Please enjoy the following submission as the second installment of the 2009 Guest Blogger series.
Today's guest blogger is Alex Yaroslavsky. Alex is the all-rounder ADR professional as he is the founder of the Yaro Group, teachers at CUNY John Jay, mediates with CCRB and is a member of FINRA and NYCLA.
Not enough? Read more about him and the other '09 All-Star Guest Bloggers [here].
Yesterday I received a call from a woman who had been enthusiastically pursuing a career in mediation, until words from one of her friends filled her with trepidation. In short, the friend warned:
“There are non-lawyer mediators who have "successful" practices but the ones I know of are social workers or therapists and the mediation is generally an offshoot of their practices. The problem with many is that they don't have the financial or tax expertise so there are significant gaps in their work product.. ... I do remember one story from years ago which had a dry cleaner moonlighting as a marriage counselor/mediator after hrs. No doubt it was spread by disgruntled and unemployed lawyers and therapists but was repeated in all the bars and nightspots to demonstrate the lack of regulations in the field.”
In actuality, one does not have to be an attorney to be a mediator. However, it is important to develop a specific mediation niche or expertise when starting a mediation practice.
To use a medical analogy, becoming a doctor is not enough when developing a practice. A successful practitioner will often develop expertise in a specific area - both for the purpose of developing a deeper knowledge, as well as to be able to attract patients who are looking for someone who deals with their ailment.
As the mediation field matures, specialization will become more common among mediators. And, of course, it makes sense to specialize in an area with which one is already familiar. So, a social worker might become a family-centered mediator, while a contract attorney might focus on contract disputes within their mediation practice, etc.
Two key questions for anyone starting a new practice is "How do I attract new clients?" and "How do I mediate disputes successfully?" The answer to the first question is "marketing." A contract attorney who decides to branch out into mediation will most likely have an easier time attracting mediation clients because s/he is already known to people who have contract-related disputes. However, a constitutional attorney may have a challenge in attracting commercial mediation clients, despite having a stellar reputation in her/his field.
As a non-attorney entering the mediation field one should consider their most likely client base, as well as how her/his previous experience might be highlighted as relevant to mediation. For example, a nurse with geriatric care experience might want to pursue an elder-care mediation practice as opposed to a divorce mediation practice.
The second question rests on one's reputation, which is largely based on performance. This is where the comment about knowledge of financial or tax matters might be relevant to a specific type of practice. For example, while it is not necessary to be a Trust & Estate (T&E) attorney to mediate a dispute involving family members who are fighting over an inheritance, it is very helpful for the mediator to be familiar with T&E concepts (e.g. GST: Generation-Skipping Tax), as well as the legal implications of various ideas that might come up in the course of a mediation.
This is somewhat of a double-edged sword because a good mediator has to strike the right balance of knowing enough to understand the relevant concepts, but not to force her/his opinions on the parties (some would even say that a mediator should not offer any opinions at all, regardless of her/his expertise).
Most parties will not appreciate this distinction, which presents an opportunity for the mediator to educate potential clients about what questions to ask a mediator. Some may choose a field expert, others a [mediation] process expert. As long as the mediator properly sets the clients' expectations, parties may not mind bringing the mediator up to speed on the details of their case.
The mediation field has not yet caught up to other professions in the area of certification, peer review or public awareness. This lack of industry-wide standards allows anyone to call themselves a mediator without having to prove their qualifications. And as this issue is being addressed by the field, the "unqualified mediator" issue can be put to rest.
Mediators should be evaluated on the basis of their training, depth of experience, and effectiveness during a session. A profession or vocation are not good proxies for determining if a mediator is good. A recent article in the New Your Times makes this point.
Two of the best ways to develop your mediation skill set are to find a mentor who will help you develop your skills and find a grass-roots organization that needs volunteer mediators. Mediating community cases will enable new mediators to develop their own style, hone their skills and help establish their reputation.In summary, to become a successful mediator, follow these steps:
Invest in reputable mediation training
Volunteer in a community dispute resolution center
Determine your mediation niche and develop an appropriate marketing plan
Draw on your current expertise and professional network to begin your practice
Leave your clients feeling well-served by your work
As with any business, it will take several years to develop a solid practice, but if you enjoy the work, the field offers a great deal of promise and opportunity.
Jeff Thompson, Ph.D., is a professor at Lipscomb University, researcher, mediator, and trainer. He is also involved in crisis and hostage negotiation as well as a law enforcement detective. His research includes law enforcement crisis and hostage negotiation in terrorist incidents. He received his doctorate from Griffith University Law School having researched the impact nonverbal communication has in conflict situations with respect to developing rapport, building trust, and displaying professionalism.
Dr. Thompson has presented and trained on the topic of conflict, mediation, (crisis and hostage) negotiation, communication and nonverbal communication internationally for a variety of audiences including police personnel, government officials, judges, attorneys, physicians, sales people, business professionals, and both graduate and undergraduate students. He has also been published in numerous professional and academic publications.
He is the co-chair of ACR's national Crisis Negotiation Section, and he is an ad-hoc reviewer for multiple academic journals. He received his MS in Negotiation and Dispute Resolution from the Werner Institute, Creighton University School of Law.
(All posts by Jeff Thompson represent his personal reflections and opinions and not that of any organization.)