Making it as a mediator: Tips from those in the know

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By Chuck Doran
Dolan Media Newswires

I receive hundreds of calls and emails each year from members of the bar and other professionals who express interest in becoming mediators. Their calls are prompted by an assumption that mediation will have less wear and tear on their professional lives. Others see mediation as being more congruent with their personalities.

Many recount successful negotiations at which they skillfully produced valuable deals for their clients while experiencing a deep sense of professional satisfaction not found elsewhere in their work. Others have represented clients in mediation and have concluded that they could do as good a job — if not better — than the neutral they hired.

Regardless of what motivates people to take mediation training and find their place in the field, the callers first want to know a few things: How does the mediation field work? How do they get cases once they’re trained? What has worked for other mediators over the years?

Standing on the shoulders of giants

I’m a big believer in standing on the shoulders of giants and learning from their vantage points. Here’s a summary of “best advice” from some mediation giants in Massachusetts:

David Hoffman is a mediator and collaborative lawyer at the Boston Law Collaborative, a multi-disciplinary collaborative law and ADR firm that he founded in 2003.

“When I first started mediating and arbitrating 20 years ago, there were a lot fewer mediators and arbitrators in Boston and also a lot less interest in ADR,” Hoffman says. “One of the primary sources of referrals was from the lawyers that I had met in my law practice. I have maintained a list of those contacts over the years, and I send out a letter approximately once a year to let these colleagues know what I am doing.”

Building on your experience, successes and contacts is one of the most efficient and direct ways to stand out in a crowded and unregulated field. There are no licensing requirements for mediators, which means your experience and reputation is what will determine your success as a mediator.

“ADR has become an increasingly specialized field. So, while it is essential to get trained in the general skills of mediation and arbitration, developing expertise in a specific area such as employment, construction and divorce is a good way to get cases, acquire visibility in the market and build a reputation,” Hoffman advises. “If people are impressed with your skills, knowledge and tenacity, they will continue to bring you cases.”

What to consider

I often ask callers to think about what factors they consider when hiring a professional. How long have they been active in their practice? What do their references say about them? Has their name surfaced from multiple sources? Have they been recommended by colleagues?

Those are the same questions that your potential mediation clients will ask about you.  The question is: Would you hire you as a mediator?

Jack Wofford has been an independent mediator and arbitrator since 1987. He mediates and arbitrates a range of commercial and contractual disputes and was appointed by President Clinton in 1999 to serve on the Federal Service Impasses Panel.

Wofford suggests lawyers “start making the transition gradually. Begin, of course, by taking a 30-plus hour training in general mediation required to invoke the state confidentiality statute, G.L.c. 233, §23C, which protects the mediator from testifying or supplying documents. For transactional lawyers, your deal-making experience is useful to effective commercial mediation, so a shift in role is not difficult as long as you understand the challenges of remaining impartial.”

For litigators, Wofford says, “the negotiation you have done to settle most of your cases is probably more useful preparation for being a mediator than your case preparation or trial experience. And for all lawyers, our training in issues of relevance, precedent, clarity, persuasiveness, problem-solving and rational argument are skills I use all the time as a mediator.”

Jane Juliano has been a commercial and workplace mediator and arbitrator since 1993. She is an adjunct professor of mediation and negotiation at Georgetown Law School and has been a visiting clinical mediator at Harvard Law School.

According to Juliano, the best ways to develop mediation expertise include practicing in the presence of others who can critique you, attending professional trainings and conferences where you can learn skills and share experiences, and teaching others.

“Don’t let established systems discourage you,” Juliano says. “Volunteer to help in a mediation office one day a week. Look up small claims court programs that need volunteer mediators. Offer to co-mediate with a mediator you admire, particularly when your expertise would complement his or hers. Volunteer to assist with a mediation course.”

John Fieldsteel of Urbelis & Fieldsteel has been an arbitrator, mediator, case evaluator and special master with a concentration in design and construction since the mid-’80s. He was trying a lot of construction cases when he was asked by the American Arbitration Association to be an arbitrator.

Fieldsteel’s advice to those interested in entering the field is to “select an area where you have wide experience.

When I first started, ADR was only 10 percent of my business. It was at that time that I made an effort to reduce my design and construction law practice while building an ADR practice.”

After 15 years, 90 percent of Fieldsteel’s work was dedicated to ADR, which meant it no longer made sense for him to practice law, he says.

“If you are able to concentrate your law practice on other areas from where you are building your ADR practice, you will be able to avoid conflicts while making up for lost legal work with increased ADR work,” he adds.

Jump and the net will appear?

Setting realistic expectations is important when building a practice and acquiring experience and skills.
Mediation is not a field where you can expect that “if you build it, they will come.” There are many factors that go into both getting the case to the table and being selected as a mediator.

Is the case appropriate for mediation? Will the client consider entering into a process that will certainly require an investment of time and money and may not result in a settlement? Even if the client agrees to consider mediation, will the other side? Which mediation firm or mediator will be recommended? Who will opposing counsel want to use?

The neutral who eventually sits in the mediator’s seat will have cleared multiple hurdles, including making the short list of recommended mediators, based on his effectiveness, strategic marketing skills and a little luck.

Jim McGuire of JAMS has served as a mediator, arbitrator, special master and neutral evaluator since 1989.
McGuire advises attorneys looking to transition into mediation to “write a short essay to yourself and answer why you want to be a mediator and why anyone would hire you.”

If the essay isn’t compelling to you, it won’t be compelling to your prospective clients, nor will it provide the fuel and passion to stick with your plan during difficult times, he says.

“The fastest way to grow your mediation experience is to volunteer,” McGuire says. “In most jurisdictions, court-connected mediation programs depend on volunteer mediators for small claims and lower-level trial court cases.”

Lastly, McGuire recommends that a lawyer join the ADR practice group at his own firm, or create a group if one doesn’t already exist.

“An ADR practitioner should become the firm’s resource center for ADR. Internal educational programs are a very effective way to sharpen skills and make the firm aware of your skills as a mediator and ADR specialist,” he says.

Supply and demand

Is the field saturated with mediators? Yes. But this is not for a lack of disputes in the marketplace. The number of disputes that would benefit from mediation is far greater than the number of mediators who offer their services.

Our challenge is to raise the prospect of mediation early and often so as to create tailored and durable solutions for clients while growing the mediation profession.

What role can mediation play in your professional practice? What is inevitable is that your clients will need skilled and knowledgeable representation at the mediation table. Your clients and your colleagues will also rely on your recommendation of competent mediators who specialize in your practice area.

You also may be asked to serve as a mediator in the near future. I don’t think you could receive a higher compliment.

Chuck Doran, a mediator and trainer, is the executive director of MWI, a dispute resolution service and training firm in Boston he founded in 1994. He can be contacted at [email protected].