Changing of the Tides


by William Keller

October 2012

William  Keller Change is defined in Webster’s dictionary as “to alter; to make radically different.” This six letter word strikes fear in most people. Change is something that takes everyone out of their comfort zone. Changing careers, changing your address or changes in your family situation are encounters that most all of us have gone through at some point in our lives. This moment shook us up inside, sometimes it was a positive change and sometimes it was a negative change. Either way, it altered how we lived our life from that point on.

Currently, the legal landscape is right on the cusp of a change. Unfortunately, the economy is plummeting and a large majority of people can no longer afford to have an attorney go to court (or a mediation session) with them and attempt to settle their case. So what option is left? Pro Se individuals. More and more every day, I am seeing clients come in without legal representation. This made me think, with the economy being tough for almost everybody right now, why not tailor my practice towards pro se clients. Scary idea, isn’t it? This concept continued to take me back to one major word. Change. This new approach will certainly take me out of my comfort zone and it definitely is a drastic change. But is it really all that daunting of an idea?

Let’s take a look at the facts. Subway introduced the $5 dollar foot long, and that bold concept has bolstered their company into the number one franchise in the United States of America. McDonald’s is constantly adding new food items to their dollar menu, and yet they are one of the most successful businesses in the entire world. The geniuses behind these marketing strategies saw that the economy was struggling and they did something to get customers through their doors. Can I adopt their current economy strategy and create a successful practice?

Tailoring a mediation practice towards pro se parties has some serious upsides: mainly, nobody would be priced out. Having an opportunity to resolve your legal dispute at a fair and reasonable price is something most people believe to be non-existent. Not only would the price alone bring people through the doors, but word of mouth would be the best advertising. Let’s face it, people in the same economic bracket are friends with each other and they will discuss how they had a legal issue resolved without the hassle of going through the court proceedings. Lastly, each party would be on an equal, level playing field. As much as we, the mediators, try to even things out, having legal counsel on one side and a pro se party on the other more often than not leads to trouble. Even using tactics such as individually caucusing the whole mediation still causes an unbalance of power favoring the represented party. Making the mediation a fair hearing is something that can be very easily accomplished by tailoring towards pro se parties.

And now for the reality check. With every great idea, that has potential for huge gain, comes great risk. I can’t begin to tell you how many pro se “clients” have called me and scheduled a mediation and then did not show up. Another huge drawback for pro se individuals is their lack of legal knowledge. As a mediator, it is very difficult to sit back and watch an individual believe that they know a particular loop-hole in the law or how a judge would rule on their case. Also, there are some issues e.g. alimony, child support… that the mediator is not allowed to figure out, since that would constitute giving legal advice.

Given the advantages and disadvantages of mediating between pro se individuals, I believe this is a new angle that is definitely worth exploring. When a pitcher is struggling in a baseball game, the manager makes a pitching change to bring a different perspective to the hitter. The same applies to a mediation practice. When a firm is struggling to bring new clients in, a change in perspective needs to be made. I firmly believe that creating a pro se mediation practice in a largely populated area (e.g. Tampa, Atlanta, New York City, Chicago, Los Angeles) would be a struggle at first, but in the end it will help educate people on mediation and also help individuals who feel they are unable to resolve their legal issues without mortgaging their future, get the help that they so desperately need and deserve.

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