First, let me confess a bias, which after all is nothing more than a leaning in a particular direction. When I first started in mediation, I listened to everyone who had anything to say about the subject. It wasn’t long before I learned enough to be able to sort the wheat from the chaff. Time is fleeting and one doesn’t want to spend too much of it chewing on the indigestible. So when I came across a person who talked sense first time, next time and all the time, I developed a leaning in his favor. Jeff Krivis talks sense – one reason is that he has mediated several thousand major cases. Another is that he is self-reflective; he thinks about what he is doing. A third is that he has never been afraid to be innovative. I learned this in informal seminar situations, but I learned it in aces and spades when, as a lawyer, I retained Krivis as mediator. That was a mediation to remember, particularly because it was preceded by no fewer than five unsuccessful mediations with other mediators, four of them retired judges. During the course of a 10-hour day, Krivis cracked the long-standing impasse by a series of creative improvisational moves, increasing the highest value previously placed on the case by 175%. That is why his first book, Improvisational Negotiation, was an instant success and much sought after by mediators. Published by Jossey-Bass (2006), it contains thirty actual accounts of particularly awkward situations arising during real-life mediations, and recounts how they were solved, with intriguing chapters like ‘Working at the Car Wash,’ ‘Death Takes a Holiday,’ and ‘Dropping the Bombshell.’
Now, after a career in dispute resolution that has taken him to the top of his field and kept him there for more than ten years, Krivis has leapt into print for the second time this year, with ‘How to Make Money as a Mediator,’ (Jossey-Bass, 2006), co-authored with Naomi Lucks. He should know a bit about earning fees and I know a bit about paying them, for not only was I partly responsible for paying Jeff’s fees, but also we were fortunate to get an appointment at all inside three months.
So, how does one make money as a mediator? To answer this question, Krivis has turned to consider the habits of 30 highly successful people, comprising a Who’s Who of top mediators from Canada to New Zealand and across the United States, all of whom are liberally quoted in the book. Each of these people found a different path to mediation and different approaches to what success requires, yet there are also striking similarities. All the top mediators view mediation as a calling. While all love the practice of mediation, none are particularly drawn to the business of marketing, yet all realize its essential importance. Jeff Kichaven does 150 mediations a years yet finds that marketing time ‘far outstrips’ mediating time: ‘You have to do it. Swim or die. Get used to it.’ None achieved success immediately; most required several years of hard work to build a practice – ‘It takes a three-to-five year plan to make this work,’ says Susan Hammer. ‘You need endurance,’ advises Nina Meierding.
Everyone emphasizes the intensely personal nature of the business, making marketing far more a matter of making and maintaining personal contacts than print advertising. Michelle Obradovic finds it a ‘waste to time’ to do generic mass-market advertising. ‘Target your specialty’ insists Cliff Hendler. Yet all agree on the value, indeed the necessity, of a Web site – ‘They expect you to have a Web site’ says Ralph Williams. ‘Our Web site has been very good for us,’ adds Rick Russell.
The book outlines different fee structures and methods of billing, as well as different methods of using support staff. Most highly paid mediators expect payment upfront; ‘You get the people committed,’ says Robert Creo, ‘and you don’t spend time billing people or collecting money.’ The issue of staffing is also addressed. Because ‘face time’ is so critical, and because that includes both marketing and the mediation session, top mediators need a support staff. Only a few seem to use full-time staff; most seem to prefer ‘unbundled services,’ that is to say, they rent space in a full-service suite which takes care of reception, additional conference rooms, mail sorting, and telephone answering. Then they use outside billing services for their bookkeeping. They organize themselves to outsource as much administration as possible. Some mediators use outside marketing services, placing advertisements in strategic magazines, but also rely heavily on obtaining speaking engagements to different groups. The clientele of top mediators is primarily, though by no means exclusively, the legal community, because, as bank robber Willie Sutton said with timeless simplicity: ‘That’s where the money is.’ However, the doyen of mediation marketing, Natalie Armstrong, finds a continuing trend towards ‘proactive mediation’ by industries such as ‘hospitals, hospitality, construction, film studios,’ even ‘linen supply companies.’
Krivis divides his book into eight accessible chapters, including ‘Invisible Marketing,’ ‘How Much Money Can You Earn,’ and ‘Weathering the Ups and Downs of a Mediation Practice.’ The final chapter is particularly interesting. It’s called ‘Looking Ahead: The Future of Mediation and Your Future in Mediation.’ Krivis quotes Jeff Abrams “I see a bright future for everyone,’ yet notes some not-so-hopeful trends that the profession will have to deal with, including a trend towards institutionalization, the ‘stale’ mediator, ‘instant mediators’ which goes to the lack of, and resistance to, any kind of accreditation, and rising business costs. There are also many hopeful trends, including the undeniable fact, as veteran Chris Moore notes: ‘…mediation has grown dramatically over the last fifteen years.’ Krivis also approves of the increase in mentoring, almost a revival of the old apprenticeship system, or as it is still called at the English bar, ‘pupillage.’ And he sees an increase in mediator partnering across borders, that might prove a boon to mediators with language skills, and increasing use of mediation in the public policy and non-profit sectors, and a slow trend to view mediation not as the ‘alternative,’ but as the first choice in dispute resolution.
While sprinkling the book with the views of numerous of his colleagues, the book in all its essentials belongs to Krivis himself. From his very personal introductory chapter, ‘How I Found my Dharma in Mediation,’ to the invaluable final chapter ‘The Mediator’s Field Guide to a Successful Practice,’ the book is a detailed account of a busy, thoughtful mediator who has watched the profession grow up around him. This little review cannot hope to do justice to a 220-page book that is crammed with practical tips and the accumulated experience of so many successful mediators. It flows well and is an easy read.
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