for important projects on behalf of yourself or your clients.
“The choices you can make are highly individualized,” Picker
continues, “and you should make choices consistent with your own
personality. Writing? Training? Teaching? Networking? Advertising? Joining with other professionals? All of the above? Other activities? Again, these choices depend on your personality and strengths
and also will vary from region to region. All of these efforts will take
time. In order to succeed, you must be both persistent and patient.”
Michigan’s Tracy Allen describes just how much time these efforts take. “Initially, my fifteen-year reputation as a lawyer formed
the foundation for being able to build a mediation practice. I
invested (and still do) enormous amounts of capital in building my
practice—then and now—and it is time. My time. I have written,
spoken, networked, lectured, volunteered, et cetera, thousands of
hours in ADR [alternative dispute resolution] to establish a knowledge and experience base as an ADR service provider. I have immersed myself in the mediation profession.”
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!
Seasonal Marketing
There are times of the year when certain types of work come
more often. In Canada, it’s cold! When it starts to get warm
and you can put a shovel in the ground, construction projects
begin. So we always send out something around March to our
construction partnering clients.
Late August is a good time of year to market to law firms
because they’re all coming back from vacation.
Rick Russell
It is critical that you devote time to being present with the prospects who might hire you. Being present means actively participating in activities where your clients spend their time, not [merely
showing up and staying out of the action, waiting for something to
happen. Be involved with those activities. “I show up everywhere
and work the room,” says Michelle Obradovic. “I don’t go to a cocktail party and sit against the wall!” Even if you’re talking to one person all night at a meeting or a dinner, be there for that person as if
he or she were the most important person in the world. That one
contact could end up being your most important client.
WORKING THE BUTTERFLY EFFECT
You’ve probably heard of the so-called butterfly effect. The idea
grew out of chaos theory and was first popularized in 1962 in a paper
by Edward Lorenz titled “Does the Flap of a Butterfly’s Wings in
Brazil Set Off a Tornado in Texas?” The basic idea is that even
though things may seem random, everything is really part of an
exceedingly complex but interconnected system in which small
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Motivated by a Passion for Mediation
Motivated by a passion for mediation and my commitment to
the process, I began early in my mediation career to write, lecture, train, and network among others in the profession. Interestingly, I was not motivated by any particular desire to build
a practice. I simply wanted to learn from others and share my
experiences with them. I also enjoyed the collegiality.
Ben Picker
changes in behavior can cause large and unforeseen consequences.
I feel that the butterfly effect applies to marketing yourself as a
mediator: you can never predict the effect of your relatively small
efforts—a training, a speaking engagement, or even a conversation
at the airport while you’re waiting for a plane—but sometimes the
gains are surprisingly big.
It’s funny, but most of what I have come to see as “marketing
myself”—teaching classes, doing speaking engagements, attending
meetings of like-minded professionals and getting to know them
better—I always considered to be part of the fun of being a mediator. I love getting to know new people, hanging out with old friends
and acquaintances, and sharing knowledge with others who love
this type of work as much as I do. Much of the time I spend not
mediating is time spent engaging with others. What, they pay me
for this? And I get new work too? Great!
Get in Opportunity’s Way
In Arthur Golden’s Memoirs of a Geisha, the heroine reflects on an
accidental yet life-changing meeting: “We lead our lives like water
flowing down a hill, going more or less in one direction until we
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splash into something that forces us to find a new course.” We can
count on the fact that if we just live our lives, eventually we’ll bump
into things that send us in one direction or another. Instead of waiting for opportunity to knock, however, I prefer to get in opportunity’s way.
That said, I don’t mean you should approach opportunity mindlessly, hoping you’ll run into something. “You can’t focus on your goal
until you’ve defined it,” says Robert Jenks, and I agree wholeheartedly.
Before you begin to explore all the ways you can make yourself
visible, sit down and think hard about who you really are as a mediator and decide on the market niche you want to target.
Birds of a Feather Flock Together
So many mediators want to (and think they can) field any kind of
business that comes their way. They say proudly and loudly, “I mediate everything!” certain that variety is the key to success. But if
you’re vague about the focus of your practice, where do you go for
clients? You’ve just made the community you’re going after enormous—and faceless. Although doing so may seem counterintuitive,
you must reduce the area in which you’re seeking contacts by being
more of a specialist. Only then will you find a business arena you
can visit and revisit often enough to make an impact.
Think of it this way: birds of a feather flock together. If you’re
trying to fit into flocks of ostriches, ducks, robins, and flamingos,
what are your chances of finding a welcoming wing to usher you
into the group?
When you’re trying to pinpoint a specialty, start from what you
know. “Work with your strength,” says Gary Furlong. “If you come
from a legal background, cultivate the area of law you know best. If
you come from a human resources background, cultivate the organizational field first. Then get the training and experience in the
other areas you want to work in before going there as a mediator.”
The formula is fairly simple: decide who you’d like your clients
to be and then put yourself where they can see you. Study the pool
of potential clients. Look for a well-established, cohesive business
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Opening Up the Market
I view the mediation field very broadly—I don’t focus on one
aspect, such as personal injury or medical malpractice. I personally find that limiting in terms of my own interest and
growth. I ask myself, Who would find great value in getting
help with their issues? Where would a neutral third party
bring value? Then I talk to those people. Consequently, I not
only do personal injury and contract disputes but also work
with family businesses, partnerships, dysfunctional teams, joint
ventures, union_management, and others. This opens up the
market quite a bit.
Gary Furlong
community with trade associations and journals. You can also affiliate with people who don’t use mediators but who refer cases to
lawyers. “We write articles and do a lot of public speaking, from
brown bag luncheons to CLE programs,” says Dallas mediator Jeff
Abrams. “And, although I do not litigate anymore, I believe it’s
important to be a familiar face around the courthouse so that judges
and lawyers know me and keep me in mind.”
You can find many conference and trade association opportunities where the source clients are available. For example, associations
of corporate council members refer cases to large law firms to handle. If members of these associations know and trust you, they will
influence their attorneys who are litigating the cases in selecting a
mediator. I’ve had many cases referred to me by lawyers I didn’t
know personally but who told me their general counsel recommended me.
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If you’re interested in class action cases, once or twice a year all
the attorneys who do these huge cases meet in Las Vegas and spend
two days talking about class action and mass torts. For $200 or $300
you can attend these conferences and meet the people who do these
huge cases. I wish I had the time to attend all of these myself!
There are many such opportunities out there: claims adjusters
associations; such as RIMS (Risk and Insurance Management Society); risk managers associations; human resources professionals associations, such as PIHRA (Professionals in Human Resources
Association)—all of these are very influential in referring matters
to outside lawyers who handle employment cases. You can’t join
everything, but you can test the waters, and you can easily book
speaking engagements at these organizations. Identify your niche,
then spend some time in research and talking to people to identify
the two or three associations that work with lawyers so that you can
get them interested in you before they even go to their lawyers.
They are the source.
Make a Phone Call, Send a Note
It’s a truism that the last person you spoke to is the first person on
your mind. So simply making direct calls to clients, former clients,
and people you want for clients is a great way to remind them that
you’re there.
“At one point,” says Rick Weiler, “I had what I called ‘the lastminute mediation club.’ I’d send an email out to every lawyer on the
list, informing them of empty dates on my calendar for mediations in
the next two weeks. This kept my name in front of them—and we
always got new cases.” Of course, your approach doesn’t have to be
this formal. A simple call to say, “Hi, how’s it going?” can be enough.
And always remember your database. “Keep track of the lawyers
you mediate with,” says Weiler. “You build a practice by staying in
touch with them. Of the two thousand lawyers in my database, I see
some every month, some once a year. There is no more valuable
business asset than your contact database.”
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!
A Good Marketing Curve
I have a limited time to market, and I don’t hire someone to
market for me. I mine my previous clients because they’re so
much more receptive than people I haven’t worked with
before. I keep track of the cases I’ve mediated for each client.
I write down the dates and what happened. If I get in touch
with them later, I can refer to the case as a point of contact.
If I get a mediation that does well, I can often track bookings
from that client in thirty days. That’s a good marketing curve!
Rick Russell
“Name recognition and reputation is the key, and along with
that goes communication,” says Jeff Abrams. “We send out cards to
our database on a regular basis, and we try to demonstrate our creativity in what we send out. Our clients have come to expect our
cards, and often they keep them on display in their offices. We like
to make people smile, and hope that when they see the cards and
smile, they think of us.”
“Sometimes I do what I call ‘shaking the tree,’” says Toronto’s
Rick Russell. “If I see that my book of business is sort of thin, I just
go into my contact list and start calling people to say, ‘Hi, how are
you doing? You’re a good client, I haven’t seen you for a while,
what’s up?’ And while we’re talking, I can look at my database, see
what kind of work we’ve done together, refer to an old case to ask
how it’s coming along, and ask if there’s some way we might be able
to help them. It’s rather transparent, but people seem to like it. It
doesn’t always turn around work immediately, but it often pays off
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within a month or two. The thing you’ve done is brought yourself
to mind. If they haven’t mediated with you for six months, you
might as well not exist.”
BOOK SPEAKING ENGAGEMENTS
Susan Hammer is a great proponent of speaking as a way to get visibility. “Every group is looking for speakers,” she says. “Never pass
up an opportunity to speak.” It’s true—if you look for opportunities
to speak, you will find them. But remember to do your homework
first. Make the most of speaking opportunities by knowing the audience you are courting and preparing yourself as a speaker.
Know Your Audience
I learned the hard way how important it is to target a speech to an
audience. Many years ago, the Association of Intellectual Property
Lawyers asked me to speak at their seminar, and I accepted. I gave a
really good speech on mediation. But afterward, their response was
lukewarm—at best. When I ran into some of these lawyers at other
events, they didn’t even remember me. When I finally figured out
what went wrong, it seemed obvious: I’d given a speech on mediation, which is what they asked me to do—but I never once related
it to intellectual property.
We naturally connect with people who share our worldview and
speak our language. Belatedly, I understood that if I had been one
of them—if I had been interested in intellectual property law, if I
had attended their functions in the past and said, “Oh, by the way,
I’m mediating intellectual property cases”—I would have addressed
my speech to their issues automatically. And they would have listened and remembered me. But more important, I would have been
able to feel their pain. What are the things that really cause them
serious concern when confronted with an intellectual property dispute? And with that comprehensive understanding I would have
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Giving Value
My only basic rules for speaking are that the talks are an hour
or less, and I give them an overview with some specifics and
invite them to talk to me directly if they have other questions
or situations they’d like to discuss privately. I offer value,
though, by teaching them a few basic models or frameworks
through which to begin to understand conflict—it’s not a sales
pitch for an hour. Because I always give more value than I ask,
clients are always motivated to work with me again.
Gary Furlong
naturally focused my speech on the things that make them lose
sleep at night, letting them know that there is somebody out there
who can help.
But in this case, I failed because I wasn’t on the inside. Their
impression of me was, “Yeah, he gave a decent speech . . . but what
was his name again?” There was nothing authentic about me for
them. Showing up wasn’t enough. I had wasted a great opportunity.
“I was lucky,” says Eric Galton. “I was one of the first guys, but I
also knew I wouldn’t be alone for long. I spoke at thirty-five state
bar CLE programs in my first two years of practice—anything to get
in front of lawyers. My goal was to create a statewide and even national practice, not just an Austin practice. I did charitable projects,
some highly visible pro bono, and many lectures in law firms about
representing clients at mediation. Speeches in front of mediator
groups are résumé builders and fun events to meet colleagues, but
they don’t get you work.”
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Controlling the Room
In any speaking situation—just as at the negotiation table—you
want to make sure you control the room. First, make sure they ask
you, not you and a bunch of other people, to talk to the group.
Lawyers in particular have a lot of lunches they have to attend to
get credits. If you’re the only speaker, all eyes are naturally on you.
(For this reason, I don’t advise mediators to take part in general
panel discussions, because nobody hires talking heads. Panels are
just not set up in your interest—you’re basically giving away your
valuable information and not getting much back in return.)
Once they’re looking at you, make sure you hold on to them by
making your presentation interactive. Engage and connect with
the people in the room and let them see who you are. Find out
what their concerns are when dealing with conflict, then address
them in your talk. This is probably the most powerful thing you
can do.
With almost any kind of group, I never launch directly into my
speech. Instead, I let the audience initiate the topic. I say, “Before
we start I’d like to go around the room and identify the issues you
want to talk about, what your interests are, what you hope to learn
today.” Then we spend some time writing these questions and issues
on a whiteboard. Now, here’s the best part: I already know that what
I’m going to talk about will address their concerns, because I’ve
done some homework on who they are, and I know my topic. There
are generally few surprises. But engaging the audience members in
this way makes them feel heard before we even start, creates a
mutual connection, and allows me to focus even more.
If this sounds familiar, it should. The overall principle is the
same as in mediation: you let the parties speak, you listen to discover their needs and desired outcomes, and you deliver that. And
always remember Susan Hammer’s cogent warning: “Use PowerPoint sparingly! Don’t read text to your audience!”
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GET INVOLVED IN
MEDIATION ORGANIZATIONS
“If you’re doing well,” says Rick Weiler, “it creates an obligation to
put something back in. So I’m fairly active in the major ADR organizations. That kind of thing has allowed me to see how other mediators are doing, to have some input.”
All of the successful mediators who contributed to this book
have powerhouse résumés when it comes to serving in mediation
organizations. Many have been on the board of directors or served
as president; chaired committees; authored books, treatises, and articles; taught workshops to judges and lawyers; and generally been
totally focused on career development and mentoring others. And
they’re willing to give their time on a volunteer basis to help expand
their profession, because they have a passion for it. I can earn more
money in one day mediating than I do in a semester teaching, but
I teach because I still get excited about it.
Of course, there’s a danger in getting too involved. It can be an
excuse for not putting more time into your business in other ways,
and it can also create a type of clutter if you become overly involved
and distracted with organizations that probably will not get you
business. It’s important to give back to your community and your
colleagues, but don’t become involved simply because you’ve got
nothing else to do.
Be deliberate with your time. Be absolutely certain you like the
people you’re going to hang out with. If it becomes too political or
too competitive or just too aggravating for you to attend, it’s obviously not meant to be. A few years ago I was president of a couple
of organizations, but I eventually discovered that this was not the
best role for me. I like people, but I’m not good at running meetings. I like to act, not react. If I can serve as a resource or adviser,
I’m happy to do it. I’m willing to contribute if it expands the field
and makes it better for all of us. Every person quoted in this book
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Creating a Client Resource
When I started, there were no other private mediators in my
area. I wanted to create a resource list for my clients, and I
also wanted to generate referrals for my services. I went
through the phone book and other resources, and came up
with fifty or sixty lawyers, children’s therapists, accountants,
doctors—people who help people in divorce. I decided not
to select randomly, but to find top people in the community.
I called and said, “I do divorce mediation. I would like to
meet with you to find out what you do because I want you to
be a resource for my clients—someone who is an additional
option to help them as they go through their divorce.” I
picked only people whom I really was interested in using as
a resource. There had to be integrity in my statement that
I would put them on the referral list, because otherwise it
wouldn’t be genuine.
I quickly learned that if I said to people, “I’d like to take
you out to lunch to find out about you so that I can send you
business,” and spent about forty-five minutes hearing about
them, then I could say, “To get on my list you’ll need to
understand how I work, so let me explain what I do.” So I
would spend the next fifteen minutes explaining the process,
hand them a brochure, and say, “Keep me in mind.”
Nina Meierding
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contributes to the field voluntarily, but most no longer have the
time or inclination to head an organization.
What organizations are you involved in? Who is the audience?
The local mediation groups really preach to the local up-and-coming mediators. That’s fine for a short time. But if you intend to be
very successful, you’ll find that you don’t have time to spend with
that type of organization. Your target audience is the gatekeepers of
the cases you’re interested in, and that’s where you need to put your
time and energy.
CREATE A USER-FRIENDLY WEB SITE
Let me just put it right out there: with a few exceptions, such as Jeff
and Hesha Abrams’s card campaign, paper is a waste of time and
money. If you’re thinking of putting money into brochures, stop. In
today’s wired world, an Internet presence is a must. Ralph Williams
states the situation baldly: “Half the organized bar is under the age
of thirty-five. They expect you to have a Web site, to have email,
and to be able to open their attached brief with any of three programs. If I didn’t have a Web site, I would be considered a Luddite,
which would impact my credibility. The Web site is assumed—it’s
not something that distinguishes you. You’ve got to have it because
it’s part of the package people expect.”
“Our Web site has been very good for us,” says Rick Russell. “In
our area of work, people do shop for professionals this way. It’s a
good way to get the first phone call, and it’s also for closing the deal
from the phone call.”
Today, when people want to learn more about you, they go to
the Web. And if they don’t see what they want there, they’ll probably go elsewhere. “I’ll do anything to get people to go to my Web
site,” says Jeff Kichaven. “That’s how people shop these days. One
lawyer will say to another lawyer, ‘I like these three mediators.’ The
first thing the second lawyer will do is go to our Web sites and check
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us out. So having a professional, first-rate Web site is essential today,
just as it is in every other business.”
On another side of the world, New Zealand mediator Geoff
Sharp agrees. “Having a Web site is invaluable at a local level—it
is an efficient way of directing people to terms of engagement, standard mediation agreement, bio, and so on. Many of my phone calls
are inquiries and, even in the middle of a mediation, I am able to
direct people to the Web site and have them check me out while I
am working rather than my having to send them material once I am
back at my computer.”
Essentially, I want my Web site to give potential clients the easy
way to get information about me, fast. So my Web site is my biography, my business card, and more. Yet it’s not designed as a destination
site. Why? Because there’s a lot of information available on the Internet that’s a lot better than I could ever put up, and it’s constantly
being updated by others. If you create a site that needs constant
updating, you’re metaphorically cluttering your desk. I have a lot of
good information and articles on my site, but it’s mostly archived.
When people are thinking of me as a mediator, they want to
know the basics—who I am, what I’ve done, my scheduling and
fees—and that’s the first thing they see. If they want to learn more
about me, they can see my recent cases and where I’ve been published, and even read articles I’ve written. If they want to learn
more about mediation, they can link to valuable resources.
You want to create a Web site that’s creative, simple to navigate,
and easy to access and that includes basic information about you:
your background, how to contact you, your policies, and a library of
your articles or media clips. Personally, I would rather have people
see my picture quickly, see that some great things have been written about me, and then call me. If they want to check me out later,
they can go back and read the articles. Your site doesn’t have to be
expensive, but it has to reflect your character and be so simple to
navigate that it doesn’t turn people away.
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The Path of Least Resistance
If your boss says, “Find me five potential mediators,” it’s human
nature to use the path of least resistance: go to the Web. If you
find ten potential mediators, and five of them have information you can download and print, you’re going to print those
five. You’re not going to go to the one-page Web site that just
says, “Call me” and call that person. My philosophy on marketing is to make it easier for the potential user.
Mediators who don’t use the Internet for marketing are
missing the competitive advantage. This is not the future; it’s
the present.
Robert A. Creo
The point of my Web site is to give people a teaser that compels
them to call me. Too much information causes overload and prevents people from being curious. If they think they know enough
about me already, why would they call me? I’m looking to make an
initial connection through my Web site that will lead to a more personal connection.
By contrast, many mediators have much more on their Web
sites, and they find it works well for them. Robert A. Creo, who gets
great value from his Web site, says, “The easier you can make it for
them, by having more information, the better.” Personally, I just
found it was too much work to keep up an information-rich site! If
you’re Internet friendly and willing to invest the time, however,
your Web site can be valuable marketing tool.
Creo is a big proponent of using the Internet for marketing. “I
have a very active Web site and I have a lot of information on it,”
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Point of Sale
We invested a lot of money in our Web site years earlier than
our competition did. Before that, we used to send out an awful
lot of information kits. They cost us at least $10 each to send
out. Well, the Web site has all that information—and people
can print it out, using their own paper, while they’re talking
to you. If they come off a conversation with you and feel good
about you, and they can go on your Web site immediately to
learn more, there’s no holding you back. That’s point of sale!
Rick Russell
he says. “I think Web sites are a good source of information, and
getting that information is not intrusive. If you’re shopping for
mediators, you may be reluctant to call and engage the mediator in
a dialogue because you think the mediator may put the sell on you.
This way, you can go to the Web site, download the information,
and no one knows you were there. This is more beneficial to the
mediator than never receiving a call in the first place.
“Also,” he points out, “the lawyers making the decision about the
mediator are usually not the people calling the mediator. They delegate that to their secretaries or associates, and the younger those people are, the more likely they are to use the Internet. They’d rather
email somebody than pick up the phone and call. They’re used to
receiving information through the medium of screen, and they’re
much more comfortable doing their investigation on the Internet
than the old-fashioned way, by phone.”
Jeff Abrams says, “I refer people to our Web site all the time for
more information about us. I also ask for testimonials from lawyers
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and parties. If they had a very positive experience in a training or
mediation, I ask if they wouldn’t mind writing a letter to that effect
and allowing us to put an excerpt on our Web site. This is a good
way of continuing to build a strong reputation.”
Will your Web site get you more business? A lot of mediators,
including some at the top of the field, pour time and energy into
their sites, convinced that an innovative Internet presence brings
business. I can’t prove it doesn’t, but I believe that these mediators
are at the top not because of their Web sites but because of their
reputation and referrals and the story people are telling about them.
Your Web site will give you some credibility, but don’t become so
involved in creating and updating it that you forget your main marketing task: getting out there and working the room!
USE EMAIL WISELY
For those of us who began our careers fifteen or more years ago and
remember email with big green letters glowing against a black background, it’s important not to underestimate the speed and importance of email today. We use it to check schedules, keep in touch
with colleagues, follow up on cases, and thank parties at the end of
a case. As you probably already know, it’s important to harvest email
addresses from clients and potential clients so that you can use them
in the future for email newsletters, thank-yous, and other contacts.
Answering email even has to be figured in as a part of your workday. “It’s very clear that the top people in the field are doing their
emails at the beginning and end of the day,” says Robert A. Creo.
“You don’t just sit by your machine and, when an email comes in,
answer it.”
Avoid the Crackberry Syndrome
Most mediators these days carry a BlackBerry or Treo to get their
email during the day. It’s important to respond to email in a timely
manner, but avoid what I call the Crackberry syndrome—becoming
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so obsessed with your portable technology that you ignore the people you’re with.
I view mediation as a profession. Is your physician checking his
BlackBerry in the middle of an exam? No way! You’re not present
with your clients if you’re constantly checking your email or getting
vibrated by your PDA or cell phone. My rule is, never have your
cell phone on when you’re working or meeting with clients or
potential clients. Wait until you’re alone to check your email, and
take that bluetooth device out of your ear. Be fully present.
Email Newsletters
Email newsletters have effectively replaced their paper predecessors,
although anti-spam legislation limits the ability to send mass mailings easily. Even computerphobic mediators are beginning to use
email more and more, and in creative ways. “If someone has a good
experience at a mediation and I follow up in a few days with a
thank-you by email, I always make sure to attach my résumé,” says
Rick Russell. “I ask them to keep it on hand and forward it to anyone of their acquaintance who may be in need of mediation. All
they need to do is click Forward. I can get so much done with so little effort.”
People get a lot of spam. Just sending out newsletters to get your
name in front of them may have a boomerang effect. Make sure your
newsletter provides tremendous value and is not just something that
will be viewed as gratuitous marketing. And make sure your newsletter is received on an opt-in basis: ask permission to put people’s
names on your mailing list before you send them your latest gem.
A number of successful mediators send email newsletters regularly to the names on their database. “I record every new person I
meet in my leather journal and include details about where I met
them, and when, and—most important—what their interests are,”
says Michelle Obradovic. “I ask them if they have any kind of
newsletter or mailing list that I could get on, and I always ask if they
would mind if I add them to my email list. I always add them into
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The Daily Quotation Email
The significant problems we face cannot be solved by
the same level of thinking that created them.
Albert Einstein
What can you do proactively in terms of email without making yourself a pest? When I send any email, at the bottom of
the email I have little box that has what I call my “Daily Quotation”—a famous quote and a few personal comments. It
changes every day, seven days a week. And at the bottom it
refers the reader to read the Daily Quotations I have archived
on my Web site.
Robert A. Creo
my database before the next edition of my newsletter. Sometimes I
send a follow-up note with a tidbit of information that might be
helpful to their business.
“I publish a newsletter every month,” she explains. “I take a day
when I’m not mediating and write four at a time. Then I send it to
my personal contact database—about five thousand names every
month. Adjusters, business people, accountants—anyone I’ve come
in contact with. So I write it for a general audience. Every month I
get responses back. I average about fifteen cases for every newsletter
I send out.”
Rick Russell is enthusiastic about the ease of creating electronic
newsletters. “You can create one newsletter and, by cutting and
pasting, create two or three different versions—we’ll send one to
commercial mediation clients, one to workplace mediation clients,
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!
Use a Variety of Approaches
Everyone has a different learning style—visual, auditory, kinesthetic—and I think it’s important to use different approaches. We send cards and written materials because it can
be important to have something tactile in your hands. If people are more visual, they can go to our Web site, read our CVs,
and see our photos. And thank-you phone calls are always
welcome.
Jeff Abrams
one to corporate mediation clients, and one to our facilitation
clients. You get a lot of leverage out of the time you put into it.”
Ralph Williams has been very successful with his email newsletter, which always includes a brief ADR tip. “The people on my list
are people who are either in the mediation business or close to it,
or they are my customers,” he says. The newsletter runs a couple of
hundred words at the most, and goes out once a month to about
twenty-two hundred people. “Every month I get two or three calls
and cases that are directly traceable to the newsletter. I can’t go to
a bar function now and not have at least three people come up to
me and say ‘I love the tip.’ It has to be sent out in batches of
twenty-five to miss the spam filters, and I pay my assistant virtually
a day’s wages just to assemble them and send them out, but I would
never let that go. The very last thing I would do is stop writing the
monthly ADR tip.”
“I don’t have a newsletter,” says Jeff Kichaven, “but when I have
articles published, for example, I’ll send a note to the contacts on
my email list that it’s been published, with a link to the article. You
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have to send something of value to the person, otherwise email is
an imposition—it’s a turn-off, not a turn-on.”
USE ADVERTISING SPARINGLY
Does it pay to advertise? Sometimes. Sort of.
Advertising in legal or institutional newspapers and magazines
serves as a simple reminder that you’re still out in the market.
Many top mediators still place small ads with their picture for this
reason. But if you’re going to make that commitment, you’d better
be all in—your ad has to run at least a couple of dozen times in the
course of a year or year and a half—and don’t expect to get business from it.
The more effective marketing vehicle is the personal contact,
the writing—things that add value. Nevertheless, for the past ten
years I’ve been running an ad in a trade association journal for trial
lawyers. It’s my way of letting them know I’m still out there. But, in
my opinion, people who invest money in the daily law journals and
statewide bar publications are throwing money down the drain.
Unless you do it with other people in a group or on a panel, where
the expense can be shared with others, the cost is high and the payoff is not great.
Successful mediators have very definite opinions about advertising. “I find that it is a waste of money to do generic mass-market
ads,” says Michelle Obradovic. “Mediation is a personal service,
and it requires a personal touch. All of my marketing materials
reflect my personality.”
“We do some advertising in the law report service in Ontario
every three weeks,” says Rick Russell. “It’s just a third of a page with
our pictures—for name recognition. It’s to make people say, ‘Oh, I
remember that face; we settled that case.’ They have a good association with you, and they think of you. On another level, the ad also
says that we’re doing well and can afford to be there.”
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Robert A. Creo emphasizes that if you are going to advertise, frequency trumps size. “In his book The Evolution of Cooperation,
Robert Axelrod says that frequency of contact enhances cooperation. Not the length, but the frequency. If I’m going to spend an
hour with you, and I have sixty minutes of your time, six ten-minute
segments are better than one sixty-minute segment for trust and
relationship building.
“We’re looking for a way to engage frequency of contact,” he
continues. “A small print ad with the same placement in every issue
is better than a half-page ad every so often. You want to focus on
frequency of contact, even if it is minimal contact, because over the
long run this will build your business and relationships. You have to
consider how many impressions of yourself can get out there to the
marketplace.”
Frequency of contact is very important. Many years ago, when
private ads became popular, a small entrepreneurial group of judges
created an insert to a legal newspaper. It was a small yellow card
with their names and numbers on it, and if you ever needed an arbitrator, you just pulled out this card. Because of its color, it came to
be known as the gold card. It was given to the entire legal community, and people would keep it in their drawer. The International
Academy of Mediators did a similar thing a few years ago, creating
a card with a roster of about twenty neutrals who committed to
being on the card for the next five years. When split among so many
people, the cost for advertising like that is pretty minimal. And it’s
the kind of thing people really keep if the quality of mediators is
high: frequency of contact and uniqueness are the key.
Finally, a familiar refrain: “Advertise to your target market,”
advises Cliff Hendler. “Don’t use a shotgun approach. Find the vehicle people will go to. In Toronto, the Ontario Reports is a weekly
journal every lawyer gets—95 percent of our ads ago there. In Los
Angeles, lawyers read the Daily Journal. Is your market lawyers?
Businesspeople? Family people? Target to your specialty.”
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WRITING GIVES YOU CREDIBILITY
Writing, if it’s something you enjoy, is another way to get your name
in front of people. Your name in print—particularly if you have
something interesting and innovative to say—gives you credibility
and visibility. Remember, the market has gotten fairly mature and
educated, so writing an article about basic mediation theory could
put you in the wrong light. Be careful not to regurgitate what’s
already been written. People are looking for creative thinkers, writers who will push the technology of mediation theory so that the
readers are able to learn new things. Try to be inspirational. Don’t
just demonstrate the value of the process. Offer different strategies
others can integrate into their practices.
Be sure to archive your articles on your Web site. This demonstrates to clients and potential clients that you have published, and
gives them the opportunity to read the articles if they wish. “I write
articles for a variety of publications read by people who use our services,” says Rick Russell. “My partner, Gary Furlong, has written
two books. You can publish chapters of your books on your Web
site, and people can go on your site and print off a chapter. It gives
you a certain amount of credibility with people if you have a book
you can put on a Web site.”
Nearly all the contributors to this book write fairly regularly, and
there is no shortage of places to publish, including Conflict Resolution
Quarterly, Dispute Resolution magazine, Alternatives, and many others. “Every bar association has a publication,” says Ralph Williams.
“It is surprisingly easy to find places to publish. And if you’re going
to write, keep writing.”
The question is, who is your audience? Why write for a national
trade publication if your real clients come from your local geographical region? In terms of measurable impact on your calendar,
an article in a small section of one of your local bar newsletters will
probably bring more clients than an article in the American Bar
Association journal.
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TEACHING AS A MARKETING STRATEGY
I fell into teaching in the early 1990s when I participated in a workshop on mediation given to a group of judges. Randy Lowry, the
director of the Straus Institute for Dispute Resolution at Pepperdine
University, was also involved in the workshop. We hit it off right
away, and he invited me to breakfast the next day, at which time he
asked me to teach a mediation course and be director of dispute
resolution. I said, “But I’ve never taught before.” Fortunately, that
didn’t deter him. I then observed Randy and Peter Robinson present the Mediating the Litigated Case program. They were dramatic
and well organized, and really knew how to connect with their students. I studied their approaches diligently and became director of
the Mediating the Litigated Case program.
When it comes to teaching, you don’t do it for the money; you
do it for the fun of it and to support your credibility and visibility.
In terms of all these factors, being connected with a school like Pepperdine is about as good as it gets. It promotes its programs heavily—four-color brochures with biographies and ads. So at what was
essentially the beginning of my career, every time the school offered
the six-day course, it sent a beautiful brochure with my biography
to almost every lawyer in California. And this was at no expense to
me—Pepperdine paid for the privilege. That brochure gave me a lot
of instant credibility, which helped because I didn’t come from a
judicial background.
One of the benefits of teaching lawyers about mediation is that
they become great referral sources. Most of them soon find that despite their good intentions, they are not able to develop a practice
because they want to keep their day jobs. But through the Pepperdine workshops they become intrigued with the process and find
that they want to mediate their cases. When they’re looking for a
mediator, the first person they think of is the director of the course!
Teaching also improved my pubic speaking capabilities. Public
speaking can be scary, and most people aren’t comfortable with it.
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Don’t Dismiss Teaching
I teach several university courses. Originally, it didn’t give rise
to a lot of mediation work, and I was a bit puzzled. But now
it’s making more of a difference. It turns out that people who
take the courses refer people who have disputes to their teachers. Students can’t ethically take on a friend’s case, but they
believe in the process and want to pass the person on to someone they have confidence in. That’s happily been a growth
area for me. I almost dismissed it as a marketing strategy, but I
wouldn’t dismiss it now.
Rick Russell
If they do it, they do it in such a bland way that they turn people
off. After some years of teaching, I learned what it takes to be
engaging and entertaining. In fact, teaching turned out to be a personal growth opportunity because I improved my skills, met people,
and got many more requests for speaking. Teaching opens doors.
On the downside, teaching is not a profit center. You can be
extremely busy and popular while your business is actually foundering. Some people decide to become mediation trainers because their
actual practices are not generating enough business to support them.
Eventually they get so involved in serving as workshop leaders that
they forget their goal of practicing mediation for a living. Be cautious about getting caught up in that.
One last point: don’t feel you have to teach if you’re not drawn
to it. Remember that high school history teacher who looked like
he’d rather be anywhere else than in the classroom? An unengaged
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teacher doesn’t accomplish much real teaching. Not every top mediator enjoys teaching or is willing to make the sacrifices it entails.
Some are quite comfortable drawing their boundaries. Joe Epstein
says simply, “I’m not willing to give up my evenings to teach.”
GET BUSY!
“The number of hours I spend marketing far outstrips the number
of hours I spend mediating,” says Jeff Kichaven. “It’s a very competitive field.” When you’re the product and the marketer, marketing becomes a natural and inevitable part of what you do.
“I treat client development the way some people treat running
for public office,” says Michelle Obradovic. “I am always prepared
to make a quick toast or pose for a picture or tell a joke. I write a
monthly column and send it to all of my personal contacts, about
five thousand, by email. I also teach a mediation advocacy class for
third-year students at the local law school, and I guest lecture on
negotiation skills to the entire first-year class during their first semester. I also guest lecture at an evening unaccredited law school each
semester and at another local university for the justice science
majors. A bar association luncheon or a CLE program is also something that I usually do once a month.”
Think about providing CLE programs for free—one-hour lunch
programs at law firms. The lawyers get credits for attending, and you
get exposure. If I were just starting, I would do more of these.
The more types of marketing you do, the more important it
becomes to stay organized. Create a schedule of projects you are
working on, and set timeline goals for completion. And remember
to check them off when they’re done!
“Success,” says Robert Jenks, “is a function of personal investment on your part: focus your energy. I know a guy who was just
starting out as a mediator. He wrote to five hundred people he knew
or had interacted with in his personal career to tell them he had
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Never Rest!
I thought having a mediation practice would be like having
an insurance brokerage: you get the pipeline full, and it goes
on cruise control. But as a mediator you have to keep hustling
all the time—changing what you do, distinguishing yourself
from what others are doing. The mediation training programs
are grinding out new mediators as fast as law schools grind out
lawyers. I’m working as hard to keep “top of mind” now as I
was in the beginning. The last person they talk to is the first
person they think of.
Never rest!
Michael Landrum
started a business, then he called or visited as many of them as he
could. His practice took off like a rocket because he was focused.
He invested the energy, and out of that he reaped something.”
“You have to do a lot of business development,” says Robert A.
Creo. “You find time for all this stuff because you can work anywhere now, with BlackBerries and cell phones and laptops.
“I’m a Type A, task oriented,” he says. “I like to check off what’s
done. I can’t waste time. Lawyers are time conscious, used to breaking things into tenth of an hour segments. When you don’t want to
waste even one six-minute segment, it becomes almost a compulsion. You’ve got to love it or you’re not going to be happy.”
A final reminder: when you’re out there getting busy, talking to
people, teaching courses, working hard, you have to remember the
basic paradox: even though you’re doing all this in the furtherance
of your understanding and your career, if you want to build a sub-
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The Exception That Proves the Rule
When you work on your own, the only pressure is what you
put on yourself. I’m quite happy. Last year was a record year
for revenue for me in this business. I wanted more free time,
so I said to my wife, “Let’s dial it back a little bit. We’ll earn
less but have a little more free time.” So we did, and we did
have more free time—but, due to fee increases, we’re actually
ahead financially!
Rick Weiler
stantial practice, it can never be about you. You have to go out
there—whether it’s a cocktail party or a training course—ready to
listen to other people and discover what they want. You’re not out
there to tell people how great you are, but to find out what’s going
on in their practice and how you can help. When they remember
your name and face, that’s the subliminal message they should
receive on their radar screen.
TOP-TIER STRATEGIES
1. Work the butterfly effect to your advantage.
The effect of your relatively small marketing efforts—a
training, a speaking engagement, or even a brief conversation with the person sitting next to you on a plane—
can often result in surprisingly big gains. The secret is the
invisible connections. You can’t hope to control or even
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know about all the connections, but you can have faith
that the more you get out there, the more people will
know about you and your work. Putting yourself in opportunity’s way means that running into the right people at
the right time is really more than luck: eventually, people
who need your help and cases you were born to mediate
can’t help but bump right into you.
2. Decide who your clients will be and then put yourself
where they can see you.
This is a fairly simple formula. Study the pool of potential clients. Look for well-established, cohesive business
communities with trade associations and journals. You
can also affiliate with people who don’t use mediators
but who refer cases to lawyers. Once you’ve targeted your
client pool, attend their conferences and meetings of
their trade associations or specialized attorney groups,
and start making acquaintances. You’ll learn essential
information, make important contacts, and impress people with the effort you put into your work. Remember to
collect names, vital information, and email addresses for
your ever-expanding database.
3. Check in periodically with the people in your client
database.
It’s true that the last person we speak to is usually the
first person who comes to mind. When people are looking
for a mediator, you want to be that person. Make effective use of your downtime by calling to check in with
clients and potential clients. See what’s on their plate
and ask if there’s any way you can help ease their load.
4. Book speaking engagements to your target groups.
There’s no shortage of opportunities to book speaking
engagements, but it’s important to ensure that you’re
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speaking to a group that will actually generate clients
for you. Target your talk to the group and do everything
you can to answer their questions and respond to their
needs.
5. Be an interesting and interactive speaker.
Follow these five basic rules for speaking, and you will
reap not only return engagements but new clients eager
to use your expertise: (1) make sure that you are the sole
speaker; (2) control the room; (3) discover your audience’s problems and give them solutions; (4) make sure
your presentation is interactive; (5) speak to your audience’s worldview and use their language.
6. Use the Internet to your advantage.
Everybody needs a Web site, but it’s not necessary to
go overboard. The main point is to get potential clients
to make personal contact. Make sure your site gives them
your basic biography and stats, articles you have published, and complimentary words that have been written
about you, but not so much that they feel overloaded
with information. Design it to be easy to navigate. If
you have the time, energy, and inclination to create an
email newsletter, regular mailings can be an effective
way to keep your name in the front of people’s minds.
Just be sure to offer interesting and new information.
Do all you can to make sure your newsletter isn’t identified as spam!
7. Advertise judiciously.
Use advertising as another way to keep your name and
face in people’s minds, but don’t use it in such a way that
it cheapens your image or commodifies you. Frequency
and good taste trump size every time.
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8. If you have the talent and enjoy the process, write articles.
Your name in print is a quick route to credibility and
visibility. It is crucial, however, to write about something
new, put an intriguing spin on something that’s been
around for a while, or describe a technique people can use
in their own practice. It’s also crucial to publish where
other mediators, and your target audience, are most likely
to be—it’s not worth your while to write for a large general readership.
9. Make teaching a marketing strategy.
Teaching or leading trainings can be a wonderful way to
share your gift, and an interesting way to find new clients.
Students—most of whom are lawyers—frequently think
of their instructors when they need a mediator. Be sure,
however, that you don’t devote so much time to teaching
that you neglect your practice.
10. Take your marketing seriously.
Marketing—getting out there, meeting people, and being
seen and heard—is almost another full-time job, but it’s
indispensable if your goal is to make it to the top tier of
mediators. Get busy, work hard, and have fun doing it.
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Practical Considerations
The Business of Mediation
If you can’t make a living, you can’t provide the
service. So it’s important that you know how to make
a living!
Chris Moore
H
ighly successful mediators have to be good entrepreneurs. Just
mediating well will not keep you in business.
“Well-developed mediation skills and an impressive list of mediated cases do not yield a sustainable mediation practice,” agrees one
successful mediator. “It takes knowing good business practices;
having the discipline to follow them; confidence; balance; and the
ability to innovate, to lead, and to inspire others. You have to be
excellent at all of it: good service, good businessperson—you have
to do it all.” And, I would add, you may have to be willing to try
out different business models until you find the right fit.
Mediators pride themselves on being creative thinkers, so it’s no
surprise that there is no one-size-fits-all business model for mediators. Each of the top-tier mediators whose voices fill this book has
a unique practice developed over time and tailored to fit his or her
needs, interests, preferences, and personality. Here’s a small sample
that typifies their wide range of styles:
“I’ve had partnerships and been on panels,” says Robert A. Creo.
“Now I work by myself.”
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“I have two partners, and we run a panel of fifty-some mediators,” says Robert Jenks.
“I’ve never liked the sole practitioner model,” says Gary Furlong. “I own a small company with a partner, Rick Russell, and
a few associates. I find that the critical mass of having four or
five colleagues putting the company name out there helps a
great deal.”
“I’m in a suite I share with lawyers who are not mediators,” says
Paul Monicatti. “I’ve been with some of them almost twentyfive years. We run our own separate practices.”
“I’ve been a partner for twenty-five years with CDR Associates
in Boulder, Colorado, a nonprofit conflict resolution agency,”
says Bernie Mayer. “Four partners organized and started the
place. Now we’re trying to turn it over to the next generation
of people.”
“I started mediating in 1990 as a sole practitioner,” says Cliff
Hendler. “But if you get sick or want to go on vacation, and
it’s just you. . . . I also decided to create a firm because I wanted
to have something to sell or pass on to my kids when I retired,
and I’m a gregarious type—I like to work in a crowd of people.”
“Our business model is two partners, with an associate who pays
a royalty,” says another successful mediator. “She shares our
office space, and I refer a fair amount of work to her. Her royalty covers part of the overhead and contributes toward the
profit. Another associate pays a royalty—his share coming
back for the fact that we’re the place that got called. And
when he refers cases to me, I pay him a referral fee.”
The quick lesson is, there’s no one perfect business model, and
there’s no certain path to success. Robert Jenks jokes about his firm,
MAPS, the largest mediation and arbitration firm in the Southern
United States. “There’s one thing that sets us apart,” he explains
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with a smile. “If there’s a mistake to be made, we’ve made it! That’s
our claim to fame. There’s no cookie cutter for this business. If
there’s a blind alley we’ve been down it. It’s a process. You learn
from your mistakes as well as from your successes. We’ve built our
business on our mistakes!”
If you’re searching for the business model that fits you, look to
yourself, your interests, your unique personality, and your past
achievements. If you once worked with a big law firm and enjoyed
the structure, you might eventually fit in well as part of a large
provider group that takes care of your billings and marketing. If you
were good at getting business in an earlier career, the same will hold
true for you as a mediator. If you’re the gregarious type, a partnership or collaboration might be your choice. And if you’re anything
like me, you’ll fly solo and find your own way.
EVOLUTION OF A PRACTICE
Most successful mediators stay that way by evolving their practice
over time in response to the market and to their own interests. “We
hit it at the upside of the curve,” says Bernie Mayer, speaking of the
evolution of CDR. “We were very innovative, applying new concepts to areas that were ready to go. Diversification was helpful
then, but now the field calls for specialization, so we developed that
as well. We were very good at applying what we knew to new areas,
we did good work, and the combination of training and mediation
was a good one for us.”
Like that of most of the mediators who have shared their
thoughts for this book, my practice has evolved over time—and it’s
still evolving.
By the early 1990s, my business was growing along with the field
in general. As one of the first attorney mediators in Los Angeles, I
took on whatever I could get—fender benders, insurance, real estate.
I tried different business models. I started out as a provider and
formed First Mediation Corporation—I was the main mediator, but
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I would also recruit others to be on the panel. After a while, however, I realized that I didn’t want to be a promoter for other people.
It was profitable, but it wasn’t my calling.
So I reconfigured my business model as just me: Jeffrey Krivis,
private mediator. My thinking went like this: when you need heart
surgery, your first choice isn’t to walk into the hospital and take
whoever’s on duty. You call the best heart surgeon in town. I figured
that lawyers and businesses that were looking for mediators would
naturally come to someone they’d heard of and liked. In my experience—though this is certainly not true for everyone—a mediator
who works for a provider risks becoming a dispensable commodity.
So I shifted my model and promoted myself.
Now, clients who seek me out are specifically seeking my services
rather than any one of several people on a roster. I still have First
Mediation, but I use it as an entity to do billing and to run my pension account, and because some companies will hire only “vendors.”
MENTORING
Successful mediators are, by definition, busy all the time. Our business tends to be so absorbing that we need some time to clear out
our minds. Sooner or later, the need for free time becomes important for personal health and sanity. After many years of working at
full speed, I recently made a decision that working five and six long
days a week, every week, is no longer appealing. So, for the first
time, I’ve taken on an associate, Mariam Zadeh, to help with overflow. We work together as mentor and apprentice, and we both
profit from the relationship.
Market Segmentation
I have come to see this arrangement as akin to the concept of segmentation in the marketplace. At Bath & Body Works, for example, the CEO broke the chain into three tiers: flagship stores,
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middle-tier stores, and top of the line stores. According to the
CEO, market segmentation unlocks growth potential by creating
competition and opportunities at various levels within the organization. In a similar way, you might say that I have segmented my
market with Mariam. Because she is just starting her career as a
mediator, we are telling our market—that is, lawyers—that she is
available for cases I might not handle, such as smaller damage
cases. Clients appreciate it because they get someone who was
trained by me and has learned my closing techniques but charges
less. My firm gets to keep business it normally wouldn’t retain
because I might have priced myself out of the market or simply had
no openings in my calendar. And Mariam appreciates it because
she is getting referrals, earning money, and making contact with
potential new clients.
There are less formal ways of mentoring, of course. Jeff Abrams
says, “I have informally mentored a number of new mediators, and
I see great potential in their ability and skills. They are interested,
excited, and committed to the work of mediation. During her first
few mediations, for example, one woman would call me between
caucuses to brainstorm what to do next. She and I have established
a good relationship over time and distance, and she is a very successful mediator today. It’s a great process with people who are interested and where there’s a right fit. There’s no financial remuneration
involved; I just want to see them succeed.”
Observation can be an excellent teaching medium, especially if
the mentor takes the time to direct the observers. “I have a lot of
people come watch me mediate,” says Cliff Hendler. “I’m selective,
because I want them to be people who are committed to the field.
They’re fascinated by the process, and I try hard to have them put
their focus on the process rather than the issues. I tell them that
they’re there to watch the dynamics and figure out what’s going on,
where they might see the source of conflict and of opportunity. I
don’t want them to come up to me afterward and tell me who was
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right and who was wrong. I want them to tell me the mood of the
room, who was listening to whom.”
The Benefits of Mentoring
I have gotten much more out of mentoring than simply hiring
someone to take cases. My role as mentor has actually helped
expand my perspective on the practice of mediation, and I believe
it is helping me become better at what I do. I spent many years
doing little more than waking up, doing a case, coming home, preparing for the next case . . . and waking up the next morning and
doing it again. I enjoyed it, but I have to admit: that was pretty narrow! Now I have the opportunity to think about what somebody
else is working on, discuss case strategies with her, and help her
expand her own book of business. Being a mentor allows me to
reach out beyond the boundaries I created over the last ten years or
so and help shape the future.
I have also found being a mentor to be inspirational. I no longer
have the same kind of ambition to go out and do all the things
we mention in this book. But the person I am mentoring is
younger, highly motivated, at the beginning of her career, and very
interested in learning and doing all of it. This kind of energy is
contagious!
Today, mediation is highly competitive. We’re inundated with
new mediators who take a forty-hour training and think they can
mediate. As Jeff Kichaven puts it, “All you need is a business card
that says ‘Mediator’ and you’re a mediator.” As successful professionals, we need to look beyond competition to the future of our
profession. Right now, the mediation field is heavy on the experienced end. Where’s that knowledge going to go if we’re not willing
to impart it to other people? We don’t want to lose that. Older
painters and sculptors teach apprentices their art, because they
know that if they don’t, all their hard-won experience will be lost.
The only way to excel and to make sure we train new mediators
who are of high quality is to mentor them.
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!
Finding a Mentor Relationship
If you’re looking for a mentor, you first have to figure out what
your path is, what kind of mediator you want to be, whose
style you admire, and who you resonate with. Then get in
touch with that person and ask if you can shadow him or her.
From there it will either confirm that you want to proceed, or
it will be a wake-up call!
When you approach someone to be your mentor, you have
to bring something to the relationship. Don’t just think about
what the mentor can offer you, but how you can add value to
your mentor, the person you’re seeking value from. It’s a twoway street, and you’re creating a long-term bond. Any success
or defeat you have will reflect on your mentor. You need to be
cognizant of that.
I’m a Buddhist, and the mentor-disciple relationship is one
of the key elements of the practice. It’s all about developing a
relationship with someone you respect and having that person guide you, and about your being there for him or her. It’s
not just about the contacts—“I’m going to introduce you to
all these people, and you’re going to get a lot of cases.” It’s
about the intricacies of mediating that you don’t learn in class
or read in a book. That’s what people who are starting out
need to think about.
If you really want to make your mark in this profession,
ask, “Who do I respect in this field? Who do I want to follow?”
Don’t just go with the most well known person. Find someone you resonate with and then you’ll be able to say, “Now I
really have a mentor.”
Mariam Zadeh
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MAKE A PLAN
“A lot of new mediators, especially lawyers, don’t have experience
with business plans, marketing plans, setting goals,” says Jeff
Kichaven. “Most people in big law firms are not intimately involved
with the business aspect, and they’re unprepared to deal with what
you need to do to have a successful business as a mediator. Ten years
ago, when I left my law firm and went into private practice as a
mediator, I said, ‘What do I do now?’ So I hired a business coach
and relied heavily on my CPA, who was very helpful with a lot of
business-oriented information.”
I cannot overemphasize the importance of having a plan, a way
to chart your business goals and keep track of your progress. It can
make all the difference between becoming discouraged and leaving
the profession and persevering through to success. Nina Meierding
!
The Straight Story
A lot of people get upset when you give them the straight
story: that being an entrepreneur is at least as important as
being a good mediator. Sometimes I’ll say, “You’ve got to be
prepared to go a substantial period of time without any revenue, and then you’ve got to be prepared to go a substantial
period of time without any income.”
They’ll say, “Revenue? Income? What’s the difference?”
And I’ll reply, “Perhaps a mediation practice is not for
you.”
Jeff Kichaven
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puts the problem succinctly: “Many mediators choose the field of
conflict resolution because they feel a drive and a commitment to
help others resolve their disputes. For some mediators there is
almost a missionary zeal in bringing this noble concept to the public’s attention. Often this passion means that mediators are not good
businessmen or businesswomen. They don’t develop business plans,
and they idealistically expect to transition from their existing profession to mediation without difficulty.”
“What I strive for in my development plan,” says Michelle
Obradovic, “is to identify the opportunities that I have over the
next six months to a year and then to think about how I can structure my business now to make the most of those opportunities in
the future. With the operating plan, my goal is to follow it until the
value of the prior development plan is captured. These two practices keep me personally grounded and help me gauge the growth
of my business.”
Goal Tracking
When my associate, Mariam Zadeh, was considering becoming a
full-time mediator, I asked her, “How do you know this is what you
want to do? Let’s think about your goals and what obstacles you
might run into.” I suggested she put together a goal-tracking sheet,
and she ran with it.
“A lot of people say they want to get into mediation,” says
Zadeh, “but they have no concept of what they want to do. A goaltracking sheet really helps you sort it out. There are four aspects to
creating a goal sheet: (1) setting the goal; (2) exploring the obstacles; (3) brainstorming strategies; and (4) determining the intended
result of those efforts. You have to be specific, and you really have
to be honest with yourself.”
Here is a sample goal tracker you can use at the beginning of
your practice or at any point that you want to reframe your goals:
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GOAL: To become a successful mediator
INTENDED RESULT: To create a mutually beneficial long-term business
relationship with mentor
Obstacles
Strategies
When to leave current job
• When prerequisites of
meeting goal are in place
Maintain mutual trust
between self and mentor
• Open communication
channels
• Honest mutual dealings
• Candid expectation setting
Add value to self
• Gain experience and learn
from mentor
• Discuss fee arrangement with
mentor
Add value to mentor
• Expand business and
generate additional income
• Provide backup during
sick/vacation times
• More time for speaking
engagements
Client management
• Network with existing
contacts.
• Establish new contacts
(mentor’s overflow and
referrals)
Maintain steady cash flow
during transition
• Earnings to match current
salary
• Per diem work
Office space
• To start, coordinate with
mentor’s schedule. Once
profitable, expand space.
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• Mediate at parties’ offices or
at outside locations.
Managing relationships with
mentor’s existing employees
• Get tips from mentor on how
to create incentives and ease
the transition.
Work and life balance
• Work hard while making
time for personal goals
Downtime during startup phase
• Network
• Write articles for publication
• Volunteer on appellate,
superior, and federal panels
CAN YOU BE A
NEUTRAL IN A LAW FIRM?
As much as we emphasize that success will eventually mean giving
up your day job, some highly successful lawyers-turned-mediators
do manage to use their law firm as home base for their mediation
practice.
“My present business model is not my first choice,” says Tracy
Allen, “but it is what it is due to other demands, commitments, and
necessities unrelated to building a practice. Fortunately, working in
a large law firm allows me access to services, facilities, and the
‘grapevine’ that I wouldn’t have in a solo or group ADR practice.
That said, however, I know I lose work because I am affiliated with
a plaintiff’s medical malpractice firm—but I also get work because
of the firm’s reputation.
“It was easier to begin building the practice from this vantage
point,” she explains, “as I had other revenue to stay alive. Now I
choose how, where, and from whom my revenue is derived, which
means I have total autonomy in how hard I want or am willing
to work. As long as the money is in the door at year end, my firm
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!
Partnering
In new markets, particularly construction, partnering is a big
part of what I do. It’s almost like marriage counseling before
the marriage, and it’s sort of like mediation. You get brought
in by one group of people to facilitate, and a lot of people get
to see what you do. This gives you an opportunity to develop
a relationship with a lot of people.
Rick Russell
doesn’t care where it comes from. I have a case manager who I can’t
live without, and she streamlines most of the administrative work
and my calendar.”
Ben Picker also works as a neutral inside a law firm. “I have had
an active practice as a mediator for approximately twenty years,” he
says. “My story is a bit different from most because I was already well
known and well respected as a leader in the legal profession and in
the community even before I embarked on my mediation career.
“Initially, my practice as a mediator was part-time only and was
combined with an active practice as a litigator in complex commercial disputes and class actions. Over time, it evolved to a fulltime practice in ADR and mediation. Since 1995, I have been a
partner in Stradley Ronon, a 150-lawyer firm in Philadelphia, and
have served as chair of a 10-lawyer ADR practice group.
“I recognize that I am an exception in the world of full-time
neutrals, and I would not encourage others to follow my path, for
two reasons. First, many assignments cannot be undertaken due to
conflicts of interest. Second, many law firms discourage a neutral’s
practice within a law firm due to the problem of “downstream con-
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flicts” and the fact that the work cannot be leveraged. At Stradley
Ronon, however, I have had the full support of an exceptional firm
that has chosen to embrace mediation and ADR. I believe my business plan could work for an attorney who has already developed a
leadership position within the firm or is recognized as a leader in
her or his practice area, but probably not otherwise.”
SHOULD YOU JOIN A PANEL?
This book primarily talks about solo practitioners and small partnerships rather than panels because, in all honesty, that is my bias.
I am convinced that if your goal is to get to the top of the pyramid,
going it on your own is the best way. Recently, I was contacted by
an organization that was creating a Web site for neutrals, sort of like
an online panel. It was not an un-intriguing idea, but it brought me
back to the reason I had decided to go it alone in the first place: I
didn’t really know who these people were, and it would not serve
my reputation to attach my name to less well known and possibly
less skilled mediators. Highly successful mediators stand apart from
the pack: I want people to think of me as really special, not as a
commodity that is easily interchangeable with any other mediator
on the market.
Many of my colleagues agree with this point of view, but a good
number of them don’t. In fact, some of the top mediators who contributed to this book run ADR firms or work for them, and a few
credit panels with giving them the push they needed to get to the
top. And, as Ralph Williams points out, you have to make a name
for yourself as a mediator even to be considered to join a panel. “All
the provider does is give you another tool in your marketing toolbag. No provider will take you unless you have a practice already.”
Panels, or ADR providers, function like brokers for mediators.
The advantages of joining a panel are that you can get overflow business, you have use of good facilities, and it handles the business end
for you. This can be a great solution for mediators who would rather
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be mediating than focusing on marketing themselves, and who have
enjoyed working in a law firm or other corporate environment.
Alan Brutman, who founded Judicate West in 1993, says, “The
reason mediators want to come to Judicate West is our experience
in developing huge followings for many talented mediators. Everybody wants to hook up with a provider to seek instant business
and credibility from a much larger client base. As a top provider,
we have the opportunity, as a result of many years of service and
great client relationships and loyalty, to recommend one of our
panel members to a lawyer who asks, ‘Who’s your newest rising
star?’ That’s tremendous credibility for somebody just getting
started.
“The number one reason even highly successful mediators would
want to join us,” he continues, “is the luxury of not having to run
a business. We’re full-time running a business. When you’re a mediator, you want to be mediating twenty hours a day and sleeping four
if you could. That means you have to hire someone to run your business, you have to trust that person, and put your career in their
hands. . . . there are a lot of headaches that come along with running a business.”
Ralph Williams, a successful mediator and member of ADR Services, is in enthusiastic agreement. “I charge a substantial hourly
rate, and I give a percentage of that to the house. For that I get a
fabulous conference facility, staff, coffee, tea, donuts, Internet. . . .
They do all the scheduling, case management, billing and collection, and marketing and advertising. And the house takes the collection risk. It’s worth it to me in spades!”
For many entrepreneurial mediators, however, the downside to
being a panel member is the potential of becoming a commodity;
being on a panel might ultimately reduce your net worth because
you’re not able to present your own character to the public. Says
Robert A. Creo, “Panel members are ultimately people who will
compete with you, either internally or externally. I’d rather fill my
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!
Seven Partners
Our business model is unique: seven mediators—we share a
common calendar and coordinators. We share expenses. We
designed a unique first-class facility, Lakeside Mediation,
which has developed its own reputation. Our direct overhead
is surprisingly small. We have no debt. We have a managing
mediator who is fiscally responsible.
In five years we have not had a single fight about anything.
We are friends and part of something we know is special. We
are content, happy, and glad to be called mediators.
Eric Galton
own personal calendar and turn business away rather than worry
about where panel members are going.”
Alan Brutman disagrees strongly with the idea that panel
members run the risk of commodification. “We go out of our way
not to brand our panel, which makes us attractive to a lot of the
independent talent. All of our people are individual talents, and
it’s up to us to explain and promote their individual attributes to
clients.”
Some entrepreneurial mediators, such as Cliff Hendler, achieved
success by running a panel. “I have a panel of eight or nine people
who work for me,” he explains. “I’m the rainmaker; I bring in most
of the work. I pay for the advertising and the office space, and I give
people everything they need. They get a percentage of their billings.
We do all of the arranging, the scheduling—it’s easy for them. Most
of them work in the office. They eat what they kill: if they’re not
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working, they’re not getting paid. I don’t expect them to go out and
market, although if they do, that’s great.”
YOUR WORKPLACE
As should by now be abundantly clear, successful mediators work
long hours—and we don’t always have the luxury of working on our
home turf. I feel very fortunate to have my own mediation center,
with large conference rooms and separate caucus rooms, and I have
enough business that this kind of overhead makes sense. Nonetheless, I can’t always bring my cases to my own workplace. I have to
be as comfortable working behind the steering wheel or in the window seat of an airplane or in the business center of a hotel in a city
I don’t live in as I am in my office.
“The best of all worlds,” says Robert A. Creo, “would be to be
able to have your mediation center when you need it, and travel to
the client when you need to. But to be centrally located and have
enough conference rooms is expensive. If you increase your overhead, you have to increase your billing. I’d rather put the extra
money into people. That means I travel to a lot of my work.” He
makes the most of off-site “offices”: “If I have to talk on the phone,
how can I most efficiently do that? While I’m driving between cases.
When I have to write an article, I do it in the airport when I’m
waiting for a plane.”
Still, it’s good to have a place you can call home. As is true of
nearly every aspect of this business, however, every mediator puts
his or her unique spin on the concept of work space
“My business is a proprietorship; my business is in my home, and
my wife looks after my calendar. I’m out of town more often than
I’m in town,” says Rick Weiler.
Joe Epstein shares an office with a nonmediator in an allied profession. “I think that exposure helps both of us,” he says. “Our client
bases are different, but sometimes my clients can benefit from his
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!
Sharing a Suite with Lawyers
I’m in a suite I share with lawyers who are not mediators. I’ve
been with some of them almost twenty-five years. We run our
own separate practices.
Right now I’m stand-alone. Our profession is a solitary
one, although we’re really only a phone call or an email away
from other mediators. We don’t have to deal with our problems in a solitary way. So even though I practice as a solo, I’m
not alone. Organizations like the IAM have tempered that.
Still, there’s a certain value in being able to walk down the
hall in the middle of a mediation and get some immediate
feedback from another mediator. I follow a solo model now,
but it’s subject to changes.
Paul Monicatti
services, and there are times he introduces me to potential new
clients and new sources.”
No Desk, No Office, No Clutter
I agree with my colleague who said, “The biggest mistake that anyone can make is starting out with a huge capital expenditure or
committing to an expensive overhead arrangement.” I would take
that one step further: you can actually function quite well as mediator without even having a desk.
I consider my mediation center invaluable to my practice, but I
don’t have an office or a desk there to call my own. Here’s my thinking: my free time is valuable. If I don’t have a case, I don’t want to
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!
Getting Past Desk Withdrawal
Most mediators like me, who started as attorneys, still think
of themselves as attorneys and operate their mediation business as if they were still practicing law: “I have a desk, I have
an office, I go to the office and handle my paperwork . . .” I’ve
followed Jeff’s lead in doing away with my desk—and not having a desk makes a big difference! You wake up in the morning and say, “I don’t have a desk to sit at or phones to answer
or paperwork to push. What will I do to be productive?” It’s
what I often refer to as desk withdrawal, but it forces you to
look at your plan and ask, “Which strategy will I employ
today? How will I market myself today?” It’s all about making
every day productive, rather than thinking you’re being productive because you’re sitting behind a desk.
Mariam Zadeh
spend any time in the office. So my mediation center has become
an environment only for managing cases. If I have to do email or
write letters, I do it at home in my private study, where I have the
freedom to do it at my own pace with all the comforts of home.
It’s important to understand the power of giving up the clutter
that usually surrounds our offices and desks. This clutter includes
everything from folders and newspapers and Post-its to the Internet
and email and games and the siren call of Web surfing. All these
can prevent you from focusing on what you need to do.
So I recommend a radical course: get rid of your desk! I received
this valuable advice about ten years ago from Dan Sullivan, a strategic coach in Canada, and it has served me well. Living without a
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desk doesn’t prevent you from doing your work—not with laptops,
BlackBerries, and cell phones at your disposal. With fewer distractions, you can concentrate more deeply on your real work and actually accomplish more. This kind of focus, even when it comes to
something as seemingly inconsequential as a cluttered desk, will
serve you well in your aim for the top.
Your “Props” Tell a Story About You
Mediation is a very personal career. Often we are privy to the most
painful details of people’s lives, and we achieve an odd kind of intimacy with people who entered as strangers to us. It seems only right
to me that we should share something of ourselves. Hence, I make
sure that my mediation center is well supplied with what I call my
props. And, it seems, I’m not alone.
“We’ve got a fairly small boardroom, and it’s decorated fairly traditionally,” says Rick Russell, “but I have some cultural objects that
are there because they remind me of something really neat I’ve done:
a piece of coral from a mediation I did in the Bahamas, a soapstone
sculpture of a musk ox from Baffin Islands, Nunavut . . . when I see
them they make me feel good. The things in my office typically are
a bit of a prop that contains a story. My motto is, ‘He who dies with
the best stories wins.’ I’m not so interested in showing off the size of
my office or my car. I get to do neat stuff—that’s what I brag about.
If I can put something in a room that causes people to ask me to tell
them about it, and I get to tell them, I’m happy.”
I couldn’t agree more. As I mentioned earlier, when I was practicing law I felt compelled to make sure my office decor was bland
and impersonal so as not to offend clients. Ironically, the only person who was offended was me—I succeeded admirably in creating
a working environment that was the antithesis of everything about
me that was real. The paintings on the wall had been chosen to
match the drapes, not because I particularly liked them. In fact, they
made so little impression I can’t even remember what they were. If
you were to judge me by what you could glean from that office,
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you’d come away thinking I was a by-the-book fellow with few
interests outside of work. In fact, my office was expressing the inauthenticity—for me—of the career path I was then following.
Today I take great joy in coming to work, in part because I am surrounded by objects that express my passions. Among the first things I
see every day is an autographed Bob Dylan guitar hanging on the wall
and a panoramic photo of the Old Course at St. Andrews. These
mementos of music and golf remind me that there’s more to life than
work. It makes me happy to see these items, and they also offer something individual and interesting to clients.
I sometimes think of this as having props in my office that create an environment of safety and hope. Leaning up against a wall is
a well-worn baseball bat with my name and birthday on it. Most
people naturally pick it up and ask jokingly what I use it for—beating recalcitrant clients into shape? I welcome these kinds of comments as icebreakers. They naturally bring humor to a tense time,
help me make personal connections, and open up discussion.
Opportunities to provide comfort and convenience are all over
the place. Bottled water, soft drinks, good coffee—everything that
makes people feel at home. These amenities are there for me,
because they make me feel good, but I have them for strategic reasons as well.
My props may not speak to the interest of every lawyer and
client who sits down to talk with me, but I no longer worry that my
affinity for baseball or golf or rock and roll will offend someone else.
I am comfortable letting these items help create a picture of me as a
real person with a real life. The unspoken message is that if I feel
comfortable sharing something of myself with the client, then the
client can feel more comfortable opening up a painful part of his or
her life to me and entrusting it to my care.
Clients may even decide to trust me because, like them, I enjoy
baseball or golf or Bob Dylan—or because, even though they prefer
smooth jazz and tennis, my willingness to put myself out there to be
known inspires their trust that I’ll always be straight with them.
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!
Two Partners and an Associate
Originally, I wanted to run my business with a business partner and have associates, like satellites around a planet. But it’s
very difficult to market associates—basically, people call
because of their experience with you. So the panel tailed off
fairly quickly. Now three of us work in association: one does
primarily family and workplace mediation, with facilitation
on the side; one does primarily commercial and workplace
mediation, with facilitation and training on the side; and one
does equal amounts of training and commercial mediation,
with facilitation on the side. So we all sort of do everything
and can hand off work from time to time. We don’t use many
people out of this core.
Rick Russell
YOUR BUSINESS IS YOUR PEOPLE
Everyone who calls my office knows my assistant. That’s because for
the last ten years she’s been my only full-time employee. She handles scheduling and convening, answers the phone, and generally
represents me to the world. We don’t even live in the same city—
she takes the train in every Monday morning at six, stays in her
condo near the office, takes the train back on Thursday, and works
at home Thursday afternoon and Friday. It’s an arrangement that
works well for both of us. And, as you’ll see in the next chapter, I
consider her role one of the keys to my success.
Somebody’s always at the mediation center—when I’m at work,
I’m never alone. I also employ a talented and multifaceted young
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man who works part-time as my bookkeeper and as an all-around
assistant and receptionist. He also has experience with computers,
which has proven to be very helpful in my practice—he helped
design my Web site. Another part-time employee began working
with me as an extern in high school and recently graduated from
college. She does all the paperwork on my cases—sending out
notices and bills, maintaining and ordering supplies, and sometimes
answering the phone.
Think carefully about your staffing needs. Often, people enter
mediation from another career—be it law, social work, insurance,
or another field—where they are used to having the full spectrum
of office support. “When I was in a structured law office environment, you had a secretary, a file clerk . . . for a mediation business, it
seemed like a waste of services,” says Michelle Obradovic. “It’s a
better service to do my own intake. After all, people want to talk
to me about the issues, the case problems.”
The concept of low overhead is a driving force for many successful mediators. “I don’t even have a secretary anymore,”
Obradovic continues. “I have four staff people who do whatever
needs to be done and make sure the parties have what they need—
get their food, get their faxes—and I fend for myself. I think it’s
more important to have my parties taken care of than to pay for a
staff person to do my convening work. It’s a service-oriented business. It’s very hospitable.”
Paul Monicatti says, “I share a case manager with a nonmediating lawyer in my office. She’s here full time—between the two of
us—roughly six hours a day for four days, and three hours on Friday.
She does scheduling and answers questions about mediation. My
support staff is very important to me in a very personal, serviceoriented profession like mediation, where personal service is the key
to success.”
“I don’t have a staff at all,” says Jeff Kichaven. “Everything
is done on an independent contractor basis. I use a secretary service for scheduling, billing, and collection. They’re off-site. My
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!
From Partnership to Solo Practice
I practiced law from 1970 to 1990, and I was looking for something different. I stumbled across mediation in a two-day training course. The organization that put on the course was using
it to find mediators to do a bunch of cases they had. I really
enjoyed the course, and did one, two, three cases a month.
Over the next two years I thought it would be a positive career
direction, and took other courses. I met other mediators. One,
Rick Russell, was someone I developed an affinity with. We
both decided we would start a mediation firm, Agree, Inc.
The business plan was to offer a full range of ADR services,
including mediation, training, and design, because the commercial mediation market in southern Ontario was not such
that you could make a living from it.
We wanted to target a particular market, and we thought
we could successfully target the upper end—the largest law
firms, charter banks, provincial and federal government.
Within a year we had secured consulting work for both the
federal department of justice and a major Canadian bank. The
legal community heard about our success in these markets,
which raised our stock. We got busier and busier.
But by 1997 I knew I wanted to do mostly commercial
mediation, so I left Agree and set up as a sole practitioner. At
that time the market was changing, and Ottawa had developed
an early court-mandated mediation program. I was acceptable
to the lawyers up there because I was from out of town. I did
more and more cases there, and after a year I moved to Ottawa
and the practice flourished—I was mediating every day.
Rick Weiler
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bookkeeping is done by an independent contractor who has a
number of professional clients. There’s almost no filing or secretarial work. I’m a subtenant in an executive suite, so the people
who sort the mail are employees of my landlord. It’s really an
elegant business operation. I have what I need, I don’t pay more
than I need to get it, I control most of it myself, and I have good
relationships with the people I work with. It’s a nice way to run a
business.”
“Keeping overhead down is key,” says one successful mediator.
“Be self-sufficient. I have a good friend who is a fabulous legal secretary, and I call her when I need help. I have an office downtown,
but I do all my own scheduling and billing in my office at home. A
staff would be $60,000 a year. My costs are really under control. My
overhead is less than 10 percent of my gross.”
“My office manager is off-site, and she manages the practice,”
says one top mediator. “I have other part-time assistants. One is a
panelist who is co-owner and a lawyer—and who is also my wife.
She takes care of the business aspects, and the other people are
more administrative.”
“You have to think about what model of support staff you’re
going to use,” advises Robert A. Creo. “Are you going to be in a
small group and share the cost of staff support? It’s important when
somebody calls your office that they get immediate service. When
we’re actually working mediations, it’s impossible for us to service
two places at once. You need a human being to answer your phone
and be responsive, so that if people want a date and want information there’s someone there to do that. I have two administrative
assistants who work full time, Monday through Friday. They’re not
lawyers or paralegals. One does all the bookkeeping and scheduling
and phone answering; the other one does the Web page update and
other functions. Either one can answer phones and get basic information and respond to queries immediately, because I have case
forms and infrastructure for all that.”
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NOT YOUR ORDINARY CAREER
Writing this chapter, I was struck by how personal mediation is as
a profession. Despite the fact that mediation has given a home to
so many lawyers fleeing from the world of advocacy, our concerns
have much in common with social workers, therapists, and others
who provide services to people in crisis. Like any businessperson,
we do need some sort of business plan. And of course we need the
requisite accountants, insurance agents, support staff, and others to
help us run our business. In almost every way it is important for our
business to express something of ourselves, our interests, our personalities, our passions. (By the same token, even though you’re
keeping your overhead low, a premium investment of money and
care in your staff will return much more in bookings because of the
sincere concern a dedicated staff has for your well-being.) This
aspect of a mediator’s business connects with clients where it counts:
on the personal level. I believe that being able to express your
uniqueness in everything you do—including how you decorate your
workplace and think about your staff—is a key ingredient in raising
yourself above the scores of mediators who are beginning a practice
as you read these words.
TOP-TIER STRATEGIES
1. Choose a business model that fits your style.
Every business model has an upside and a downside:
provider groups offer institutional acceptance and staff
to do the scheduling and marketing, but they can also
dilute the value of your name by subsuming you in the
organization. The boutique approach, where a few mediators share overhead, can be helpful—but only if the
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people you are working with do not fear their partners
as competitors. Collaboration works when the people
involved are not jealous of one another, but partnering
just for the sake of having a partnership is a waste of vital
time and resources. Do it only if there is economic value
in the relationship. If you already know you’re entrepreneurial and enjoy meeting and greeting, there’s no need
to join with others: you already understand that the only
person responsible for generating business is you.
2. Make a plan.
Many people who become mediators do so because
they love mediating, but they are not businesspeople
and don’t know much—if anything—about business
plans. It’s imperative to make some sort of plan for yourself, whether it’s the goal tracking we discussed in this
chapter or an operating plan of your own choosing, and
to review it periodically. Without a plan, it’s easy to get
discouraged. With a plan, you can see that you really are
on track toward your goal.
3. Consider your surroundings.
Mediation is personal. When your work environment
expresses something of who you are as a person, it creates
a connection with clients and parties that carries over
into the mediation room. Make sure clients and parties
have everything they need to feel comfortable when they
are in your offices.
4. Consider finding a mentor as a fast-track approach to
starting a practice.
One of the most valuable things you can do as a new
mediator is connect with a mentor whose style and practice you admire. The benefits to you can be great: inside
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knowledge you don’t get in the classroom, and the opportunity to make contacts and have a champion at your
side. Strive to make the relationship beneficial for both
of you.
5. Consider mentoring as a way to share your knowledge
and segment your market.
Acting as a mentor not only is the right thing to do
but also can give you a whole new perspective on your
work. Another bonus is market segmentation: you can
open up work in areas you may have outgrown, reaping
financial benefits and keeping clients who might have
gone elsewhere.
6. Keep your staff to a minimum and treat them well.
If you are in private practice as a mediator, keeping your
overhead low is primary, but don’t skimp on your staff’s
salary. The most important office support is a friendly,
knowledgeable person who is always there to answer the
phone and act as your agent when clients need information or want to schedule a case. The person handling
your calendar can have a great impact on your success,
so choose him or her carefully.
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6
How Much Money Can You Earn?
Value, Investment, and Cold, Hard Cash
Making money as a mediator is no secret. It’s value
for service. If the clients feel that they are receiving
value, the fees are not an issue.
Gary Furlong
H
ow much money can a talented full-time entrepreneurial mediator earn? Let’s reframe that statement: “I’m going to give you
100 percent of my focus,” says Rod Max. “What is that day worth?”
A select few mediators at the top of the field, who practice in
profitable niches and work in favorable markets, currently command
up to $10,000 per day; a small number of mediators nationally and
internationally earn $1 million or more per year. Other top mediators, with just as much talent, may make half or even one-third that
amount, yet still be at the top of the range for their region. How
much money you can earn in your mediation practice will depend
on several factors: your market niche and client base, your location,
your skills, your ability to market yourself effectively, how you value
yourself and your time and your money, how you run your business
. . . and, significantly, how you set your fees. “You want to be reasonable, but you also want people to respect the value of your day
or hours. Some people try to undercut on fees. I believe you need
to pick a value you think is appropriate for your day,” says Rod Max.
Here’s the bottom line on the bottom line: successful mediators
charge more—even for routine cases—because, as we have seen, the
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perception in the marketplace is that you get what you pay for.
Clients who are willing to spend the money for mediation—which,
in most cases, will be far less than litigation would cost—are more
likely to invest more money in a mediator who they feel will settle
the case in a fair and timely manner. As one mediator told us, “I
raised my rates so I could work less, but I ended up working more!”
IF YOU WANT TO MAKE MONEY,
CHOOSE A PROFITABLE NICHE
“Mediation is a place to make money,” says Rod Max. But it’s not
easy. “How many people around the country are making $250,000,
$500,000 a year? We have a few who earn $500,000, and there are
fewer as you go up the line. When you get up to $1 million per year
or more, there are maybe a handful.”
Most of the mediators who are earning the big money entered
mediation from a career as attorneys or judges, and mediate litigated
cases. These kinds of complex high-stakes cases involve dollar
amounts that few mediators who specialize in community dispute
resolution or small-estate divorce cases can ever hope to achieve.
It’s hard to argue with the assessment of Ralph Williams that “the
universe divides into two parts: mediators who used to be judges,
and mediators who used to be lawyers. Nobody who isn’t a former
judge or a former lawyer is making any money. I suppose it’s theoretically possible that somewhere in the United States someone who
used to be a therapist is making money, but it’s not likely.” (Of
course, there are always exceptions to the lawyer-only rule, notably
Bernie Mayer, who was drawn to dispute resolution from a social
services background, and Cliff Hendler, who began in the insurance
industry and is now president of DRS Dispute Resolution, one of
Canada’s largest providers of ADR services.)
Particularly in the case of retired judges, there is a certain
amount of built-in trust and respectability—even if their skills in
facilitating and closing deals aren’t always optimal. But a big reason
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!
A Turnkey Operation?
Mediators who work through providers can make as much
money as people out there on their own. The superstars are
going to make their money no matter what. There is sevenfigure potential at a provider. The key is that you’re getting
maximum volume of work and exposure without the overhead. The bottom line is, a percentage of your hourly rate is
going to go to running the business—marketing, ads, employees, office expenses, and so on. To the majority of mediators,
it makes good sense to affiliate with professional ADR providers like us and have a turnkey operation.
Alan Brutman
that former lawyers and judges earn well is that the kinds of cases
and clients where the financial exposure is greatest naturally gravitate to them: class action, construction defect, malpractice, mass
tort, and so on. As we’ve seen, lawyers are the gatekeepers for most
cases—and when the stakes are high, they are generally more comfortable with mediators who they feel know and understand the law.
These cases also tend to be worth more money by their very
nature. Generally, you can charge far more for class action and mass
tort cases because the return on investment for the lawyers is substantial, and the mediator’s fee is a drop in the bucket compared to
the risk and reward. You can make money on construction defect
cases because they tend to be drawn-out affairs in which the mediator serves more as a litigation manager or special referee. You can
charge more for multiparty cases because a lot of people are contributing and splitting the pot. And in large business disputes
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between Fortune 500 companies, lawyers actually want to go to the
mediator who charges the most. Why? So that if the case goes south
for some reason, they can point to the expensive and well-known
mediator and tell their client that they gave it their best shot!
IF YOU WANT TO MAKE MONEY,
WORK IN A PROFITABLE MARKET
Mediation markets vary with geography. Canada is different than
the United States in general, and different states have widely varying markets. Texas and Florida were originally great places for mediators, but now the market is saturated with them and has leveled
off. I was fortunate to be in Los Angeles when the market was in its
infancy, and helped serve as a catalyst to lawyers in developing the
market. Being a pioneer has its advantages.
“Certain issues in specific parts of the country are more amenable for people using mediation,” says Chris Moore, “especially
places where you get court referrals. For example, family practice or
commercial practice in states that require mediation prior to going
to court are easier locales to get cases than where mediation is
totally voluntary. In places where there is not institutional support
for mediation, it takes longer to build a climate and culture that
encourages the use of mediators. My colleagues and I found this to
be the case in Colorado in the early days of mediation. We found
that it was hard to support ourselves by working in Colorado alone,
so we went national and international. This helped build a good
client base and ultimately has helped us find new opportunities in
our home state.”
Just as people who live in Los Angeles and New York tend to
earn more (and have a higher cost of living) than people who live
in Utah or Nebraska or Ohio, mediators in densely populated parts
of the country tend to be able to charge more for their services. For
example, a mediator in Los Angeles can easily charge almost twice
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as much as a mediator in Indiana. A really good year for a top-tier
mediator in Pittsburgh might be $500,000, whereas in Los Angeles
it might be approaching $1.5 million.
The laws regarding mediation also have something to do with
the market. States where mandatory mediation is in effect generally have lower rates because the market is inundated with mediators. For example, many jurisdictions have local court rules that
mandate the use of mediation in most civil cases. When the lawyers
are scheduling their cases, they now include an effort at sitting
down with a mediator before the case gets to trial. Other jurisdictions depend on the attitude of the judiciary. Most judges have now
been fully educated in their respective markets about the value of
referring cases to private mediators and are encouraging lawyers at
early status conferences to seek out a mediator. Pepperdine has
spent a number of years providing extensive workshops and training primarily to the Center for Judicial Education and Research
(CJER), which has raised the awareness of judges throughout California about the use of mediation. At the same time, however, this
effort has also catapulted many judges out of the judiciary into private practice because of their ability to make more money as mediators than they ever could as judges. These market forces have now
created their own momentum, creating the perception that the first
choice of litigators tends to be retired judges, though seasoned and
educated purchasers of mediation services have actually gravitated
toward the professional skilled mediator.
Other countries have looked to the United States for direction
in developing their own mediation programs, and we have seen a
maturation in the marketplace. This has resulted in more cut-rate
“providers” who are competing for their piece of the dispute pie and
offering discounts to large purchasers. The impact of this “commodity effect” is to drag prices downward. It also highlights the
inherent tension between those mediation groups that are focused
on quantity versus mediators whose focus is on quality.
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IF YOU WANT TO MAKE MONEY,
SET YOUR FEES AGGRESSIVELY
My fees are high. I set my fees aggressively, basing them on my years
of experience and skill as a closer. And this strategy has served me
very well.
Your pricing strategy will depend on your market and how you
see yourself in your market. If your goal is to do volume personal
injury cases, then you will likely be viewed as a commodity—there
are a lot of mediators offering this kind of service—and lower prices
will give you a competitive advantage. We see this in many industries. In personal computers, for instance, Dell has dropped its prices
dramatically to compete with HP, Gateway, and IBM, and people
have begun to see their products as interchangeable and expendable. You can make a decent living competing in a commodity market like this, but you will never reach the top tier or draw the most
complex matters.
Pricing aggressively can be a winning strategy, and top-tier mediators almost uniformly tend to put their fees very far along the high
end of the continuum. “Pricing strategy is a beauty contest,” says
one. “If you charge rock-bottom prices, those prices will devalue
your service. Parties want to know why your prices are so low. My
view is to charge the maximum the market will bear.”
Perhaps paradoxically, higher fees can be good for everybody.
“Here in Alabama,” explains Michelle Obradovic, “an aggressive
fee strategy is one of the ways we help the market. We don’t have
mandatory mediation; we don’t have rules, state certification, or regulation. We try to make sure that the new people who want to get
into this business get low-cost, quality training and have a mentor
relationship, and we help bring them in. So for a very limited time,
six months, they do pro bono and low-cost mediation. Then we get
them to the $200 per hour level as soon as possible. This raises the
level of the market for all of us. We’re all sort of working together
to raise the standard and market level.”
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!
You Have to Say, “My Time Is Valuable”
I believe the best way to be successful is to do a model of flat
billing where you’re not tied to hourly rate. The other advantage is to bill in advance and get paid in advance. That way
you’ve got their money, and you don’t have a cash flow problem. You get the people committed, and you don’t spend time
billing people or collecting money, you get people who are
serious about mediation, and you establish yourself as a highend in-demand mediator. You have to be strict about cancellation fees once they’ve confirmed the date. There’s a lot of
resistance on this from mediators who think they’ll lose the
competitive edge, but you have to say, “My time is valuable,
and these are my rules.”
Robert A. Creo
Robert A. Creo says, “I’ve made a conscious decision to segue
into the higher end of the market. I use a per diem–per party approach. For example, if I have a five-party case, they each pay me
$1,500 per day, so my billing is $7,500 per day. If I spend six hours
on the mediation, I am able to make $1,000 an hour.”
“In order to make money, you have to mediate,” says Cliff
Hendler, who runs a panel of mediators. “You can’t rely on your
panel to make you a lot of money. I charge a lot of money—$5,000
a day. I price myself out of the smaller-end market. I concentrate on
bigger cases. And it works—people pay it.”
Rick Weiler works primarily in Ontario, where “mandatory courtconnected cases are done for a capped fee. At a certain point I said,
‘I’ll do those cases, but at a market rate.’ I’ve tried to make sure that
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my fees are competitive, but raise them as the market permits. As a
consequence, my wife and I make a very comfortable living.”
YOU’RE IN CHARGE OF
HOW YOU SET YOUR FEES
Not surprisingly, how you charge—and what you feel your time is
worth—are crucial factors in how much money you can make. If
you apologize for your fees or feel guilty when you bill your clients,
you may be happy in some ways, but chances are good that you are
not going to be among the top fee generators in the profession. You
don’t have to be afraid to negotiate your fees. As one mediator told
us, “Why should I be afraid to negotiate about my rates? I’m in the
business of negotiation.”
There are any number of ways to bill clients, and you will find
the one that suits you and your client list best. Most mediators have
experimented with various forms over the years. My own motto is,
keep it simple. For example, I prefer not to do hourly billing because
it becomes complicated. I generally bill by the day, and I send out
a bill in advance of the case. Everyone pays, and we don’t have to
chase our money. Sometimes the case finishes early, and I get to play
golf in the afternoon. Sometimes it goes until midnight, and I sleep
only a few hours that night. It all balances out, and in balance this
system works very well. I generally don’t charge for the petty things,
like reviewing briefs and follow-up telephone calls, except under
extraordinary circumstances.
There’s no “right” way. One of Alabama’s most successful mediators, Rod Max, calls his thinking about fees an “evolution.” He
says, “Some people charge daily, some charge hourly. I went from
per party per hour to per party per day, and now I’m charging a flat
hourly rate. Originally, I varied the rate depending on the number of
parties: it made for a lower amount for more people, but the base
number went up. If you have three people at $140 you’re making
$420 per hour. But that got confusing, so I took it to per party per
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Negotiating the Allocation
In some large multiparty cases, before we can even begin, the
first thing we do is a mediation among the parties on how they
will finance the process: all the parties have to decide how
they are going to share the payments and resources. First they
talk individually, then they come together and reach an agreement. Usually, if they’re ready to go, they’ll figure out a way
to allocate resources for a dispute resolution initiative.
Chris Moore
day. But that was limiting. I saw that I was giving up time. So I went
to $475 per hour no matter how many parties. But this is the product of an evolution from low hourly rate to per party per hour to per
party per day to high hourly rate. In the last three years, I’ve averaged over $1 million a year.”
“I’ve done various things,” says Susan Hammer. “In fact, I
recently changed my approach. I decided to bill full days, not half
days. I never take a deposit because I trust people. And I rarely get
burned—I’ve lost maybe $1,000 in all these years.”
“I charge by the hour,” says Steve Cerveris. “I do not charge up
front—I bill after the mediation. My collections are not perfect, but
my first goal is to get clients in the office and help them resolve
their case. It’s come back to haunt me a couple times, but my collections are much better as a mediator than they were as a lawyer.”
No matter what you charge, make sure you’re consistent with
how you charge—and charge what you’re worth. Personally, even if
you are consistent, I think it’s a mistake to charge different prices
for different types of disputes, because it confuses the marketplace.
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However, many of us do that because we recognize that the marketplace is willing to pay higher prices for certain types of disputes.
The best practice is to charge the same thing for all disputes without
concern for the complexity of the dispute. Although you might lose
market share in some areas, you’re likely to gain respect and market share in areas where litigants are not concerned with price.
Some may choose to charge according the type of project. “We
are a fee-for-service nonprofit,” explains Chris Moore. “The majority of our clients and the disputes that we mediate involve either
government agencies or nonprofit or situations where government
entities, the private sector, and public interest groups come together
to fight. Often our work in the corporate sector also has to do with
businesses’ interaction with public or government agencies. Regarding fees, some of our projects are charged by the hour, others by the
day, and still others by the projected total cost of the intervention.
We often charge in phases. If we’re mediating a fairly complex dispute, we first do an assessment, talk to all parties, develop an outline of all the issues and opportunities and barriers, and develop a
proposal with a budget for a collaborative decision making or dispute resolution process. So the situation assessment costs x dollars,
and the convening process costs y dollars, and the meetings cost z
dollars.
“Sometimes we do a whole-process contract,” he continues,
“estimating a number of meetings. For example, if we know we need
three plenary sessions with fifty people, and sixteen technical working group meetings to work on details, and each of these meetings
will be of two days in duration, we can estimate preparation, meeting time, follow-up, and travel time. Then we negotiate a lump-sum
contract based on our estimated amount. On occasion we do a notto-exceed contract or negotiate a trigger for when we need to talk
with the parties if the process will be longer or more expensive than
we originally projected.”
Even with a contract, however, Moore’s firm remains flexible.
“Sometimes we do a contract and go back and negotiate for addi-
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tional time. Or a client may want a running record and they add
on, based on progress being made. It depends on the case and what
the client is comfortable with. We have a discussion of how a budget would work.”
Customs and practices regarding how to charge also vary regionally. “The per diem fee is the way it’s done in California,” explains
Michael Landrum. “I tried it for a long time here in Minnesota and
got lots of flak from lawyers who wanted hourly fees. They’d say, ‘If
we pay you a per diem fee and we settle in two hours, then you
made x dollars an hour!’ I used to do a lot of multiparty construction cases, and I had a great fee system where it was a per diem
charge per party, with discounts for more parties—but they said no,
charge an hourly fee.”
“I had daily rates at one time for local and travel,” says Michelle
Obradovic, in Alabama. “My market is oriented toward hourly rates.
Everybody I know who switched to daily rates switched back. In
other parts of the country they prefer daily rates. I’ll still do class
action and multiparty when I have to get on a plane. And if I don’t
get paid in advance, I don’t come.”
“I charge by the hour or the day, depending on what people
want,” says Ralph Williams. “I make it easy for them to buy: How
do you want to pay? Hourly? Half day? Full day? That’s enough
choices. My fees fall into the acceptable band of pricing—the
upper–middle range between the highest hourly rates and the lowest. If I started charging higher than the acceptable band, I would
lose business. If I charged less, people would think something was
wrong. I’m happy right where I am.”
Nina Meierding’s business is 80 percent family mediation and
20 percent other types, including litigated cases, and her fee practices reflect these two very different types of clients. “I charge my
clients on an hourly basis, and there is no retainer. They pay at the
end of each session for the actual time they have used. Usually, it’s
a two-hour appointment. However, if the attorneys are also present
at the mediation and they wish to block an extended period of time
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Name Your Price
With my best repeat users, I have an arrangement whereby
they can ask me to mediate any matter on their desk and
name their price. That means that they can mediate those
matters that would normally not sustain my daily charge-out
rate but nevertheless need to be mediated (as litigation sure
isn’t an option if it can’t be mediated at a commercial rate)—
I make it very clear that I am doing this as a service for them
rather than their clients . . . how they paint it with their
clients is up to them. (I hope that they take the kudos.) I have
never had this arrangement abused, and I have always been
paid a fair price for the service I provided.
Geoff Sharp
in excess of two hours (usually a half-day or full-day session), then
I charge them for the full time they have blocked (even if they settle early) because they have requested that I block a substantial
period of time exclusively for them. In both situations, I do not
schedule the next mediation until the clients have paid in full for
their last session.”
Jeff Kichaven bills on a full-day basis—one rate for less complex
cases and a higher rate for more complex cases that have more than
three sides. “The day includes one hour of prep time and eight hours
on the mediation day, payable in advance. That way nobody accuses
me trying to drag out the mediation in order to earn more fees.”
Mediators can, to some degree, control the pace and timing of the
negotiation. “I charge per hour for overtime. If the mediation goes
over by fifteen minutes or a half hour, it’s more of a hassle to bill
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out—and you gain goodwill from people if you write off small
amounts. But sometimes you’re there late at night, above and beyond the call of duty for a normal day’s work. I believe that if it’s
appropriate for lawyers to charge for this kind of work, it’s appropriate for mediators too.”
“I charge flat fees based on a two-party base, and then I have a
factor for the complexity of the case, the value of the case, and the
number of parties,” says Joe Epstein, in Colorado. “If there are more
parties, I add to the base fee. If there’s more at stake and more work
involved, I add to the base fee. I do this because I’m in a lower-price
market, so my base rate is relatively low. When more is at stake,
people are willing to pay more for the added complexity and the
increased stakes.”
“I have different fee models for local versus out-of-state cases
because if I can sleep in my own bed, I don’t mind giving a discount,” says one mediator. “A pricing strategy is probably the
toughest decision to make and the one aspect of my practice that I
have the least hard analysis to back up.”
THE BEST INVESTMENTS
ARE IN PEOPLE AND PLACE
Earning money involves a willingness to let go of market share. For
me, that eventually meant thinking about how to best invest my
resources and about what financial return I would expect to receive.
It came down to two basic areas: the people who worked with me
and the environment in which we worked.
Investing in People
When I was a practicing lawyer, I would hire people to do individual tasks—for example, I had a secretary, a paralegal, a researcher.
And when I began my business as a mediator, I continued in this
direction. And then I had a breakthrough moment: I saw my investment in my business in a radically different way. Instead of looking
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for a secretary, a bookkeeper, and so on, I would hire one person to
speak for me to the world at large. This person would act as my
agent—convening the cases, scheduling the cases—and would also
answer the phone, talk to clients, and simply represent me in the
best possible light. That person would also need to have a terrific
personality and to enjoy talking to people on the phone.
Admittedly, great people like this are hard to find. They don’t
have to be perfect at all the tasks, but they do have to have the very
best attributes of a salesperson: they must believe in their product
(you) and do everything they can to support you, and they have to
enjoy people and get along with them in even the most trying of
circumstances.
To find and keep these special people, you have to invest in
them. My epiphany came when I really began thinking about how
I wanted to invest my money in my business. If I invested $40,000
in the stock market, I would have no guarantee of return and no
control over performance. In fact, I’d be delighted if I got a 7 percent return on my investment.
Then I realized that if I took that $40,000 in before-tax dollars
and paid it to someone in twenty-six biweekly salary installments,
I’d have high control over performance and could realize as much
as a 150 percent return on my money!
Eventually I found the person I was looking for. And instead of
viewing my assistant as a secretary who just does task work for
$40,000 a year, I pay her as a professional who gets paid a bonus
based on her productivity, and so has a stake in the outcome of the
business. Her income is commensurate with a six-figure lawyer’s
income because she provides tremendous value to the business.
When I look at my rate of return, I’m overjoyed. If I had that
$40,000-a-year person who was just an order taker, my bookings
would undoubtedly be down by 40 percent. I could easily lose hundreds of thousands of dollars a year in lost bookings. But my assistant
doesn’t just answer the phone; she works at keeping me booked,
because she believes in what we do and is personally invested in
keeping the business moving forward—think of the rate of return
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Making a Ton of Money
Is Not My Only Goal
I’m not a ruthless businessman or a bottom-line thinker. I
encourage my staff to take a day off with pay each month and
do some volunteer work they wouldn’t ordinarily do. I’ve
taken my staff on cruises and vacations. Making a ton of
money is part of my business, but it’s not my only goal. I could
be more coldhearted and businesslike and make more money.
So I don’t make as much money off my staff as I could.
Cliff Hendler
when someone who works for you is affected by the growth of the
business!
I have to create the business, of course, but my assistant ensures
that business gets booked. So I’m more than willing to invest in a
top person. I’ve had the same assistant for more than ten years, and
our arrangement has worked out beyond my wildest dreams.
Investing in Your Environment
I also make it a point to invest in my environment. My mediation
center has a couple of large conference rooms and two private caucus rooms to accommodate parties during mediation, and I make
sure every chair I purchase for my office is comfortable. I might
spend an extra $15,000 on furniture, but I get it back because people appreciate the comfort. It sends a symbolic message of caring,
and that helps them want to come back. I see a direct correlation
between investing in my environment—and my clients’ comfort—
and getting a return in terms of business.
This kind of investing does not mean spending wildly. “I am not
afraid to spend money on my business,” says Michelle Obradovic,
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“but I make every dollar count. I personally live well below my
means because it gives me the most flexibility in my business. In my
mediation center, lunch is part of my overhead. The parties get to
have menus and pick what they want—sandwiches, pasta salads.
We have a little cookie oven, and right after lunch you get a plate of
chocolate chip cookies. We bought one guy a bag of cheese sticks
because he didn’t eat carbs. That kind of stuff makes all the difference. To me that’s a valuable expenditure of money!”
Eric Galton’s partnership owns Lakeside Mediation, a unique mediation center overlooking Lake Austin that has been called “Zenlike.”
In an article in the Texas Bar Journal Greg Bourgeois (the managing
member of the firm, which also includes Ben Cunningham) says,
“When people walk in here, their entire affect changes. For years, in
teaching mediation, we’ve stressed the importance of the environment
in mediation. I don’t think any of us realized just how important it is
until we opened this center.” The conference rooms lead to decks
overlooking the lake, and a bakery is right next door. “It sure beats
being stuck on the twenty-fifth floor of an office building in an eightby-eight conference room,” says Cunningham say.
Sometimes the environmental investment costs nothing but
thinking outside the box (or outside the mediation center). Eric
Galton recalls a high-conflict mediation that was going nowhere
fast. Suddenly, he says, “A picture flashed in my mind. I realized that
my left brain was talking to me and I needed to act before my right
brain took over. I grabbed my car keys, removed the parties, and
said, ‘Come with me. We’re going for a ride.’ One sat in the front
seat, one sat in the back. No one asked where we were going. I
stopped the car on a shoulder of a major highway. Next to the
shoulder were steps and a path leading to Austin’s only and most
beautiful Buddhist temple. I turned to the parties said, ‘This is where
you get out. Explore. The journey ends here. I’ll be back in an hour
or so.’
“I returned an hour later and saw no one in the parking lot. I
waited for thirty minutes in the tranquility garden and then walked
up the steps. I found them sitting cross-legged against a wall by the
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steps. I joined them on the floor and said nothing. Finally, one of
them advised me that everything was worked out. We sat for a while
and then returned to my office to write up the agreement.
“I have tried to process everything that happened that day,” says
Galton, “but I have given up. The experience was unbelievable and
accentuated my belief in the limitless creativity that the process
allows—if we only remain open.”
CREATE VALUE FOR EVERYONE
Earning at the top end of the scale does not mean grasping for dollars: pro bono cases, as we pointed out earlier, should be an integral
part of every top mediator’s career. Why? Because we are in a support-oriented business, and being of service to people is our goal. If
some cannot afford our services, our being available to help is like
an inexpensive marketing investment and is the right thing to do.
The most successful mediators may price their work aggressively,
but they also strive to be fair. As Chris Moore says, “We usually provide a logic and rationale for how we charge, so people understand
why we bill the way we do. Clients appreciate knowing about our
thinking and generally accept our thinking.”
“Making money as a mediator is no secret,” says Gary Furlong.
“It’s value for service. If the clients feel that they are receiving value,
the fees are not an issue. We price ourselves above midrange in the
market because we want to attract clients who are serious about the
process and not throwing the file against the wall to see if it sticks.
“Clients respect professionals who know what they’re worth,”
he explains, “so competing on price makes no sense. On top of that,
this is not (yet) a commodity field, and it probably never will be.
People rarely say, ‘I need to find the cheapest brain surgeon,’ and
they don’t look for the cheapest lawyer or engineer either. That
means that quality work will always attract fair fees.”
So here’s the real secret: the key to earning a substantial living
as a mediator can’t be all about the money. It has to be about creating value for everyone involved.
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It’s Not About the Money
Money isn’t the main reason I’m doing it—if it was, I’d be
hustling more. I see a lot of emphasis in our profession on
money. There’s more and more talk about making money and
how you get more business. And there’s nothing wrong with
that. But it’s changed from “We’re doing this because it’s
‘righteous work.’”
I spent a long time doing good; now I’d like to do well. I
like what I do, and I’m making a good living; I’m comfortable
with what I do. I know a lot of guys making big bucks. I define
it as doing work that I like—I turn down cases I don’t like. I
define it as the freedom and independence of being my own
person and doing my own work.
I started out with trying to have a firm, twenty-two people, fancy offices . . . one by one, the people got old and died
or left. That’s when I decided I don’t want to have an empire.
I just want to do the work.
Michael Landrum
TOP-TIER STRATEGIES
1. Choose a profitable niche.
Most top-tier mediators—the ones who charge the most,
earn the most, and work the most—come from the legal
profession and handle complex litigated cases. If your
goal is to make money as a mediator, you are unlikely
to achieve this goal if your niche is family mediation,
small-estate divorce cases, or community disputes. Con-
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struction defect, mass tort, and class action tend to pay
higher premiums for skilled mediators.
2. Bill fairly but aggressively.
In my experience, aggressive billing is a winning strategy.
Charging fees that are too low devalues you and does not
help the field as a whole. Charging the very highest, just
because you can, is a shortsighted strategy that ultimately
serves no one. Study your market, set your fees reasonably, and give yourself a raise periodically. Your time is
valuable: charge what you feel your time is worth.
3. Invest in your people and your work environment.
The people you hire to work for you are an important
part of your support structure and help sell your services
to clients. To find and keep these special people, you
have to invest in them. Treat them as professionals and
pay them accordingly. Low overhead doesn’t mean keeping all proceeds. Similarly, investing in your work environment is another smart use of your resources. If you
have even a small mediation center, make sure it has all
the comforts of home for your clients—a comfortable
chair and a good cup of coffee can be the tipping point.
4. Create value for everyone.
There’s a lot to be said for earning a lot of money doing
the work you love, but your financial statement is just
part of your success. Make sure that you share the wealth,
financial and spiritual, with your associates and employees. And be sure to take time to smell the roses.
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7
Staying Alive
Weathering the Ups and
Downs of a Mediation Practice
Business is an up and down process. You either
accept that and plan on it, or you get a job. It’s that
simple.
Gary Furlong
I
ran into my colleague Henry outside Starbucks. “How’s business?”
I asked. He shook his head.
“I’m out of the mediation business,” he said. “I’m back to litigating full time.”
“That’s too bad,” I said. “I thought you had a real talent for
negotiation.”
“Thanks,” he replied. “I really do enjoy mediating, but the ups
and downs of this business were just too much. I like a salary I can
count on. But living from mediation to mediation, and wondering if
the phone is going ring again . . .”
“Making the transition can be tough.”
“Tell me about it!” said Henry. “Even with my wife working full
time at her job, it seemed like we were running backwards financially. My income dropped by tens of thousands of dollars. Litigation
isn’t as much fun, but at least I can count on it.” He said wonderingly, “You know, it looks like such a great life from the outside.
How in the hell do you guys do it?”
I hear stories like Henry’s all the time. Would-be professional
mediators are attracted to the practice like bees to honey, but the
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The Long View
Everything is cyclical, and it’s often difficult to discern a pattern. Some years, everyone wants to mediate before the end
of the year. Other years, there is a flurry of mediation activity
right before summer begins. I take a long view. I figure that
the highs are going to be offset by the lows, and the lows are
going to be offset by the highs, and I just keep plugging away.
If I have a slow period, I focus on writing, speaking, and marketing efforts. If I’m busy mediating, I just do that.
Jeff Abrams
majority of them drop like flies after a year or so of struggle. Income—
not enough of it, or the unpredictability of it—is a big factor, but so
are the emotional ups and downs that are a given in this business.
You may be the greatest mediator in the world, but it might still
take years to establish a successful mediation practice—if you’re
lucky enough to be in the right place at the right time, skilled
enough to settle cases and make friends and champions among the
people who can bring you business, dedicated enough to put in the
hours it takes to carry off the cases and the marketing—and business-savvy enough to make it work. A vital component in creating
a successful mediation practice is being able to weather the ups and
downs of a career in which you are only as good as your most recent
successful settlement.
CYCLES AND SEASONS
“There are times when it’s a little slow, and I panic, and then the
cycle picks up, and so it goes,” says Michael Landrum. As he and
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other top mediators have learned, to stay alive in this business,
you’ve got to roll with the punches.
You’ll never be in this business so long or enjoy so much success
that you’re immune to the nagging fear that if the phone stops ringing for even one day, it will never ring again. When this happens
to me, as it inevitably does, I try to put it in perspective and stay
positive, knowing in my heart that the next call will come. After a
while, you learn to see the cycles coming. “In the twenty years I’ve
been doing this I have seen the mediation profession go through
different cycles,” says Paul Monicatti. “It’s important to be able to
weather the cycles and understand that they’re coming.”
“My workflow is pretty steady,” says Rick Weiler, “but cases slow
down in the summer. I’ve gotten over the phone not ringing—you
ride it out. We all have ups and downs in terms of the results. But
like a professional ballplayer, you just shake it off and keep going.”
If your practice is tied to lawyers and financial markets, these
fluctuations can be real issues for scheduling. And it’s easy to predict seasonal connections to a downturn in your business. “July is a
slow month for mediators,” says Michelle Obradovic. “I might have
twenty-five people in a mediation, and somebody is going to have a
family vacation or a conflict, so I can’t even schedule the case.
December is almost nonexistent for business. Between family holiday commitments and general stress levels, people aren’t willing to
commit the resources—familywise and timewise—for mediation.”
PATIENCE, PERSEVERANCE,
PERSISTANCE
Mediators who naively think they can take their careers quickly
from zero to sixty are in for a rude awakening. Virtually every mediator who participated in this book stressed the importance of having a track record and pointed out that it generally takes three to
five years of continual success and growing recognition to build one.
“I’ve been a full-time mediator for four years,” says one young,
highly successful practitioner. “In most fields that would not be very
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long. But in this field, if you can actually make a living at it, people
want to ask how you do it.”
The answer? Patience, perseverance, persistence, tenacity. Over
and over again, top mediators cite these attributes as crucial contributors to their early and continuing success.
“I get a call once a week from somebody who wants to ‘pick my
brain’ about mediation,” says Susan Hammer. “The first thing I say
is, ‘It’s great work, but don’t give up your day job.’ It takes a three- to
five-year plan to make this work.”
Nina Meierding advises, “Use your time wisely; be clear about
priorities. Otherwise, when the downtimes come you get frantic.
My first year, I made $600. After four years I was nowhere close to
six figures. But I was also thinking, what is my goal? How much time
and money am I going to invest before I reach six figures? You have
to have an inordinate amount of patience. I haven’t had a down
month in ten years—it’s been a very consistent, solid, respectable
six-figure income for ten years.”
The hard truth is, most would-be mediators aren’t willing or able
to make the commitment of time, energy, and personal sacrifice it
takes to persevere through the rocky beginnings and hard times
every mediator faces and to put in up to five years to move from a
five-figure income to a six-figure income. You must be willing to put
your finances on the line, accept continual rejection, put up with
the struggle, and ride out the hard times. This is difficult enough for
single people. When you have a family, a mortgage, and other financial obligations, it’s nearly impossible to make the transition into
mediation directly, because—especially if you’re coming from a relatively high paying profession—your income drops precipitously.
The mediators who are most in demand are the survivors—the
ones who made the cut. Those mediators not only understand what
it means to stick to a case until it settles but also know what it
means to persevere in service of their own careers.
“You need endurance,” advises Meierding. “I combined my legal
practice and mediation practice for three years, then cashed in my
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teacher’s retirement and made a commitment to doing mediation
full time. I thought, ‘If I truly direct my energy to one place, it will
work.’ And it did.”
“Did it take perseverance? You bet it did,” says Ralph Williams.
“I was managing partner of my own law firm for twenty-five years.
Then I tried, from the early 1990s until the mid-1990s, to run a
mediation practice in parallel with an arbitration practice, but it was
too emotionally, spiritually, and energetically dividing. In 1996, I
said I have to stop doing this; and in 1998 I took the plunge. I said,
I don’t care how much it costs, as long as it doesn’t take me more
than five years. It took me four years. It was a struggle, but I knew it
would take that amount of time. So I never got discouraged, because
it was happening at the pace I anticipated it would. If I had left my
law firm in 1998 and gone to ADR Services the first year I was
recruited (in 2000, instead of 2001), I would have cut a year off.”
Perseverance is not something you can fake. “The successful
people are extremely invested in the process psychologically and
mentally,” says Robert A. Creo. “You have to be very committed to
what you do, and you have to get intense personal, mental, and
emotional satisfaction from it.”
Perhaps the most striking story of perseverance occurred during
the writing of this book, when Robert Jenks’s firm in Metairie,
Louisiana, became part of the Hurricane Katrina story of 2005. He
told me that this was the most dramatic, profound devastation he
has ever seen. Obviously, commerce—and his office—were gone in
New Orleans, but he and his partners kept their business together
by taking some extra office space in Baton Rouge and working to
get the Metairie office back. Their staff pulled together and worked
from around the country, online and via phone, to keep cases scheduled and the business on track. “We were scared,” said Jenks, “but
we tend to run faster when we’re scared. There are some speed
bumps, but once we affirmatively made the decision to climb the
mountain, any obstacles become merely speed bumps and not brick
walls—so we know we’ll make it to the top.”
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!
Persistence and Patience
In time, with a commitment to a good marketing plan and a
lot of hard work, for the individual who is trained and also has
good leadership and interpersonal skills, the work will come.
In order to succeed, one must be both persistent and patient.
Ben Picker
USING THE SLOW TIMES
The phone will not ring every day. Even if your calendar is filled for
three solid months, eventually you will have an empty slot. If you’re
smart, you’ll actually learn to welcome these blank spaces in your
day as times to work on your business in a productive way.
“I just plan for the slow times,” says one top mediator. “I catch
up on business filings, interview interns and law students, write a
few newsletters or articles, book some speaking engagements, and
get ready for what’s coming next.”
“There have been times when I have honestly wanted more time
for my family and myself,” says Paul Monicatti. “Actually, I have
welcomed some of the downturn in business to allow me to smell
the roses and have time for other things in life. This may be even
more enriching than just mediating all the time.”
Why not just plain enjoy the free day? They are gifts that allow
you to recharge your batteries and not think about the business of
your profession. In order to be successful you must give yourself time
when you’re not connected to a cell phone or BlackBerry, and your
only “job” that day is to enjoy one of your many hobbies or spend
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some time with your family or friends. This is just as important as
the administrative days when there is no booking on the calendar.
Learning early in your career the art of using free time may actually help you reach your goal more quickly. Mariam Zadeh says,
“You need to be aware that you’ll find yourself with free time and
that you’ll have to deal with it. You have to keep yourself motivated. The best thing to do is go back to the business plan you set
up and say, ‘Hey, I accomplished 1, 2, and 3 on my list!’ Then pat
yourself on the back and say, ‘Now I’ll focus on items 4, 5, and 6,
and next month I’ll focus on 7, 8, and 9.’ You always have something to do if you’re focused.”
Some mediators not only welcome the downtime but even program it into their schedules. “If you’re successful,” says Ralph
Williams, “you have mostly ups and no downs. I choose not to take
cases on Friday because I can’t bring it to the table five days a week.
This work is too hard! When I made the decision not to work on
Friday, I was afraid I would lose all I had worked so hard to build.
What happened? Nothing. I didn’t lose any work. It’s an admin and
catch-up day.”
Susan Hammer also takes time away from mediating. “I try to
mediate two or three cases a week,” she says. “Because it’s so demanding, it’s important and fair to clients that I’m rested. I want to
give people my best. For me, two or three cases a week generates
plenty of income. I spend the rest of my time in leadership roles for
nonprofit organizations and with family and friends. I find this level
of practice to be sustainable and continually enriching.”
“Ask yourself, ‘What can I do if I have a gap in this day to give
value to the day?’” advises Rod Max. “I find days when I can spend
time on the telephone getting people back to the table or prepared
to get to the table. In the end, I have more appreciative people who
say, ‘Rod Max was not only there from nine in the morning until
adjournment, he also helped us design a good process and continued afterwards until we achieved resolution.’”
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REMEMBER: IT TAKES TIME
By now it should be clear that nobody gets to the top tier overnight
or over the course of a year or two. “You have to be willing to give
your goal time to ripen,” says Zadeh. “For example, suppose your
goal is to mediate full time, five cases a week. It might be that in
year one, you do three cases a week. In year two you’ll move up to
four cases a week, and then by year three you’ve got eight cases a
week. A lot of people set high expectations and think that from day
one they’ll be super busy. It doesn’t always happen that way. Sometimes your goals of reaching a certain number of cases per week or
month don’t work out the way you planned. Along the way, then,
!
Be Engaged in the Process
As a young guy in college, I used to work in a steel mill. When
I punched in to work at 7 A.M., I could do those physical, manual duties and get through that day with a minimum of energy.
When I punched out at 3 P.M., I never thought about my workday again. As a professional person you don’t have that leisure
to compartmentalize. Mediator thoughts are always running in
and out of your head. Your work is always lingering; it’s always
around you. If you walk out of a mediation that you haven’t
settled and you don’t feel it in your gut, you’re not fully
engaged in the process. I believe that mediation has to stay
with you a little bit. Every mediation has a good odor or a bad
odor that lingers with you. If you don’t smell it, maybe you’re
not engaged. You have to be deep into it.
Robert A. Creo
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you may have to alter your strategies and revise your goals. Remember, your career is a work in progress, and your approach must be
fluid. Always be willing to deal with the ambiguities.”
The key is to stay committed. If you’re going to be a successful
mediator, you have to commit your time and resources to that goal.
“Some people see mediation as a way through retirement,” says Rod
Max. “For me it’s not winding down, but gearing up. The way to get
more mediations is to mediate well. I’ll start at 7:30 A.M. designing
a mediation. By 9 A.M. I begin the day’s mediation. Whatever time
that concludes, I either travel to the next day’s mediation or I follow up on past mediations or prepare for future mediations.”
Nina Meierding also stresses the importance of commitment to
the primary goal of being a mediator. “Give it respect as to education, capital—be prepared to invest in time, classes, meeting people,
changing your office to look like a mediation office. Think about
how many years of not making money you are willing to put in.”
CREATE A FINANCIAL ROAD MAP
If you can stay focused on your goals for a few years and continue
to have successes, you will in all likelihood realize your goals. One
way to keep yourself from getting discouraged is to create a “financial road map” for yourself. Zadeh suggests graphing your projected
gross revenues over a ten-year period. The chart shown in Table 7.1
assumes that experience and exposure to the market will bring
steady growth in the number of mediations you conduct per week
and the rate you charge per mediation (adjust the numbers to reflect
the realities of your own market).
“A graph or chart will make it clear to you how your income can
incrementally increase,” she advises. “You can also see that as you
gain more experience, you’ll be increasing your fee. When you see
it on paper,” she says, “you can see the present risk of making the
transition to full-time mediation, and your potential reward down
the road. If you’re risk averse, underestimate the numbers a little
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Table 7.1. Ten-Year Revenue Projection Chart
Years
Mediation Fee
per Half Day
Number of Half-Day
Mediations per Week
Total
1–2
3–4
5–6
7–8
9–10
$1,500
$1,500
$2,000
$2,000
$3,000
2
4
6
8
10
$144,000
$288,000
$576,000
$768,000
$1,440,000
bit. That way, even if you’re not busy every day of the month at the
beginning, you’ll feel more secure and won’t get as easily bruised by
the bumpy start.”
With the addition of two more columns illustrating how fees will
be shared between mentor and mentee, (as shown in Table 7.2), this
same chart can also be used as a presentation piece to a prospective
mentor to demonstrate the financial value of taking you on as a
mentee.
Feeling secure about reaching your goal is a key factor in keeping
yourself climbing that pyramid. “For about twelve years,” says one
top mediator, “I was like the rocket being put into orbit from Cape
Canaveral. I was putting in a lot of energy, burning the fuel. It was
work, work, work. I had to borrow money, go into hock; my revenue
was flat, and we were living off the loan. But in the last few years
I’ve gone into orbit—the fuel’s been burned, the orbit is steady, I
just have to do little course corrections to prevent the orbit from
decaying.”
You also have to be practical. “Living below my means is selfpreservation,” says Michelle Obradovic. “I really love this job and
don’t want to get overextended and go back to my law practice.
Getting a super-fancy office, spending a lot on decorators, buying
$2,000 designer business suits—that’s not going to happen.”
“You’ve got to be in it for the long haul,” agrees Paul Monicatti.
“In terms of your spending habits, you have to be able to plan for
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Table 7.2. Adding Value as a Mentee.
Years
1–2*
3–4*
5–6**
7–8**
9–10***
Mediation
Fee
Number
of Half-Day
Mediations
per Week
Total
Mentor
Self
$1,500
$1,500
$2,000
$2,000
$3,000
2
4
6
8
10
$144,000
$288,000
$576,000
$768,000
$1,440,000
$50,400
$100,800
$194,000
$242,000
$388,000
$193,600
$187,200
$382,000
$526,000
$1,052,000
*Based on a mentor and mentee allocation of 65 percent and 35 percent for
income between $0 and $500,000. These ratios are, of course, negotiable between
mentor and mentee.
**Based on a mentor and mentee allocation of 75 percent and 25 percent for
income between $500,000 and$999,999. These ratios are, of course, negotiable
between mentor and mentee.
***Based on a mentor and mentee allocation of 80 percent and 20 percent for
any income $1 million and over. These ratios are, of course, negotiable between
mentor and mentee.
the inevitable down cycle. Turn it around into a positive. That has
more value than the loss of business. The increase in available time
for family and other important things in life may outweigh the downturn in business.”
Stay on Top of Your Trends
Just as the captain of a sailboat must continually be aware of changing currents in order to reach port safely, observing your practice
and making necessary course corrections is vital. You may need to
tweak your approach to how you set your fees, how you market
yourself, or your business model. Even if you feel you’ve reached the
top, it pays to review your business continually. “My practice is
always a work in progress,” says one successful mediator. “I have a
detailed operating plan, as well as a detailed development plan for
my business. About every three months, I read both of them word
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Value the Up Times
Value the “up” times. Feeling good about yourself, having
someone call and say he or she is referring you on a case, having people call you and say you did a great job—when everything comes together like that, it’s great. Capture that feeling
and hold on to it, because it all weaves together. If you’re not
being positive, how can you move forward?
Mariam Zadeh
for word, start to finish. About every six months, I revise them. During the time in between, I keep a blank journal with me to write
notes to myself to read during the review process.”
“Trust the process and observe the results,” advises Rod Max.
“You always have to analyze your practice from calendars to collections to accounts receivable to billing. I do comparisons every year.
How many mediations did I have this year, last year? I compare my
billings; I compare my collections. Am I working more and enjoying it less? Am I working less and enjoying it more? Could I have
billed more? Should I have billed less? This kind of self-critical
analysis has to go on as often as monthly, and no less than quarterly,
to stay on top of the trends.”
DEALING WITH
EMOTIONAL OVERLOAD
When you don’t settle—or worse, when a few cases in a row don’t
settle—it’s draining. You begin to doubt your worth. You know
you’ve done a lot of good work, and you may have done great work
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on those cases. But ultimately, you’ve got to close out these deals.
Not getting to closure just saps your energy. As Robert A. Creo says,
“The human moments are so powerful and enriching. They make
you say, ‘I really want to settle this case!’”
“You have to be prepared for the emotional roller coaster,” says
my associate, Mariam Zadeh. “You’re thinking, ‘So-and-so will go
to bat for me’ or ‘I’m going to call in this favor and I’ll get this case,’
and then it doesn’t pan out. These are the realities you have to face
in the beginning of your career. Some days are disappointing. At
first, you look at it philosophically and think, ‘Oh, I guess I didn’t
get this business. Maybe next time.’ Often, it just feels like personal
rejection.”
Mediation as a sole practitioner can be lonely. If you don’t have
other mediators in the office to bounce ideas off of, especially during
times when there is little work coming your way, you can feel very
isolated. One way to break out of this to meet with other mediators
to discuss ideas of mutual interest. “I’ve made a concerted effort in
the last two years to reach out and join high-quality mediator
groups,” says one of my colleagues. “I go to conferences twice a year,
and I get to do high-end thinking and talking about mediation with
high-end people. That’s been very valuable for me.”
“When you settle case after case after case,” says Ralph Williams,
“you think you’re fabulous. When you don’t settle a case, you think
you’ve totally lost your touch. If you’re subject to loneliness or depression, this business is not for you. Your emotions magnify because
you’re alone. You have to have your feet on the ground. I try not to
take myself too seriously. I remind myself that everything I have is a
gift, and I need to be a prudent steward of it and use it well.”
It’s important to move through the feelings and be ready, willing, and able to maintain an aggressive follow-up schedule that
continually nudges parties closer to their objectives. Call, write,
schedule another session. Do everything you can to bring the parties closer, one small step at a time. Because once the parties are
closer, they feel more willing to be flexible. (As Tracy Allen says,
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Survival Skills
Those of us who get up every Monday morning to sit in the
mediator’s chair need survival skills, and we all differ as to
what does it for us. A real danger for me is being hardened to
conflict, and I often reflect about the potential for me to lose
my compassion. Even in dollar disputes, a form of compassion
and generosity to those in conflict is required to be an effective neutral. Once that is eroded over time, no other mediator skills can compensate, and the market will talk about you
being stale, robotic, or worse, burned out. I think I am susceptible to this, and I have seen it in other mediators. But
that’s the marvelous thing—parties notice everything!
Geoff Sharp
“Blessed are the flexible, for they shall never be bent out of shape!”)
And have faith in the process: eventually, most cases do settle.
Even when you settle successfully, mediation can be draining.
Conflict is never pretty, and it can be exhausting to be the emotional focal point for a room full of angry people. What we do may
look easy to the untutored, but successful mediators all agree that,
contrary to the belief of many would-be mediators, it takes stamina
and endurance to do this work. Worse, many cases revolve around
terrible traumas and unthinkable losses. “Luckily, I’ve never experienced burnout,” says Paul Monicatti, “but there are periods you
go through where many of the cases involve death and destruction,
grieving families, high emotions, children confined to wheelchairs
or persons in permanent vegetative states. . . . That kind of
heartache can gang up on you. A break from that is helpful.”
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No one can work at full speed day in and day out without needing to find a way to recharge his or her batteries. Over the years, like
most other successful mediators, I have developed a few tools for
dealing with the emotional and physical toll of intense mediation.
Stay Fresh
Finding ways to stay fresh is a continual challenge. “You stay alive by
constantly reinventing yourself as a mediator,” says Eric Galton,
“acquiring and developing new techniques, hanging out at least twice
a year with other mediators, and taking enough vacation time to
recharge. Also, maintaining your other passions is critical. I don’t feel
I compete with other mediators. We collaborate and exchange ideas.
We all need to get better at what we do. At least twice a year, I take
a hard look in the mirror and ask, ‘How can I do what I love better?’”
Michael Landrum concentrates on moving forward. “How do I
deal with the ups and downs of the business? One of the keys for me
is trying to stay ahead of the curve of types of cases. Different forms
of mediation, formats, styles—the whole field is constantly evolving. I change the way I do things. If you want to do this for a living,
the way you learned may not be the right way any more. Figuring
out what’s next is the continuing challenge. Keep yourself fresh and
stay ahead of the field.”
Go on education vacations, where you are forced to learn about
something you don’t know about. This will train your mind to be
creative. You can also discuss case evaluations with colleagues, particularly in subspecialties where you have not mediated. Ask other
mediators what they might do in a given hypothetical situation, as
you will learn a number of different techniques that might not be
in your toolbox.
Take Home the Gems
After I play a game of golf, I think back to each of the eighteen
holes and look at what I did right, what I did wrong, how I might
have played it differently. I take the same approach in my practice.
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At the end of every session, I like to look for the learning points, find
the gem, and understand what caused the tipping point in the case.
That requires a quiet meditation, perhaps with a glass of pinot noir,
during which I sort through what happened that day. Inevitably, I
will identify at least one moment that is worth remembering.
Another trick is to remember the stories people tell during the
sessions, or the narrative of the case itself. These stories are the living, breathing, driving forces that inspire you to keep on doing this
for a living. I keep a journal of interesting cases, jotting down interesting quotes and humorous or startling insights and the often wonderful anecdotes that people use. And sometimes I start to incorporate
these to expand my own repertoire.
Create Comfort Breaks
I also continually try to come up with different ways to create comfort and value in my environment. For example, I installed cable
TV in the mediation center so that we have access to the news
when attention and energy flag during a lengthy mediation. I always
make sure to have a variety of unique reading materials accessible
to people if they need to take a break and get their mind off the
process for a while. Perhaps one of the best things I did years ago
was to buy an espresso machine for the mediation center. Even if
you just decide on the spur of the moment to bring in bagels for the
staff, you help energize everyone.
Letting Go
Sometimes, especially after a particularly rough or draining session,
you just have to put the day out of your mind and move on. “Some
of us deal with highly emotional cases,” says Cliff Hendler, “stories
you don’t want to hear about, let alone think about. Hearing about
these things and becoming involved in helping to resolve some of
the issues help you grow as a human being and help you be thankful
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!
Get Used to It!
I sometimes compare having a mediation business to running
a restaurant. You may have reservations this Saturday night
and next Saturday night, but you probably don’t have reservations for six months from now. We might have mediations
for the next month, but nobody has a contract to give us
mediations six months out. In law practice, an individual lawsuit can last for months or years. In mediation, your cases last
for a day or a few days—you need new cases coming in all the
time. It can be very difficult to get used to. It takes a certain
intestinal fortitude to take a long-term view. It’s very difficult
to keep a stiff upper lip and keep doing the marketing when
things are slow. Yet you have to do it. Swim or die.
What’s my secret? Get used to it! It’s not going to go away.
Jeff Kichaven
for what you’ve got. They make you more humane. But there are
cases that haunt you because they’re so horrific. You’ve got let it go—
a bathtub memory. When it’s over, you pull the plug and let it go.”
TOP-TIER STRATEGIES
1. Accept that there will be slow times and plan for them.
It’s the law of gravity: what goes up must come down.
The trick is not to take the inevitable downtimes personally. Instead of being surprised when you have a gap on
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your calendar, use that time wisely: work on your marketing, make calls to clients, review your business plan—or
just take the day off! The key is knowing in your heart
that business will pick up soon, and continuing to work
in that direction.
2. Be patient and persistent.
It takes from three to five years to build a solidly successful mediation career. During all that time—whether
your practice is going well or not so well—you must be
engaged, committed, and fully present. If you give up,
you are guaranteed not to succeed. If you can stick with
it, correcting course as necessary, you may be one of the
survivors.
3. Review your practice periodically to spot trends and
make course corrections.
No practice will ever run on automatic pilot. Steer your
practice and change your financial, marketing, or other
strategies whenever necessary to stay on course. This
means making an operational and goal plan and reviewing it regularly. Monitor whether you are earning as much
money as you projected and booking as many cases as you
need to meet your goals. If you’ve been in business for a
while and have never done this, there’s no time like the
present. And always, always make course corrections
when necessary, whether they are almost imperceptible
or 180-degree turns.
4. Stay fresh.
It’s easy to get caught up in success—don’t let your practice become a treadmill of success that keeps you trudging
from closed deal to closed deal long past the time you run
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out of energy and enthusiasm for the job. Explore new
avenues, shake up the way you do things, talk to mediators who are having fun and pick their brains. And if you
need a break, take a break.
5. Enjoy the good times!
Many of us tend forget the up part of the ups and downs
of the business. When your calendar is booked solid,
you’re settling every case, and the phone is ringing off
the hook, pat yourself on the back and bask in the glory.
You’re working hard—you deserve it!
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8
Looking Ahead
The Future of Mediation and
Your Future in Mediation
People go to mediation classes and ask, “How do you
recommend I get business?” It’s really about so much
more than that. You have to choose this profession
and make it happen.
Mariam Zadeh
I
was in the right place at the right time, and I’m the first to admit
it. Still, it’s my nature to be optimistic about the future. I know
that the way I and my contemporaries did it is not necessarily the
way today’s mediator must work. The market has matured, laws are
changing, and the mediation field itself is more crowded. If you’re
going to start a mediation career now, you have to approach it in a
very different way than we did at the beginning. In this book we
have done our best to make clear the many avenues that are open
to you as a mediator who aspires to a high-quality, financially successful practice.
Now that we’re closing in on the end of the book, we have chosen to look into the future of mediation and to urge you to think
about your own future as a mediator. They are, of course, inextricably connected. Ask a top mediator to look in the crystal ball, as we
did, and you will get many individual and insightful visions of the
future. As you have already seen, we don’t always agree. But it is
precisely this individuality—and the expansive nature of the mediation profession, which allows for this attitude of playfulness,
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Mediation Touches Everyone Involved
I see a brighter future for everyone. When we started, people
confused the word mediation with meditation or arbitration—
they were completely unclear on the concept. Now most people understand generally what a mediator does. The more
experience people have in problem solving, the better. The
bedrock is communication skills. Effective listening always
lightens the tension in every situation. I feel that every successful mediation touches the lives of everyone involved and
represents the interconnectedness of all of us. It has a deep
spiritual dimension if you look at your work that way.
Jeff Abrams
thoughtfulness, boldness, and experimentation—that has enabled
the mediators who participated in this book to climb to the top of
the pyramid.
THE FUTURE OF MEDIATION
I have lived through the infancy, childhood, and adolescence of the
mediation profession. In many ways, I feel like a proud father who
has seen his child successfully launched into adulthood. Still, as
every parent knows, your responsibility doesn’t stop there. It’s up to
us as professional mediators to ensure that mediation continues to
mature in ways that make us proud. That said, let’s look at the
trends in the mediation field today. Some are not so hopeful, some
are more hopeful. A realistic assessment of where the practice is
going is not just an exercise in philosophizing: it can be a practical
guide by which you shape your career in the years to come.
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Looking Ahead
Not-So-Hopeful Trends:
Institutionalization of the Process
We are now living in a society that has, by and large, accepted
mediation as a dispute resolution process, and we are seeing a steady
increase in the number of cases going to mediation. This is remarkable and heartening to those who love the profession.
In the last several years, however, mediation has learned to
depend on litigation to feed its hunger for business. In the early
stages of the mediation movement, the opposite was true. Litigation needed the process of mediation to decongest the court system,
presumptively save money for clients, and allow more control of the
outcome to the parties. Today, litigation views mediation as a commodity rather than as a useful resource.
“When I got in the field I was spoiled,” says Paul Monicatti,
“because people willingly and voluntarily came to mediation. Now,
with the new mediation court rule, judges are exerting pressure on
people to come in to mediation. This changes the dynamics. Because
some parties are reluctant or unwilling participants, their minds and
hearts simply are not vested in the process. Now I see mediation
becoming just another stage in the litigation process.” New Zealand’s
Geoff Sharp also sees this trend. “Many mediators have an unfortunate tendency to be unduly reliant on court systems to feed them
cases. I do think that there is a real danger in all jurisdictions of
mediation needing litigation more than the other way around.”
“This is a big mistake,” says Jeff Kichaven. “Court systems will
inevitably regulate mediation, but not in ways that are consistent
with the values of the mediation profession—originality, creativity,
spontaneity. They will regulate in ways that are consistent with the
legal system: regularity, predictability, consistency. We are supposed
to be alternative dispute resolution. If we rely too much on the court
system, it will suck the life out of what we do. We have to be willing
to rely on ourselves to convene and administer our cases at our own
expense. We can’t take the easy way out. There’s no such thing as
a free lunch.”
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Not surprisingly, lawyers have come to dominate the mediation
profession. For some, this is a plus. Ralph Williams says, “My point
of view is the point of view of a former trial lawyer, and my clients
are trial lawyers. In the lawsuit world, mediation is here to stay, as
another tool in the trial lawyer’s toolbox. And it will probably get
bigger than it is now.” For others, the predominance of lawyers is a
mixed blessing. “A tremendous number of lawyers are interested in
alternative dispute resolution,” says Chris Moore. “They bring a lot
because of their legal expertise and background, and that’s a good
thing. When you have a profession as powerful as the legal community that sees mediation as being advantageous, that is very significant. The problem is when they decide they want to capture the
field, and limit who can practice to only those who have law degrees
or market it in such a way as to say that only lawyers would have the
information to be able to practice in that arena, which is not true.
Many people in the legal community would very much like to be the
primary, if not the exclusive, provider for dispute resolution services.
In several states they have actually been successful at limiting some
of the practice of mediation to lawyers, or making it very difficult for
nonlawyers to get in, especially on cases referred by courts.”
As a former trial lawyer who found my dharma in mediation, I
can see a number of reasons for lawyers to continue joining the profession! Nonetheless, variety is the spice of life, and the field of
mediation is no different. Some of the most effective mediators in
the world are nonlawyers. Consider Cliff Hendler, who is considered one of the most creative problem solvers in all of Canada. Cliff
did not go to law school, but he has substantial experience in the
field of risk management, so he came to the profession with a definitive understanding of the decision-making process. That background, coupled with his colorful personality, makes him a natural
as a mediator.
In a sense, the institutionalization of mediation is a “be careful
what you wish for” result. In the late 1980s and early 1990s, mediators pushed to add mediation as an item on the menu of legal
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options that were offered in the civil justice system. That system
resisted our efforts for many years, but then realized that not only
could it obtain better statistics in terms of closed files but also
increase client and attorney satisfaction—at which point mediation
became the hottest thing in town. Everybody just had to have it.
Once that occurred, the usual administrative machinery took
effect, and regulations were installed. Those regulations included
local court rules that mandated the use of mediation at certain
points in a case without requiring any analysis as to whether mediation was even appropriate to unlock the dispute.
This idea of mediation as a panacea for all court cases has backfired. The mandatory nature of the process caused lawyers to treat
it less as a creative and innovative opportunity and more as a
required function along the way toward trial. Mediators then modeled their behavior after what lawyers wanted in the process, and
some became professional messengers merely delivering the good
news and the bad news in caucus format. For the process to reenergize, the civil justice system would be well served to back off from
its mandatory approach to the use of mediation and to let the marketplace be the arbiter of what process makes sense to solve litigated
disputes.
Not-So-Hopeful Trends: The “Stale” Mediator
I am a huge proponent of mediation as an improvisational process:
thinking on your feet, seeing each mediation as unique, working in
the moment, and staying creative seem to me to be the essence of
successful mediation. Sadly, along with institutionalization has come
a decline in the appreciation of the process and the phenomenon
of the stale, “lazy,” or uncreative mediator. For mediation to continue to grow, there needs to be a reacceptance of the process and
a new shot of creativity into the system.
Due to the proliferation of mediators and the reliance on litigation to feed this animal, mediators are forced to conform their practices in a way that limits development of strategic techniques and
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creativity. This conformity means that the mediation “product” has
become a low-margin commodity in many circles. Mediators copy
each other in style and lose their ability to differentiate themselves.
Even the high-priced mediators begin to look like their litigation
counterparts, basically offering the same service.
Many mediators, including Cliff Hendler, agree with this assessment. “In the beginning,” he says, “mediation was novel and creative, and people were intrigued. People would go to mediation with
an open mind and listen to creative solutions. Nowadays, people in
mature markets like Los Angeles, Miami, and Toronto have ‘been
there, done that.’ Mediation is in danger of becoming too embedded in the litigation field. Lawyers want to regulate what we do, how
we do it, and where we do it, and that takes some of the creativity
out of it.”
Clients can tell instantly when a mediator becomes stale, and the
mediator can tell too. In the best-case scenario, these mediators end
up seeing the same clients over and over again based purely on the
power of their personality. In the worst case, the phone stops ringing.
Even though the most innovative mediators have transformed
their practices into unique processes in which they are able to
charge for their experience and wisdom, the mediation profession
is trending dangerously toward the predictable. Some in the legal
profession think they know more about the mediation process than
mediators do; the process itself has often become stale, the mediator expendable.
Not-So-Hopeful Trends: Instant Mediators
It has become all too easy to take a forty-hour training, print a stack
of business cards, and call yourself a mediator. As I hope we have
made clear throughout this book, this is not the road to success—
on a personal level or for the profession as a whole.
Lawyers who bring cases to mediators often resent them because
lawyers perceive mediating as “easier” than having a client and
advocating a position. The legal world often wonders out loud why
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mediators don’t have some professional requirements, such as continuing education, grievance procedures, or other annual requirements to maintain their licenses. So do I.
Other professionals, such as doctors and lawyers, have mandatory continuing education responsibilities. For mediation to be
viewed as a profession, mediators ought to adopt similar requirements. Because mediation has its roots in parts of several social sciences, continuing education in such disparate but related areas as
neurolinguistic programming, cognitive linguistics, improvisational
theater, and decision making seem like a natural extension.
Several years ago, there was a trend toward attempting to create
certification programs that would license mediators. Initially, the
mediation community resisted, and the trend has subsided. Nevertheless, the possibility of certification or licensure will be brought up
again in the future and will have substantial backing by members of
the legal community who feel that regulation is critical for those
mediators who work on court-related cases. That said, it would be
useful for the mediation community to embrace credentialing as a
way to define who we are and to express our willingness to be responsible for our own malpractice or negligent acts. From a marketing
standpoint, being able to tell potential clients that you are licensed
in the field will give you more credibility than simply hanging out a
shingle with your name followed by the word “Mediator.”
Not-So-Hopeful Trends: Rising Business Costs
The commodification of mediation has also meant that large consumers of our service, particularly insurance companies, want to
reduce vendor costs. Because mediators have now fallen into the
trap of becoming vendors, insurers are managing the costs of the
process in a way that allows them to control the marketplace. Even
though, as we have seen, highly successful mediators can command
extremely comfortable fees, overall rates are going down.
Meanwhile, as compensation for mediators has dropped, the cost
of being in business has increased. The reason for this is that large
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!
An Ingrained Process
The future of mediation is solid as an ingrained process, in
terms of value to clients. It’s not a passing fancy. I believe that
in the future, it will be used as the main method of dispute resolution, and litigation will really be the last result. In ten years,
virtually no case will go to court without first having been
mediated.
Cliff Hendler
insurance companies continue to cut costs, yet require mediators
to provide more value—large conference facilities, espresso, highend donuts, lunch menus. In fact, many insurance companies now
require mediation providers to supply computerized statistical
case information that they can combine with their usual claims
analysis.
The result? Individual mediators who actually started the movement years ago are now moving in droves to serve as panel members
with various providers, who handle the increasingly complicated
business end of the practice. In my opinion, this has resulted in the
further commodification of the mediator in that, although there are
always superstars, it can be very difficult for clients to differentiate
between panel members.
Hopeful Trends: Institutionalization of the Process
Somewhat ironically, perhaps the least hopeful trend is also one of
the most hopeful trends for mediation. “There’s no question that
mediation has grown dramatically over the last fifteen years,” says
Chris Moore. “What’s interesting is the diversity of application.
People are trying it out to resolve all kinds of disputes.”
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“Mediation is now firmly implanted in the legal communities
and in corporations as a way to manage costs and minimize risk,”
says Cliff Hendler. “That people are now using mediation in situations where face-to-face negotiation used to be the main form of
settlement proves this.” Even Robert Benjamin, who laments the
declining creativity of the field, sees this trend in a positive light:
“Over the last twenty-five years, we have seen a worldwide effort to
institutionalize the notion of managing conflicts through mediated
negotiation processes, and to institutionalize that in the codes and,
to some extent, the legal cultures of many different countries. From
a historical perspective, this is remarkable.”
The good news is that almost every law school has now integrated some form of mediation into its curriculum. Indeed, ADR
has appeared on the bar exams of many states, and many schools
have developed institutes that study dispute resolution throughout
the world. In short, the field has matured. It has begun to define
itself and discover what the best practices of a mediator are. In that
this approach resembles that of many of the other professions, it
provides credibility, which is a hopeful trend.
Hopeful Trends: Mentoring
The increase in mentoring, as we have seen, is another very hopeful trend. Again, this draws from the professions in a powerful and
proven way. When young lawyers begin working at a law firm, they
learn their trade by working with more experienced lawyers. When
young doctors begin their professional career, they intern at a hospital for a couple of years and receive training from seasoned specialists. Social workers and therapists are required to put in many
hours of internships before they can launch their professional practice. Yet when new mediators start their career, they can simply
hang out a shingle and wait for the phone to ring. What’s wrong
with this picture? I believe that it would be useful, and is even imperative, to model our professional careers after the professions that
have preceded us. Developing a mentoring approach that brings
new people into the fold is crucial.
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!
Continuing to
Grow the Profession
Right now, most mediators have gray hair and no hair. There
needs to be a methodology of getting young people into the
profession. Co-mediating, associate mediating, starting with
smaller cases: How can we bring new people into the fold?
Sometimes it’s natural—a judge retires, and he’s also a good
mediator. People just coming out of law school are probably
not looking at the opportunity to mediate.
The question of how to continue to grow the profession is
a responsibility mediators have to the profession. The young
have a responsibility to do it ethically, to be involved with
seasoned mediators in a way that respects the process.
First, we need to bring new people in without having to be
competitive. New good mediators are good for the profession.
The more good mediators there are, the more mediation will
be an attraction for others.
Second, let us not be so competitive that we try to undercut each other on our fees. We ought to compete based on the
good work we do, not on the price we charge. In the world of
the marketplace, frequency of mediations is driven by success,
not by price. There are areas of the country that are so competitive that the market becomes price driven, and that hurts
everybody.
Let us secure our days, come up with a reasonable fee, and
do good work.
Rod Max
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The challenge for most mediators is avoiding the fear that the
mentee will take their clients. That is a personal challenge that seasoned mediators need to overcome. My associate, Mariam Zadeh,
feels that “If you choose not to take on an apprentice out of fear
that he or she will become your competitor, the field will suffer. We
should want to contribute to the field, and we should find people
who we think have potential and are qualified, and impart some of
our experience to them.”
If you think that it would be just too much trouble or too dangerous, competitively speaking, to take on this sort of “apprentice,”
think again. On an emotional, mental, and spiritual level, mentoring can be a valuable personal growth experience. On a more practical level, the mentor-mentee relationship is a two-way street, and
business moves in both lanes. Being a mentor can actually improve
your business and your bottom line. In fact, a mediator who takes
on this challenge today is often viewed in the marketplace as someone who has the confidence to give of themselves without concern
for losing business opportunities. The fact is, there’s a lot of conflict
out there and plenty of business, and as mentor you receive a percentage of your mentee’s fees. Not only that, but you can actually
create new business opportunities. Just as money you invest in a savings plan compounds in value, new opportunities compound because of good “press” and increased exposure to others, and through
market segmentation.
If you’re a successful mediator, think about imparting some of
your hard-earned wisdom to the next generation of mediators. If
you’re just coming up, think seriously about the value of finding a
mentor.
Hopeful Trends: Partnering Across Borders
Globalization is a buzzword that attracts a lot of opinions on both
sides. But inarguably the increasing influence of the Internet and
the “flattening” of the world we are hearing so much about have
brought another hopeful trend: more partnering opportunities for
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mediators across national borders. A mediator in London, for example, may ask a colleague from the United States to assist in a large
business dispute so as to give the parties a crosscultural perspective
as they begin the process of decision making. Or disputes involving
speakers of different languages might require drawing in mediators
from around the world who understand the process of facilitation
and might be able to communicate better with the current mediator’s clients.
Rick Weiler feels that in the future, “Mediation will increasingly
be used to resolve transnational commercial disputes. It has a role
to play in the furtherance of international trade and globalization.
The United Nations has adopted a model law on international
mediation in recognition that mediation will have an increasing
role to play in the future, more so than arbitration. England, Belgium, New Zealand, Australia, Bosnia-Herzogovina, various African
countries, South America, the Caribbean . . . mediation has continued to grow internationally as familiarity with its effectiveness
has spread. The strength of the process is that it can help build trust,
resolve disputes sooner rather than later, and reduce costs for everyone involved. International businesses and their advisers will
increasingly want to be using this process.”
Chris Moore sees a hopeful future for mediation and dispute resolution internationally. “Mediation helps people settle disputes in
a way that is often more amicable than other alternative processes
and helps build customized agreements,” he says. “It builds integrative decisions with broad levels of support. It’s not that you don’t
need leaders or decision makers, but historically cultures have relied
more on command decisions than on building collaborative decisions through cooperative processes. As democratic values expand
globally, you need to have more structures that help people make
collaborative decisions.”
The world has flattened, according to futurist Thomas Friedman.
From a marketing standpoint, there’s nothing restraining us from
inviting international colleagues to co-mediate cases. Bringing our
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!
The Future Is Proactive
Industry-wide, the trend has been to go from litigation to arbitration, and now the vast majority of work is in mediation.
But as great as mediation is, it’s still reactive. I believe that
the future of ADR will be proactive. This trend is reflected in
mediators’ expansion and specialization. We see mediators
today who are facilitators, conciliators, and mediation consultants. We see more and more corporations using those
proactive forms of communication and negotiation. They still
use mediation and arbitration reactively, but I think consumers will have a preference for more proactive work as time
goes on.
Right now, we do see better use of mixes of processes. In
hierarchical environments—hospitals, hospitality, construction projects, film studios—we see a much better use of processes in different situations. For example, corporations used
to simply arbitrate all issues. Then they learned to mediate.
Now they have learned to use us intelligently. For example, a
hotel might decide to settle a dispute with a linen supply company by a quick and efficient arbitration. There are a lot of
linen supply companies out there, so this particular relationship is replaceable. But the company might choose to mediate situations where long-term relationships are crucial:
employer-employee disputes, interdepartmental conflicts, and
so on.
Overall, we see a better use of process by corporations and
governments when there is a lot at stake. We’ve really come
along way over the last thirty years.
Natalie Armstrong
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practices into the digital era allows us to communicate through
video and Internet protocols quickly and effectively anywhere in
the world. Mediators are no longer limited by geographical boundaries. For example, if we are handling a case in California and have
to wake up a decision maker in London to respond in a last-minute
effort at settlement, we can do it.
Hopeful Trends: Public Policy
and the Nonprofit Service Sector
CDR Associates, the firm in which Chris Moore and Bernie Mayer
are partners, has applied collaborative decision making to a number of public policy matters, including disputes regarding transportation, land use, water, and hazardous waste. Moore believes that
these arenas are growth areas for the future. “People want to go into
mediation practice fields where their business can be economically
viable. Public policy is one of those—the issues are big, lots of people are involved, the social questions are important, and clients
have funds to support collaborative processes. But it’s one of the
harder areas to break into because it is complex, and if people have
a problem to solve they go for intermediaries who have experience.
Still, new people can break in with local planning departments and
local municipalities, to build up their track record.”
Natalie Armstrong, director of the Institute for Conflict Management and president of Golden Media in Santa Monica, California, says, “Policy changes are moving toward an intelligent,
proactive use of a proactive process. In the EU, for example, we see
chambers of commerce utilizing mandatory proactive communication, negotiation, and mediation where it’s necessary. They have
learned from U.S. mistakes and successes, and have chosen only to
replicate the successful movements. In the United States, I believe
we will continue to see more and more intelligent use of neutral
services.”
Mediating in the area of public policy might not be as financially
lucrative as mediating the litigated case, but it may be more important in the global realm for its contributions to society, helping solve
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disputes between warring factions in Afghanistan, working with various constituencies to divide up water rights along the Colorado
River, or helping Native Americans figure out how best to work
with the federal government. These kinds of issues require intense
communication and facilitation abilities and are critical to the success of society. The mediators who do this type of work deserve
more recognition than they currently receive. Many people go into
the mediation field motivated by high ideals; few stay the course.
Hopeful Trends: Dispute Resolution
as a Choice, Not an “Alternative”
“I think the mistake is to focus on mediation per se,” says Bernie
Mayer. “Our field should be the field of conflict; the question we
should ask is, how can we engage ourselves in professionally viable
roles that are helping us engage in conflict?”
Chris Moore agrees. “How do you frame making a living as a dispute resolver rather than just as a mediator? Dispute resolvers mediate and facilitate. They do situation assessments (not just present
strengths or weaknesses of parties’ cases, but identify issues and
processes for working them through as disputes). Dispute resolvers
also teach in universities or conduct independent training programs.
Many people have put together an interesting practice that is a
combination of things. CDR does all of these. For us it’s a good
combination because each area of practice—situation assessments,
conflict analysis, strategy design, coaching, training, facilitation and
mediation, dispute resolution systems design—feeds and nurtures
the others. To teach you have to think, and thinking makes you a
better intermediary or mediator.”
There is clearly a trend in law schools today to develop programs
in the field of dispute resolution. I believe that the content of such
programs must be integrated into the bar examination. Once that
occurs, every law school will be teaching courses in negotiation and
mediation. The new generation of lawyers will view dispute resolution
as less of an alternative and more of a choice among many options
for resolving conflicts.
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A Comprehensive Vision
for the Future of Mediation
1. Our judicial system would have a robust voluntary
dispute resolution component, which would probably
be mediation. Mediation for all kinds of disputes would
be available essentially through the judicial system and
the private sector.
2. Organizations would have a voluntary dispute resolution process in place, such as early-dispute facilitation
or mediation, as part of an overall complement of procedures, as well as arbitration and final decision making, rather than simply ignoring problems or leaping
to adversarial procedures and decisions.
3. Public policy dialogues would expand to help our diverse
society build greater degrees of consensus around public
policy issues, and there would be negotiation of what
the significant public policies should be.
4. We would have increased use of regulatory negotiations to develop new rules and procedures around very
contentious issues where there are large numbers of
stakeholders.
5. Nongovernmental mediators would work with the
United States on broader international issues, known
as Track II Diplomacy, and there would be an increased
use of nongovernmental mediators in Track I formal
diplomatic negotiations, or to develop proposals where
direct government involvement is not possible or desirable. Clearly, the funding for these efforts would have
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to come through government agencies—national or
international—or international donors.
6. There would be growth in collaborative decision making
or dispute systems design, which helps organizations put
together these voluntary decision-making components.
Chris Moore
ENVISIONING THE FUTURE
In order to compete in the adult world of professional mediation,
we must outpace the learning curve of the markets we service. That
curve involves the increasing sophistication of our clients’ abilities
to understand and utilize the various dispute resolution options
that have become available. One way to do this is for mediators to
go back to their roots of collaboration. Like the expert trial lawyer
who with increased experience and education gets better at crossexamining witnesses, the expert mediator can begin to collaborate
with his or her colleagues to learn new techniques that serve the
profession. With today’s technology at our fingertips, we could easily set up chat rooms to share techniques. Networking with colleagues through Internet listservs and blogs helps bring together
new techniques and strategies that we can incorporate in cases.
This is something the International Academy of Mediators has
been doing for years.
Co-mediation is another exciting challenge for the future. Imagine a multiparty construction defect case in which you’ve got ten
different constituencies that need to be addressed concurrently in
the course of a mediation session. Wouldn’t it be helpful to have a
trusted colleague co-mediate that dispute so that the parties never
feel isolated and bored? That type of collaboration is critical to our
continued success as a profession.
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On a more personal level, another way to stay current is to make
sure we don’t take our cases for granted. Though we are all territorial creatures, our clients will not be loyal forever. We must work to
maintain their trust. We can also elevate the requirements of continuing education in order to accentuate our commitment to improving mediation. This would overcome our clients’ concerns
about dealing with a repetitive, noncreative process. We would, in
essence, empower our clients by giving them the process they need.
Although the responsibility for change rests significantly on the
mediation community, the litigation community would be well
served by learning from past experience as well. Consider the course
of court-ordered arbitration since it was conceived in the early
1970s. Initially it was a success for both the courts and the litigants.
Cases would resolve following arbitration because lawyers took it
seriously. Cases were prepared and presented in a formal manner
such that they could be thoroughly evaluated before trial.
As time passed, some lawyers began attending arbitrations without preparing, taking the easy road of asking for a trial de novo rather
than spending the time getting the case prepared. Statistics on the
successful resolution of cases following court-ordered arbitration
took a nosedive. In fact, the courts became so fed up with the outcomes of court-ordered arbitrations that they have, for the most
part, stopped referring cases into that system. Instead, the courts
have preferred to refer the cases to mediation, where the parties can
actually have a binding outcome following a successful mediation.
Many of my students who volunteer as court-ordered mediators
tell me that lawyers are simply not preparing. They are no longer
taking the process seriously. Defendants come into the mediation
without an intent to negotiate in good faith, and the cases lock up
quickly and are put back into the court system. It would seem that
history is repeating itself, in the court system at least. Like the arbitration system before it, the mediation system that has emerged
through court-ordered programs has begun to slip into indifference.
Where do we go from here? Both sides need to take responsibility for our state of affairs. Mediators could do a better job being cre-
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!
The Conflict Field Should
Be About More Than Mediation
Mediation has always been around and always will be around.
The question is how much it will be institutionalized, how
much it will be part of a freestanding field of conflict specialists, how much it will be subservient to the legal profession.
Right now, I think that’s up in the air. If we want conflict to
be dealt with differently in this world, we want people to learn
to use their very best wisdom. I think that’s best served by
having a rich and diverse field of conflict specialists, of which
lawyers are a part. I think mediation is healthiest when it
draws strength from many fields but is seen as a freestanding
field within the conflict arena.
We also have something to offer in helping create and
conduct systems for organizations and communities to manage conflict, and in serving as allies to disputants. Traditionally, lawyers play an “ally” role, as do coaches, strategists, and
advocates of a different kind. I think the field needs to think
more broadly than just about mediation and resolution. If people are embroiled in conflict, they are not necessarily interested in resolution. They may be interested in taking the
conflict to a deeper level or in expanding its reach. We can
help people do this in a constructive way that leaves the
potential for resolution open.
The conflict field should not be just about mediation. It
should be more than that. Whatever we do on our individual
cases, the cumulative effect must be to change the way we
handle conflict so that it is less destructive and energy draining for systems and communities.
Bernard Mayer
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ative and learning techniques that are less predictable. Litigators
could invest in preparation and take the process seriously. Or better yet, we could eliminate the court-ordered system altogether and
let the marketplace decide which cases should go to mediation.
Ideally, as a case is filed in court, all parties would select a mediator and select a date far enough out for them to learn what they
need to know about the facts of the case before the matter goes to
trial. In other words, the court would stop imposing time restrictions on when a case should go to mediation and simply acknowledge that the lawyers, as part of their practice, will voluntarily
attempt to mediate before the case goes to trial. This already happens in some communities, such as Toronto, but it has yet to extend
across the board.
TRACKING YOUR
FUTURE IN MEDIATION
People who are at the beginning of their mediation career often
believe that there’s an ideal world in which they will be successful
beyond their wildest dreams. They can see that wonderful world of
wall-to-wall bookings and ever-rising fees way out there on the horizon, and they’re sure that if they just keep swimming, sooner or later
they’ll get there. Even the best-known and most successful mediators are not immune from this kind of thinking. As one of my colleagues recently confided, “I’m going to bill $1.6 million this year.
That’s a lot of money, and I don’t have that many expenses. And I
don’t feel like I’m there yet. I feel like there’s so much more I should
be doing!”
I can empathize with this guy, and I’m willing to bet that many
of the successful mediators who shared their thoughts in this book
can too. But I also know that you will never reach that ideal world,
no matter how fast or how far you swim. In fact, sometimes it seems
that the more you swim, the farther away it is. In reality, you’re
never going to be able to swim across that ocean to get there. Even
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if you hit dry land, you’re very likely to say, “This is a nice place,
but I need more”—and jump back in the water.
In fact, as any impartial observer could tell them, they’ve
reached the other shore—the one they were swimming toward—
but they don’t recognize it. That’s because the goals they set are so
impossibly high—I’m going to be the next Tony Piazza!—that they
block their view of what’s really there.
Set workable, achievable goals and allow yourself to measure
your real progress. Know that two lawyers can soon create ten clients
for you. Swim steadily, with a strong stroke, and keep your eye on
that speck of land on the horizon. All along the way, pay attention
to where you are. If you find yourself swimming in circles, get back
on course. And when you feel the ground beneath your feet, stop
swimming, rest awhile, and enjoy the amazing, successful, and lucrative career you have created for yourself.
TOP-TIER STRATEGIES
1. Pay attention to new regulations and trends in
mediation.
They could affect aspects of the process that you take
for granted right now. Read the law journals and participate in dispute resolution trade associations that have
their finger on the pulse of the legislation in your area.
2. Remember that success is a full-time job.
If your goal is to be highly successful financially and professionally, you must set your goals high and keep your
eye on the ball. Becoming successful and ensuring that
success is ongoing is a full-time job in itself—it’s work
you do in addition to the many hours you spend in actual
mediation. No matter what trends and directions the
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mediation profession follows in the future, two elements
must always work in tandem to ensure your success: good
mediations and effective self-marketing.
3. Know when you’ve reached your goal.
If you love mediating, it can be much easier to work nonstop and feel that you still haven’t worked enough to stop
periodically to assess how far you’ve come. If your goal
seems perennially out of reach, stop and take a good look.
You may find that you do indeed have a few more miles to
go before you get there; but you may instead find, to your
surprise, what those around you have long known: you’re
already at the top!
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MIND-SET
View Your Work as a Calling
If you thank your good fortune every day that you are able to practice in this field, you are in the right career. Viewing your work as a
calling makes it automatically more than “just a job”: it is something you are drawn beyond choice to do, and the satisfaction it
provides is enormous. Without this feeling that mediation is what
you were born to do, your chances of reaching the top of the field
are slim. With it—and with a lot of hard work and perseverance—
the sky’s the limit.
Begin Thinking of Yourself as a Mediator Now
Even if you are just starting out, reframe your self-concept immediately: you are a professional mediator. Let this understanding inform
everything you do, and wear only one professional hat. When you
do, you’ll become more attuned to the small and large conflicts that
inevitably crop up in daily life, and you’ll find yourself thinking
about ways to solve them. You’ll replay each step in a mediation
afterward, looking at it from all angles and seeing what you might
have done differently. You’ll seek out training and education to
hone your skills. You’ll find that the challenge of mediation—finding the key that uniquely unlocks each case—will broaden your
mind and abilities and sharpen your problem-solving skills. Living
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and breathing mediation in this way will solidify your intention and
your identity, and align you with your life’s work.
Practice Mediation Skills in Your Everyday Life
You don’t have to be in the caucus room to practice mediation. Life
provides endless sources of conflict and a fertile field in which to
hone your skills. Whether you find yourself mediating a fight between your two small children or a misunderstanding between a
checkout clerk and a customer, you’ll learn something you can use
down the line. More important, perhaps, paying attention in this
way will reinforce your identity as a mediator.
Be a People Person
Mediation is all about facilitating communication, and that requires
the ability to reach out, understand, connect, and care about what
happens to a wide variety of people. Being an effective self-marketer
of your mediation business also requires you to connect positively
with all sorts of people. Effective mediators come in all personality
types, from introverts to extroverts and every shade between. But
virtually without exception, the most successful are those who reach
out to others, enjoy being with old friends and making new friends,
and show a genuine interest in the well-being of others. This comes
naturally to some mediators; for others it’s a learned—but vital—
skill. If you’re not naturally a people person, do everything you can
to learn how to be. Learn to speak in front of groups at a Toastmasters club; practice giving the person you’re talking to your undivided—and sincere—attention. Become an expert listener. And
practice, practice, practice by immersing yourself in group situations.
Then just relax and enjoy the ride.
Embrace Rejection
The road to success is paved with rejection. When clients are
choosing between two or three qualified mediators, rejection is
inevitable for someone. It will be an ongoing part of your world, no
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matter how high you go. If you can’t learn to love rejection, at least
learn to shrug it off as part of the process. Remember all the good
things they must have said about you to put your name on the table
in the first place!
Stick with Every Case
Nobody ever became successful by giving up. Do whatever it takes
for as long as it takes to settle every case. This is an expected and
necessary part of negotiation. A reputation for giving up too soon
will put you in the “do not select” category and sink your career
before it starts. If the timing is not right to finalize a deal at the
mediation, your assertive and persistent follow-up—on the phone,
by email, in person, and in remediation—will usually settle it. If the
case doesn’t settle—and a few never will—you, your clients, and
the parties will know that you went beyond the call of duty in your
efforts to bring them closure.
Embody Trust
Develop a reputation as a person who can be trusted. People who
don’t trust you won’t hire you—it’s that simple. The most successful mediators are the ones who inspire others to trust them and who
hold that trust sacred. Once you are hired, you must continue to
earn clients’ trust, even under the worst circumstances, when conflict has made the clients unbearable to be with. Be balanced and
fair in your approach, and you will live to mediate another day.
Practice Authenticity
Authenticity is the bedrock on which trust is built. Being authentic requires you to be strong enough to work with ambiguity, day in
and day out. This ambiguity sometimes leads to an internal conflict
over how to be honest with yourself and others, yet be fair and trustworthy. You can’t always know where things are going or how you
are going to get there, but you must lead from an honest heart. This
will give you the ability to walk the fine line between deception and
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honesty and to make the parties feel that you always have their best
interests at heart.
Practice the Three P’s:
Patience, Perseverance, and Persistence
Every single mediator who made it to the top did so because he or
she understood the importance of patience, perseverance, and persistence. It can take three to five years to build a successful mediation practice, so relax, dig in your heels, and prepare to be there for
the long haul. Believe in your abilities, believe that you can and will
build a successful career, be sure to back up that assurance with real
skill and real successes, and then stay the course.
Invest Time, Capital, and Energy in Your Business
Becoming successful, contrary to rumor, is more than a matter of
luck: it requires a tremendous commitment of time, capital, and
energy. Mediate well and pour everything you’ve got into making
sure people know you and know you’re in business. Your personal
investment of time and energy—on a continual basis and always in
positive, productive ways—will pay dividends in goodwill, interest,
and new business.
Stay the Course
The mediation field is littered with the bodies of mediators who
gave up too soon. It takes perseverance to make it to the top of this
field, and that means giving everything you do a fighting chance. If
you send a thank-you note to a client but you never hear from him
or her again, don’t assume the thank-you note went unappreciated.
Follow that up with a phone call to see how things are going and to
ask if there’s anything you can do for him or her. If that doesn’t pay
off immediately in a booking, don’t despair. If you continually put
your positive energy out there, eventually you will begin to see
returns. It’s important to remember that your marketing efforts will
probably not pay off overnight. If you stay the course, your more
likely to finish in the lead!
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Be Creative and Innovative
Mediation is a fertile field for creative thinkers. Be as innovative
and persevering in your marketing efforts as you are in your efforts
to find the path to settlement for the most complex conflicts. You
may dress conservatively for work, but your clients will expect the
unexpected from you in settling cases. Demonstrate your brilliance
in everything you do.
Stay Fresh to Survive
Everyone gets tired at some point, but you’ll survive in this business
by making an effort to stay fresh in your approach and your outlook
toward your practice. Do all you can to maintain your compassion
for the parties. If, despite your best efforts, you find yourself getting
stale or robotic in your approach, take corrective measures fast. You
can get your blood pumping again by collaborating on ideas with
other mediators or taking “educational vacations” to exercise your
mind by learning about faraway places and far-out ideas.
Always Express Gratitude
It can’t be stressed enough how personal the mediation business is.
The same points of etiquette that apply in social life are magnified
in the intense emotional arena of a mediation. After a case is over,
always show your appreciation to clients and parties with a note or
email of thanks to express your gratitude for their participation or
professionalism. This is a genuine gesture of appreciation and an
invaluable marketing activity. Clients will always remember this
small but important show of human connection.
GOALS
Define What Success Means to You
You can never reach the Promised Land if you don’t know where it
is! What does success as a mediator mean to you? Just saying you want
to be “successful” is too general a goal to reach. Is success having a
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career that allows you to pursue your chosen work? Does success
mean making a boatload of money? Perhaps for you it means enjoying your work, helping people, earning a substantial living, and
spending time with your family. Whatever your goals, clearly defining them frees you to focus on achieving them.
Set Achievable Goals and
Continually Assess Your Progress
Once you’ve defined your success goals, set your financial and business goals. Make your goals very concrete. What has to happen in
your practice—at every stage of the game—for you to reach your
ultimate goals? Assess your progress regularly. You may be surprised
to see just how far you’ve come in a relatively short time.
Create a Personalized Goal Tracker
Make a goal-tracking sheet for your mediation practice. Tracking
your goals can be a powerful motivator and can help you identify
and avoid obstacles before they appear, encourage you to brainstorm
strategies and solutions, and help you pinpoint the intended results
of your efforts. Use the goal tracker in Chapter Five as a template.
Create a Financial Road Map
When you’re struggling to fill your calendar, it can be difficult to see
how you’re ever going to make a living as a mediator. Build a realistic picture of how your growing financial success will look by creating a financial road map. Graphing your projected gross revenues
over a ten-year period is an effective way to demonstrate to yourself how your income can incrementally increase. This simple chart
can help you persevere toward achieving goals that seem unattainable but soon become surprisingly doable. As you would with any
projection, return to it periodically and reassess your progress.
Build Marketing Efforts into Your Schedule
Create a schedule of marketing projects you are working on and a
time line for completing them. When you have an empty space in
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your calendar, pull out one of these projects and work on it. Or
schedule one day a week on a regular basis to devote to marketing
efforts. Mediating all the time may be more enjoyable, but it won’t
get your name out to the marketplace effectively.
Know When You’ve Reached the Top
You can keep striving forever, long after you’ve actually achieved
your goal. If you’ve been too busy to see that you have actually
become a successful, in-demand mediator, stop right now and smell
the roses. Enjoy your success and be sure to share it with others.
BUSINESS
Make a Business Plan
You can’t go wrong starting your business by creating a business
plan. This is where you define your business and nail down your
goals, set out your financial parameters, and conduct a cash flow
analysis. If you are new to the business end, get help from a CPA,
financial consultant, or general business consultant. This will help
you take your business seriously and ensures a firm foundation from
which to proceed.
Don’t Quit Your Day Job; Do Quit Your Day Job
Successful mediators say, “If you want to become successful, don’t
quit your day job!” And then they quickly follow up: “But if you
want to be really successful, you have to make a full-time commitment.” What are they talking about? As we’ve said elsewhere, it
takes three to five years to build a successful mediation practice. At
the beginning of your career, especially if you are making a transition from another career, you will need a source of additional
income—so don’t quit your day job right away! Eventually, however, you must take the plunge and commit to mediation as your
full-time career. While you’ve still got your day job, devote meaningful time and thought to figuring out how you are going to make
the transition and meet your financial responsibilities.
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Look to Other Mediators
as Good Sources of Business
Competitiveness is bad for the mediation business. Most professional
mediators are friendly, outgoing people who form long-lasting friendships with their peers. Getting involved in professional mediation
organizations can often result in referrals from other mediators who
are either overbooked or in geographically challenged locations.
Explore Market Segmentation
If your goal has been to reach the high end of the market and you’ve
achieved it, it may be time to set a new goal. Assess your practice to
determine whether it is feasible for you to create opportunities at different levels of the market, such as large complex cases and smaller
employment cases. Depending on where you are in your practice,
you might consider aligning yourself with someone who handles the
segment of the market that you don’t handle, and developing a referral relationship between the two of you. This can result in increased
business for both of you, a larger client pool, and a new set of contacts; it can also reenergize your interest in your business.
Enjoy the Good Times and
Make the Most of the Down Times
Accept it: your practice will have cycles and seasons. The phone
will ring off the hook at times and get dusty at others. The key is
not to panic but to use your free time wisely. Focus on tasks that will
continue to put your name in lights, such as writing a column for a
legal journal. Learn to enjoy and use the down times just as you
enjoy the busy times.
If Entrepreneuring Is Not
for You, Consider Joining a Panel
You need to have a reputation for success before you’ll be asked to
join a panel, so this is not a decision you can make at the beginning
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of your career. However, if you find that you’re not cut out to be a
sole practitioner, joining a panel may be the right career move for
you. Panels make your business life easier by providing office space
and by handling marketing, scheduling and administrative functions, and billing and collection. On the downside, you run the risk
of being perceived as a commodity rather than a name brand. If you
do choose a panel, work hard to maintain your uniqueness.
WORKPLACE
Learn to Work Anywhere
It’s the rare mediator who has a mediation center and never leaves
it. Some mediators are on the move virtually every day. Learn to
work effectively wherever you are. With a laptop or PDA, you can
catch up on email or write an article while you’re waiting for a plane.
Make use of long driving times to call clients or catch up on administrative conversations with your staff. If you’ve had a long day at
work, don’t stay until 2 A.M. finishing up paperwork. Go home, relax,
and finish your to-do list in the comfort of your home office.
Let Your Workplace Reflect
Your Personality and Interests
If your mediation center expresses your interests and personality,
you’ll form an immediate connection with clients. It will be clear
that you enjoy being there, and they will enjoy getting to learn
about you as a person. Knowing you in this way relaxes parties and
allows them to feel more comfortable in opening up about sensitive
details of their lives. And for you, it’s a comfortable place to work!
Invest in Creature Comforts
Invest in the comfort of your clients and share something of yourself
in your caucus and conference rooms. Never underestimate the
power of a comfortable chair, a good cup of coffee, and an interesting
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environment. When you do everything possible to meet clients’
needs and help them feel at ease, in terms of both their case and
basic creature comforts, they will want to return.
Get Rid of Your Desk
Remember the rule: “No desk, no clutter.” Sitting at a desk all day
gives you the false impression that you are busy. When you’re at
work, be at work. If you’re not mediating, work on marketing your
business or take a deserved day off. You can always set up your laptop on the conference table if you have to send email or write an
article. If you really need a desk, keep it at home.
Declutter Your Work Life
A desk isn’t the only way to accumulate clutter: you can also clutter
up your work life with too many interesting activities—teaching,
writing, taking courses, meeting and greeting—that keep you from
actually getting cases and closing them, which is the heart of your
real work. Look at your activities and eliminate the ones that are
getting in your way instead of helping you.
Avoid the Crackberry Syndrome
We tend to love our toys, and being able to stay in touch wherever
you are is invaluable. But when your need for communication
becomes obsessive and constant, you detract from your professionalism. If you’re constantly checking your email or your voicemail during a mediation or client meeting or lunch, you are not present with
your clients. People who feel they are not holding your interest will
soon find another mediator who will give them undivided attention.
POSITIONING
Don’t Claim to Be a Generalist
It makes a certain kind of sense to think that if you put yourself on
the market as a mediator who can work on any type of case, you’ll
have a chance at every case that comes along. In fact, the opposite
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is true. You can’t be all things to all people. If you tell the marketplace that you handle “all” types of mediation, thinking that you’ll
get “all” types of cases, you’re in for a rude awakening. This statement is so general that it’s meaningless, and it just dumps you back
in the steaming pot of mediators who are climbing on each other’s
backs to leave the crowded bottom tier.
Know Something About Something
When you are developing a practice, you’ll put yourself way ahead
if you lead from your strength. Perhaps you have been a lawyer specializing in mass torts or a psychologist with a specialty in bringing
together disparate groups of people or an insurance claims agent
with an inside knowledge of the insurance industry. Whatever your
background, find a way to make it work as a focus for your mediation practice. Why try to break into a substantive field of mediation
that you essentially know nothing about when you already have
knowledge and contacts in a specialized area? This is no time to
reinvent the wheel.
Choose Your Market Niche, Target It, and Stick to It
Once you’ve chosen your position in the market, market to the
group of people most invested in it. For example, if your expertise
is in intellectual property, be sure to get the word out to this community that you are available and interested in these cases. Give
talks targeted at intellectual property lawyers or software manufacturers and write articles in the appropriate journals. Attend functions of groups interested in intellectual property and get to know
the players and their concerns. Soon this will make you the go-to
mediator for intellectual property cases in your community.
MARKETING
Mediate Well
The best advertising is not the $2,000 ad you might place in the
local legal journal. It’s the great work you do with your current
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clients. Satisfied clients have a strong desire to be your best advocates. Keep them satisfied, and you’ll keep them coming back.
Give People a Story to Tell About You
What’s the buzz on you? If you’re not being talked about in the marketplace, you’re just one mediator on very long list. If you give people a great story to tell about you, it will be your most potent
marketer. A reputation for closing cases is the best story there is—
but somebody has to tell it for you. To make this happen, get
involved with your target groups, such as bar association committees, and participate actively. Write articles for selected publications
that your constituency reads. When people know you, they’ll talk
about you. In short, get your name in lights and work hard to keep
the lights on.
Understand Supply and Demand,
and Make Yourself a Standout
Here’s the brutal reality: there are far more mediators than there are
mediation opportunities. Think hard about who you are and what
makes you unique, and how you can help your clients and potential clients recognize that uniqueness. Find creative, compelling
ways to help yourself stand out from the pack. Put your name and
face in front of your clients with enough frequency that you become
familiar—a known quantity they respect. Whatever you do, be discriminating in the marketing choices you make for your practice.
Cultivate Champions
Mediators, especially sole practitioners, often go it alone in establishing a business. It can be a tremendous boon when successful associates tell your story, recommend your services, and generally promote
your career out of friendship and admiration. Do what you can to
develop sincere relationships with influential people who believe in
what you do and who you are. These are the people who will be your
active sales force in the marketplace—sometimes without ever realizing it.
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Let Your Props Tell a Story About You
Decorate your workplace with items that have meaning for you;
they function as props that give people details for the story they tell
about you. You will be the mediator who not only closes cases but
also has the hand-carved Native American talking stick or the autographed baseball from the early years of the sport or the fascinating
book of rare maps. This kind of marketing is effective and fun, and
it takes on a life of its own.
Understand Teaching as a Form of Marketing
Teaching can serve as a great entrée to new clients. Many lawyers
who take your course will never go into the field full time, but they
are likely to think of their mediation instructor the next time they
have a case going to mediation. Another benefit of teaching is the
marketing your course does for you: many schools create brochures
and ads underscoring the high quality of their instructors, and your
name, CV, and photo will be seen by hundreds of people—without
your having to lift a finger.
Use Speaking and Writing
to Sell Yourself as an Expert
Speaking or writing on any old subject probably won’t get you far.
But you can develop a reputation as an expert in your particular area
of expertise if you become an effective speaker and interesting writer
who can make these issues come alive. Bring this effect home by
focusing on your target audience: speak to interest groups and publish in journals your clients will read.
Identify the Gatekeepers and Go After Them
If you the people who select mediators, you can cultivate them. Parties rarely select mediators, but lawyers have to settle case after case.
That’s why they are the obvious gatekeepers when it comes to
selecting mediators for litigated cases. Government agencies are also
gatekeepers for public policy disputes. Sometimes corporate clients
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keep track of who they like to use for mediation in various locales.
Once you’ve identified them, go where they congregate and make
some new friends.
Remember the Butterfly Effect
You never know how large an effect your smallest effort will have.
Don’t think you have to go for the big score every time—a talk you
give at a brown bag luncheon may impress a listener with your expertise. That one listener tells a friend about you, who in turn tells a
friend who is looking for a mediator who understands just this subject—and you may land the case that proves to be your tipping point.
This is not an effect you can try to control—that’s just about impossible. It is possible, however, to be aware of the butterfly effect and
ensure that all your efforts and interactions are as positive as possible.
Fish Where the Fish Are
It’s pointless to put your efforts into impressing groups that will
never use your services. It’s good to attend functions, but it’s a waste
of time if your potential clients aren’t also in attendance. Always
target your talks, articles, and other marketing efforts to people and
groups that share an interest in your chosen niche. Socialize with
the people you want to do business with—and have fun doing it!
Be the Last Person They Speak To
The last person someone speaks to is the first person he or she thinks
of. Check in regularly with clients and potential clients to see how
a case is going or just to ask if there’s anything you can do for them.
Keep your name in front of them by writing articles for journals they
read or speaking to groups they attend. The next time they’re looking for a mediator, you just may be the first person on their mind.
Continually Update Your Database
Whenever you meet new people, ask if it would be all right to add
them to your database—and, if you have email newsletter, to include them on your mailing list. Keep notes on where you met, their
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affiliations, cases you have been involved in together, and how they
settled. Use your database as a reference when you make contact
calls. Send thank-you notes and cards as appropriate.
Create a Web Site That
Invites Personal Contact
Everybody needs a Web site these days—the trick is not to overload
people with too much information. Make sure your Web site provides just enough information to entice people to contact you to
learn more. Give them the basics—your CV, information about your
practice, your picture, articles you’ve published, testimonials or good
press you’ve received—but make sure to leave them a reason to call.
Why? Because ultimately it’s the personal connection they make
with you—not the bits and bytes about you—that they’ll remember when they’re looking for a mediator.
Make Sure Your Email Newsletter
Is Not Seen as Spam
Nobody needs more spam in their inbox. If you put effort into creating an email newsletter for your database, make sure to ask people if they want to opt in—don’t just send out email because you
can. Once they’ve opted in, give them something valuable to look
forward to: new information or an innovative tip or technique they
can put into practice.
Cater to Different Learning Styles
Some people read the New York Times online; others get it delivered to the front door. Everyone takes in information differently.
Make sure your marketing covers all the bases—visual, tactile, up
close and personal—to respect all learning and information preferences. A personal card in the mail, an email newsletter, a link to
your Web site, an article you’ve recently published, a small ad in a
legal journal, your speaking at a luncheon—a combination of approaches will have the best chance of reaching the greatest number
of people.
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Frequency Trumps Size
Regularly place small ads with your firm name and photo in targeted
journals just to serve as a reminder that you are still in business.
Don’t expect these ads to generate business;—their fundamental
purpose is to boost name recognition.
Avoid Generic Mass-Market Ads
Generic mass-market ads may seem like a good value, but by splashing your name and face all over the media indiscriminately, you’ll
really be devaluing your name. No one ever hired a mediator
because of a great ad. The only real purpose of an ad is to remind
people that you’re still in business. Small ads placed frequently but
discreetly in the same publication will provide better value.
Be an Interesting and Interactive Speaker
Practice these five basic rules whenever you speak to a group:
1. Make sure that you are the sole speaker. You’ll be much more
memorable on your own than you would be as one of several
talking heads.
2. Control the room. Be in charge in the lecture hall just as you
are in a mediation. If you don’t control the room, you’ll lose
your audience very quickly.
3. Discover your listeners’ problems and give them solutions.
Most people go to a talk hoping to learn something they can
use in their own work. Make sure you address the specific
concerns of the group you are speaking to.
4. Be interactive. A one-way speech is usually a snoozer. Ask
for responses and engage people in dialogue to liven up your
presentation.
5. Speak to your listeners’ worldview and use their language.
Every interest group is almost like a small island nation.
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Group members have their own language and customs, and if
you don’t know them, you’ll be perceived as an outsider.
MONEY
Value Your Time and Set Your Fees Accordingly
Setting your fees too low devalues your work and the field as a
whole. Setting your fees sky high just because you think you can is
unrealistic. Assess your market realistically, then charge what you
feel you’re worth and stand firm. If you don’t put a high value on
your skills and your time, who will?
Use a Consistent Fee Scale
It’s tempting to use a variety of fee scales based on the complexity
of cases, but it can also confuse the marketplace. It’s far simpler in
terms of billing and client communications to be consistent.
Although you might lose market share in some areas, you’re likely
to gain respect and market share in areas where litigants are not
price conscious.
Make Your Financial Practices Clear
Clients don’t like surprises unless they are happy surprises. Spend
time thinking about your financial practices in regard to your
clients: Will they pay for a half day or full day ahead of time, or will
you bill them after the mediation for hours spent? Will you charge
a cancellation fee, or will you be open to rescheduling at no charge?
We all have our preferences, and there’s no real “right” way. The
important point is to make your practices clear and stick to them.
Keep Overhead Low
Keeping overhead low is key to earning a comfortable living. You
do not need to spend a lot of money on office and staff to have an
effective mediation practice. Many mediators find that they have
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no need for a brick-and-mortar workplace of their own because their
clients are law firms with their own large conference rooms and
offices. Others spend most of their time traveling to clients and
working out of town. For most mediators, staffing requirements are
also small. It’s crucial to have a warm, personal voice answering the
phone and convening your cases when you’re unavailable, but other
than that, most office functions can be contracted on a part-time
or as-needed basis.
Invest in Your Staff
The key point is to maintain a low overhead, but that doesn’t mean
you should scrimp on paying for staff. A terrific convener who answers
the phone with a smiling voice and savvy questions can be your best
agent. Your investment of time, money, and interest in that person
can result in a satisfied employee and will bring in more bookings and
more revenue. Be generous with time off and planned vacations.
Choose a Profitable Niche
All mediation practice areas are not created equal. If you are drawn to
an area that is inherently less profitable, such as community disputes
or family mediation, you will have to come to terms with the fact that
your ability to earn a substantial living will be limited. You have a very
good chance of having a profitable career if you practice in a profitable
niche area. Usually this is an area that involves multiple parties or
high-value litigated cases. If earning a comfortable living at mediation
is part of your goal, follow your interests and expertise to the practice
area that combines good fit with good finances.
Be About More Than the Money
Even if your main goal is to be among the highest-paid mediators,
never let your practice be solely about the money. Mediation is a
personal business, and a practice that always keeps people in the
forefront will be the most successful in the long run.
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LEARNING
Evolve
Mediation is a dynamic process. The success of every mediation
depends to a great degree on your staying aware and alive in the
moment and bringing to bear every skill you have. If you’re paying
attention—not only to your work but to everything you encounter
in life—you will always be acquiring new skills that will allow you
to evolve in your understanding and keep getting better at what you
do. Allow yourself to make mistakes, learn from them, and keep
moving forward.
Keep Learning
Make ongoing education and interaction with peers integral parts
of your world. Forty hours of basic training in mediation are just the
beginning. Continuing education is a lifelong affair. You can learn
from reading and writing, taking a class or teaching a class, listening to other mediators talk about their experiences and exchanging
your own views. You’ll never run out of things to learn.
Find a Mentor
If you are at the beginning of your career and aiming for the top,
find a like-minded mediator who is already successful in the field
and find a way to learn from him or her. Observing master mediators at work can teach you more in one day than you can ever learn
in a six-week course. Getting the direct benefit of their experience
and contacts can help you leapfrog ahead of the competition. But
don’t expect to get something for nothing. Ask what you can do to
help them: make follow-up calls for them, help organize case files,
help convene multiple-party cases that require a lot of scheduling
challenge, take on a case that’s too small for them. Offer to give
back in whatever way you can for the privilege of observing their
mediations and getting the benefit of their experience.
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Be a Mentor
If you’re already successful, being a mentor can actually make you more
successful. Forget about being competitive. He who dies with the most
toys just ensures that no one else will get to play with them. Concentrate instead on imparting your hard-earned knowledge, skills, and
abilities to a new generation. Taking a bright newcomer under your
wing and doing your part to grow the profession toward higher and
higher quality can be good for your business and good for your soul.
Stay Current
The only way to stay ahead of the curve is to know where the curve
is headed. Keep abreast of new laws and regulations that may influence the business of mediation. Even if you aren’t a lawyer, you
would be well advised to read law journals, as well as mediation
journals and journals that apply to your areas of expertise.
Be Proactive
Mediation is but one tool in the conflict resolution toolbox. The
future of the profession may lie in proactive communication
designed to head off conflict before it begins. Expand your world by
learning more about facilitation, partnering, and other innovative
approaches to conflict. And don’t stop at the borders of your own
country: the future of mediation is worldwide. Start now by partnering with mediators in other countries to learn about transnational disputes, working with other cultures, and issues beyond
your own backyard.
CREATING VALUE
Always Strive to Create Value
In mediation, there is such a thing as free lunch—the one you give
your parties and clients to build goodwill during a long, hard mediation. You can easily enhance your reputation as a great human
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being and a great mediator by not sweating the small stuff. During
the negotiation, you can do this by showing the clients how to
avoid the land mines and coming up with creative problem solving
and deals that actually land them in a better place than they were
before mediation. And you can add perceived value by providing
lunch, snacks, and special coffee drinks and by not charging for such
petty things as minor follow-up calls or reviewing modest briefs.
Offer Value in Your Marketing Efforts
The point of speaking in front of interest groups is to interest new
clients in your mediation skills and services. Make every effort not
to put them to sleep! No one wants to hear the same old speech,
your hour-long sales pitch, or your interpretive reading of a PowerPoint presentation. Whenever you give a talk, be sure you are sharing a new and interesting topic. If you write an article, go the extra
mile to explore an area more deeply or to share a skill or technique
you know others can appreciate and use. This kind of openhearted
approach can only bring goodwill back to you.
Give Something Back
If you are doing well, be sure to keep the flow going in both directions.
Give something back to your profession by participating in professional
organizations, sharing the wealth of your knowledge, and helping other
mediators who are just coming up. And it’s not merely okay to do a
pro bono case from time to time—it’s the right thing to do.
Explore Public Policy
Mediating in the realm of public policy—whether it involves communities or nations—may not be as lucrative as mediating litigated
cases, but it has significant impact locally, nationally, and globally.
This is an area in which creative and passionate mediators can do
good work. Even if public policy is not your area of concentration,
occasional work in this field can open you up, feed your ideals, and
recharge your batteries.
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Power Your Practice by Creating Goodwill
Set your fees fairly but aggressively, and pay back by giving back.
Your hard work and caring in a mediation, and your consideration
for everyone who is touched by your practice—your clients, your
coworkers, your support staff—will power your practice with goodwill and burnish your reputation. Concrete expressions of gratitude
and going the extra mile can take you a long way.
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About the Authors
Jeffrey Krivis began his mediation practice in 1989, when lawyermediators in Southern California were rare and litigators had to
look outside the state for experienced practitioners. Now, more than
sixteen years later and having resolved thousands of disputes—
including mass tort, employment, entertainment, business, complex
insurance, catastrophic injury, and class action matters—Krivis is
recognized not only as a pioneer in the field but also as one of the
most respected neutrals in the state.
An adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine University School of Law since 1994, Krivis
teaches negotiation and mediation skills to lawyers and judges. His
experiences as both a working mediator and academic prompted
him to write Improvisational Negotiation: A Mediator’s Stories of Conflict About Love, Money and Anger—and the Strategies That Resolved
Them (Jossey-Bass, 2006).
Krivis is past president of both the International Academy of
Mediators and the Southern California Mediation Association. The
Los Angeles Daily Journal legal newspaper named him one of the top
twenty neutrals in the state, and he has continued to appear since
its inception on the “Super Lawyer” list published by Los Angeles
magazine and Law & Politics Media. He is featured in the most
recent edition of Best Lawyers in America. Krivis received the highest rating (AV) from Martindale-Hubbell, the premier legal directory in the United States.
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About the Authors
Naomi Lucks has worked for more than two decades as a publishing
professional, writing books and helping many others write theirs (as
ghostwriter, collaborator, development editor, and coach). She specializes in working one-on-one with writers, helping them discover
the heart of their project and express their vision. Naomi is
cofounder of YouCanWrite.com, the Online Reality Check for
Nonfiction Writers.
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About the Contributors
Jeff and Hesha Abrams, of Abrams Mediation & Negotiation, Inc.,
in Dallas, Texas, are nationally recognized experts in the field of
mediation and mediation training. Having pioneered the use of
mediation in Texas since 1986, the Abramses work with lawyers and
parties across the country in resolving conflict, creating value-added
settlements, and making deals in complex business litigation, intellectual property, securities, bankruptcy, and employment-related matters. They have mediated thousands of cases over the past twenty
years.
Tracy L. Allen, based in Southfield, Michigan, is an internationally
recognized mediator, arbitrator, and ADR teacher, performing ADR
services for the International Chamber of Commerce, Institute for
International Mediation and Conflict Resolution, the Instituto
Carlo Amore (Italy), and the Straus Institute for Dispute Resolution at Pepperdine University. She has mediated and arbitrated
business and commercial disputes, securities matters, and employment disputes, and successfully facilitated complex family business
succession disputes and cases involving environmental contamination, reservation of rights by insurance carrier, alleged theft of assets,
and breach of corporate fiduciary duty.
Natalie J. Armstrong has been involved in the ADR industry as both
a practitioner and a marketer for more than a decade. She is the
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president and founder of Golden Media, a marketing company dedicated to promoting and marketing the conflict resolution industry.
She is also the author of The Essential Guide to Marketing Your ADR
Practice and managing director of the Institute for Conflict Management, LLC, which has trained more than twenty-five hundred
professionals around the world in mediation and arbitration skills
and provides mediators and arbitrators to private, corporate, and
government consumers.
Robert D. Benjamin, M.S.W., J.D., has been a practicing mediator
since 1979 in all dispute contexts, including employment, workplace, and organizational disputes, education, health care, business
and commercial, and family and divorce, and is a Fellow at the
Straus Institute for Dispute Resolution, Pepperdine University
School of Law. He presents negotiation, mediation, and conflict resolution seminars and training courses nationally and internationally. He is also the author of several publications, numerous articles,
and book contributions and is a regular columnist and editor for the
online publication Mediate.com.
Alan Brutman began his career in dispute resolution in 1991 with
Judicate, Inc., the National Private Court System, at that time the
third largest nationwide provider of ADR services. In 1993, he and
two other key members from their western regional offices, Var Fox
and Rosemarie Chiusano, established Judicate West, based in
Orange County, California, which promotes a panel of neutrals for
arbitration, mediation, and private judging assignments throughout
California and the West. The firm’s outstanding reputation for customer service and superior administration has enabled it to enjoy
great success in discovering, developing, and retaining talent and
building the practices of some of the industry’s most recognized and
successful neutrals.
Steve Cerveris graduated cum laude from UCLA with a major in
communication studies in 1981. He received his law degree in 1984
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from Loyola of Los Angeles Law School, where he was a published
author and Note & Comment editor of Loyola’s Law Review. After
fifteen years as a trial attorney, he became a full-time neutral in
1999, and since that time has devoted his practice to mediating litigated disputes.
Robert A. Creo, Esq., is in private practice as an arbitrator and mediator in Pittsburgh, Pennsylvania. He has significant experience both
as an advocate and a neutral in tort, employment, insurance, commercial, construction, real estate, and other practice areas. He has
been retained to serve as settlement counsel by law firms to negotiate complex and large claims on their behalf. Creo has served over
four thousand days as a neutral since 1979 in thousands of cases,
including hundreds of claims of serious injury, death, complex business transactions, and commercial cases involving multimilliondollar settlements.
Joe Epstein is a Fellow and board member of the International Academy of Mediators (IAM). He is a past president of the Colorado Trial
Lawyers Association and a former member of the board of governors
of the Association of Trial lawyers of America. Epstein has served as
adjunct faculty for the University of Denver and as a book reviewer
for the IAM. An author of numerous articles on mediation, Epstein
works throughout the Rocky Mountain and Southwest region.
Gary Furlong, LL.M., is a principal of Agree, Inc., in Toronto,
Canada. He has extensive experience in mediation, mediation
training, ADR, organizational facilitation, negotiation, and conflict
resolution. Furlong has worked in the areas of commercial, personal
injury, construction, shareholder, insurance, wrongful dismissal, real
estate, and workplace conflicts, and specializes in intervening in difficult organizational and workplace disputes.
Eric R. Galton, of GCB Mediators, Lakeside Mediation Center,
Austin, Texas, is considered by many to be a pioneer and defining
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force in the field of ADR. Since 1989, he has mediated over 3,450
cases, employing a variety of mediation styles, and consistently maintains a 91 percent settlement rate. Galton mediates disputes ranging
from a half day to two weeks in length, in cities all over Texas and
elsewhere, involving anywhere from 2 to 125 parties from a broad
spectrum of ethnic, socioeconomic, political, and business backgrounds. He mediates disputes in more than seventeen areas of law.
Harry G. Goodheart III is a former trial lawyer who since 1988 has
dedicated his professional energy to providing mediation in cases
throughout the Southeastern United States. He has mediated more
than twenty-eight hundred state, federal, and prelitigation cases
involving tort, commercial, construction, community, securities,
land use, environmental, probate, professional malpractice, employment, transportation, banking, hospital and health care, appellate,
agricultural, class action, law enforcement, and intergovernmental
disputes. He specializes in assisting parties and their counsel resolve
complex multiparty and difficult-to-resolve civil disputes.
Susan M. Hammer is a leading mediator in the Pacific Northwest.
She is named in Best Lawyer in America 2005–2006 for dispute resolution and is a Fellow in the International Academy of Mediators.
She has served as a mediator since 1989 and has mediated a range
of business disputes, employment claims of all kinds, personal injury
matters, and environmental, land use, and higher education disputes. She is a member of the Oregon and Washington State Bar
Associations.
Cliff Hendler is president of DRS Dispute Resolution Services, one
of Canada’s largest providers of ADR services. He is past president
of the International Academy of Mediators and the current vice
chair of the Mediation Section of the American Bar Association.
During the past thirteen years, Hendler has been retained as a mediator in more than two thousand cases, specializing in the areas of
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insurance litigation, medical malpractice, and workplace conflict,
as well as sexual abuse matters.
Robert A. Jenks is director of Mediation Arbitration Professional
Systems, Inc., in Metairie, Louisiana. He has mediated approximately two thousand cases involving tort, construction, employment, commercial, product liability, medical malpractice, maritime,
and franchise law, including complex multiparty, class action, and
mass tort matters.
Jeff Kichaven is one of California’s premier mediators of litigated
cases. An honors graduate of the Harvard Law School (J.D. Cum
Laude, 1980) and a Phi Beta Kappa graduate of the University of
California at Berkeley (A.B. Economics, 1977), Kichaven has been
a full-time mediator since 1996 and handles approximately 150
cases per year in a wide variety of civil litigation contexts. He is past
president of the Southern California Mediation Association and
coauthor of its groundbreaking amicus brief in Rojas v. Superior
Court.
Michael A. Landrum, J.D., cofounder of AMERICORD Conflict
Management Consultants and Burk & Landrum, P.A., in Edina,
Minnesota, has mediated more than twenty-five hundred cases
throughout the United States. These matters have included domestic and international disputes, have involved claims of up to $22
million, both two party and complex multi-party in diverse subject
matter areas, including commercial transactions, construction,
employment, securities, and many more.
Bernard Mayer, Ph.D., is a partner at CDR Associates, in Boulder,
Colorado. Since the late 1970s, Mayer has worked as a mediator,
facilitator, trainer, researcher, and dispute systems designer. He has
mediated or facilitated the resolution of labor-management, public
policy, ethnic, business, family, community, and intergovernmental
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conflicts. Mayer is the author of The Dynamics of Conflict Resolution:
A Practitioners Guide (Jossey-Bass, 2000) and Beyond Neutrality:
Confronting the Crisis in Conflict Resolution (Jossey-Bass, 2004).
Rodney A. Max, partner in Upchurch Watson White & Max, in
Miami, Florida, and Birmingham, Alabama, has been practicing for
thirty years in the areas of mediation, arbitration, business litigation, and appellate practice. He is one of the founders of the
Alabama Civil Court Mediation Rules, and he has conducted thousands of mediations involving more than fifteen thousand court
cases (as he specializes in multiparty and class action mediations as
well as complex two-party disputes) in areas including wrongful
death, personal injury, breach of contract, fraud and suppression,
negligence, employment and discrimination, environmental,
antitrust, insurance coverage securities, and more.
Nina Meierding is a national leader in the field of conflict resolution
and mediation and has been providing training and mediation services for twenty years. She is a former president of the Academy
of Family Mediators and served on the board of the Association of
Conflict Resolution and many other mediation and conflict resolution organizations. She is the director and senior mediator at the
Mediation Center, in Ventura, California. She has mediated over
thirty-five hundred disputes and has trained thousands of individuals in businesses, courts, school districts, agencies, government,
medical centers, corporations, and universities, both nationally and
internationally.
Paul Monicatti is a full-time professional mediator and arbitrator in
Troy, Michigan, with extensive training and experience in all phases
of ADR, and has served as a neutral in thousands of tort and commercial disputes since 1978 in virtually all areas of law, totaling over
$1 billion in resolved disputes. He has also served by court appointment as a mediator, arbitrator, facilitator, case evaluator, receiver,
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expert witness, umpire, referee–fact finder, and settlement master
in the multibillion-dollar Dow Corning breast implant insurance
coverage litigation. He is a frequent speaker and author on various
topics concerning ADR and has trained mediators privately as well
as for court programs.
Christopher W. Moore, Ph.D., is a partner at CDR Associates, in Boulder, Colorado. He is recognized internationally as a leading theorist,
practitioner, and trainer in the field of conflict resolution. He has
extensive experience in environmental, organizational, public policy,
and interpersonal mediation and is the author of the classic and seminal work in the field, The Mediation Process (Jossey-Bass, 2003).
Michelle Obradovic is an experienced mediator in private practice
with Wise Resolution, LLC, in Birmingham, Alabama. She is an
active Fellow of the International Academy of Mediators, the Association of Conflict Resolution, and the American and Birmingham
Bar Associations and is a frequent speaker at professional seminars
on advocacy in mediation and mediator skills and ethics. Obradovic
is an associate adjunct professor at Samford University, Cumberland
School of Law, and is coach of Cumberland’s ABA Representation
in Mediation National Teams.
Bennett G. Picker is a partner in the Philadelphia law firm of
Stradley Ronon Stevens & Young, LLP, where he concentrates his
law practice in the area of ADR. He chairs the firm’s ten-lawyer
ADR Practice Group. Picker has an active ADR practice, serving
principally as a mediator and arbitrator in complex business disputes
and multiparty actions and also as a counselor in ADR matters.
Picker is a Fellow of the American College of Civil Trial Mediators
and a Fellow of the International Academy of Mediators.
Rick Russell, B.A., LL.B., is a principal at Agree, Inc., in Toronto,
Canada. He has a broad range of experience in dispute resolution,
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having practiced as a civil litigation lawyer, ombudsman, mediator,
facilitator, arbitrator, third-party fact finder, and trainer. Rick has
mediated more than two thousand cases since 1988. These include
business and commercial, bodily injury, disability and general insurance, workplace and employment, estates, human rights, construction, insolvency, real estate, and land use matters.
Geoff Sharp has been involved in commercial litigation for the past
eighteen years both in New Zealand and in Australia, and until the
end of 1998 he was a litigation partner with one of New Zealand’s
largest litigation practices. He has specialized in contract, securities, banking, and commercial property litigation, and in the early
1990s began to develop his own mediation practice, which he eventually left his firm to pursue. He is now a barrister specializing in
commercial mediation work.
John R. Van Winkle is recognized nationally as one of the leaders in
mediation and ADR. He chaired the American Bar Association’s
Section of Dispute Resolution and has been a full-time professional
mediator and arbitrator since 1994. He is the author of Mediation:
A Path Back for the Lost Lawyer (American Bar Association, 2004)
and Rules on Alternative Dispute Resolution Annotated (West Publishing Company, 2005). His practice is focused on mediating complex contract, commercial, and insurance coverage issues.
Richard J. Weiler, LL.B., C.Med., F.I.A.Med., is recognized as one of
Canada’s foremost commercial mediators. Based in Ottawa, he serves
as the chairman of the National ADR Section of the Canadian Bar
Association and was named the 2004 recipient of the Ontario Bar
Association’s ADR Award of Excellence. An adjunct professor at the
University of Ottawa Law School, Weiler delivers mediation and
conciliation, arbitration, and dispute resolution training and consulting services both domestically and internationally. He has been
awarded the designation Chartered Mediator by the ADR Institute
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of Canada and is a Fellow of the International Academy of Mediators. He serves on the World Intellectual Property Organization
(WIPO) general list of arbitrators and mediators and on a number
of other mediation panels nationally and internationally.
Ralph O. Williams III has completed more than thirteen hundred
mediations and arbitrations. He specializes in disputes involving
insurance policies and coverage, bad faith, personal injury, attorney,
accountant, real-estate broker and insurance agent malpractice,
employment, real estate and business litigation.
Mariam Zadeh spent the last decade as a trial lawyer handling a variety of litigated disputes in California, New York, and New Jersey.
She practiced for both the plaintiff and defense bar in the areas of
personal injury, medical malpractice, professional liability, and mass
toxic torts. Zadeh has successfully mediated commercial, premises
liability, medical malpractice, ERISA, and other tort actions as well
as matters pending on appeal. Zadeh is an LL.M. candidate in ADR
at the Straus Institute for Dispute Resolution at Pepperdine University. As part of this program, she trained and co-mediated with
Jeffrey Krivis in a wide variety of cases. In September 2005, Zadeh
joined Krivis as a full-time mediator specializing in ERISA, employment, personal injury, and commercial matters.
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