A 12 Step Approach to Enhancing Your Alternate Dispute Resolution Practice

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Thinking of ways to enhance your ADR practice? Join the club. The 40-hour divorce mediation training classes are packed to capacity. At ADR Day in New Jersey, it was standing room only for the workshop entitled “Making a Living in Mediation”. During a recent presentation I gave to the Hudson County Bar, at least 50% of the attendees indicated they were thinking about expanding their law practices to include mediation services.

It is easy to establish an ADR practice. In most states including New Jersey, there are no licensing requirements. However, as most ADR practitioners who hang out their shingle find out, “build it, and they will come,” does not usually apply to ADR. It takes planning, hard work, stubbornness, and more than an ounce of good luck to develop a successful practice.

I learn something new every day from practitioners in the field and from my clients. I have taken their collective wisdom and tried to document these ideas. So, with thanks to all those who have assisted me, I share with you A 12 Step Approach to Enhancing Your ADR Practice.

STEP 1: DON’T QUIT YOUR DAY JOB without understanding the cost!

I was a management consultant with Price Waterhouse, and a Vice President with JP Morgan. I left JP Morgan with a nice package at the end of 1996 to establish my mediation practice.

• In my first year of practice with startup costs, my volunteering efforts that provided experience but no income, and my fixed office expenses, I lost money, as I had planned.
• In my second year of practice, I broke even, but didn’t pay myself a penny.
• In my third year of practice, I did show a modest profit.
• In my fourth year of practice, the practice began to generate sufficient income to justify staying in business.
• In this, my fifth year of practice, I believe my practice is finally, fully operational; I thought I would be fully operational by year three, and was lucky to have the financial resources to stay in the game.

Almost all ADR practitioners were working for themselves before entering the field of mediation; they added ADR services to their existing practice – typically, accounting, family and marriage counseling, financial planning or law. In a prior survey, I found that ADR typically accounted for 40% of their practices. Your primary area of specialty may enhance your reputation in ADR, and your association with ADR may enhance your primary area of practice. Even if it is financially feasible, it may not make sense to quit your day job.

STEP 2: PREPARE A BUSINESS PLAN and track your progress relative to the plan.

When I started my practice; I enrolled in a program with the Small Business Administration that helped me develop a plan, and also assigned a retired executive to mentor me. You will have to invest money in marketing expenses, and may also forgo income from your day job as you work to build your ADR practice. A business plan is a necessity.

Essential components of a business plan include:

• Identification of facilities, furniture and equipment that you feel are necessary to offer ADR services; I feel much more comfortable mediating at a round table where everyone is an equal. I also need my white board to summarize for clients the day’s agenda, at the beginning of each meeting. For me, these are minimum requirements.
• An advertising budget that may include Yellow Page advertising, web site development and web site links, print advertising, and use of a public relations firm.
• A budget and plan for memberships to professional organizations, as well as civic/networking organization such as the Rotary Club.
• Revenue and expense projections for your ADR practice; don’t forget to put a value on the hours you invest in building your business.

Track your progress relative to the plan. Learning experiences are necessary, but losses should be managed. I learned the hard way that print advertising was not very effective for me. After my first year in practice, I dropped almost all my print advertising. I also learned that web site links increased the number of hits to may web site, and devoted more of my budget to this area in my second year.

STEP 3: FOCUS ON BUILDING A BETTER MOUSETRAP not on reinventing the wheel.

I am still using the standard forms such as the Client Information Form, Issues to be Decided, and Budget forms from my divorce mediation training class. However, if something can be done better, I try and make that improvement; many of these are relatively minor.

How do I identify ways of building a better mousetrap?

• Having gotten divorced through mediation, I have first hand experience on what worked and what could have been done better. As an example, I provide two copies of the Memorandum of Understanding to each of my divorce clients so that they don’t have to go to the trouble of making extra copies to forward to their attorneys.
• I examine what I like from other organizations that provide good customer service such as American Express. As an example, if I quote a client a fee, I try and hold to that fee, even if my billing rates have increased.
• After each case is completed, I send a survey asking for feedback. About 30% of clients return the survey. As an example, one of my clients had indicated they hated searching for parking in urban Hoboken. I now provide free parking at the municipal parking lots at a nominal cost to my practice. The survey also allows me to identify whether there are any loose ends on a case.

STEP 4: DEVELOP YOUR UNIQUE SELLING PROPOSITION to describe what makes you and your ADR practice unique.

Write one paragraph on what makes you and your practice unique. Why? You need to summarize for yourself why people should use your services. You can use components of it in your brochures, letters to potential clients, phone inquiries and so on. You don’t need to include every accolade. Need an example of a USP? Here’s mine: “Divorce with Dignity offers a fair, sensitive and cost-effective approach to family, business and civil, alternate dispute resolution. Anju D. Jessani has an MBA from the Wharton School, and spent nearly 20 year in financial services. She is an Accredited Professional Mediator by the New Jersey Association of Professional Mediators, and is a Practitioner Member of the Academy of Family Mediators, reflecting the highest level of training and experience. She is on mediation and arbitration referral lists including the New Jersey Administrative Office of the Courts, and the National Association of Securities Dealers.”

In my first year in practice, I tried not to mention the MBA. I felt I should be emphasizing my ADR training and experience. This was a mistake. Clients and peers want this information; it is part of what makes you unique. With so many referrals coming from practitioners with primary expertise in another field, the challenge is to present your credentials without disparaging the other professions.

STEP 5: TAKE ADVANTAGE OF TRAINING and credentialing opportunities.

I mentioned that there are few barriers to entry for ADR, and that most states including New Jersey, have no ADR licensing requirements. Nevertheless clients are getting savvy. They are asking for information regarding background and training, and are noticing difference between practitioners. However, the reason to focus on training is because the knowledge provided should allow you to service client better, in turn, resulting in more satisfied clients and more referrals.

In tandem with the issue of training is the issue of credentialing. Credentialing provides a way for clients to differentiate the dilettante from the professional who has made a commitment to ADR. The requirements for the New Jersey Association of Professional Mediators are similar to those of many other states.

NJAPM mediators holding Practitioner Member status with the Academy of Family Mediators are deemed to be qualified as Accredited Professional Mediators, upon completion of at least 16 hours of training in New Jersey family and divorce law. Otherwise, the requirements for APM status are as follows:

• An advanced degree in mental health, business, or finance, an accounting license, or a Juris Doctor of equivalent law degree. The educational requirement may be waived, if appropriate.
• A minimum of four years of professional practice in a discipline in which the educational requirement was satisfied.
• For mediators seeking family and divorce accreditation, completion of an approved Divorce and Family Mediation training course (minimum 40 hours or 18 hours in addition to an approved 40-hour training in another mediation field); training must include at least two hours of training on identification of domestic violence issues.
• For mediators seeking business/commercial accreditation, completion of an approved business and commercial Mediation training course (minimum 18 hours).
• Completion of at least 15 cases and 100 hours mediation, with at least 80% of the cases having been mediated face-to-face with the parties.
• Up to 48 hours of participation in an approved practicum or internship or in co-mediation with an accredited divorce/family mediator may be counted towards the required hours for mediation experience.

Most credentialing programs have continuing education requirements, further assuring that clients will be serviced by practitioners who are current on issues that could impact their cases; another good reason why clients should be looking at credentials when evaluating practitioners.

STEP 6: JOIN ADR ORGANIZATIONS and network with fellow ADR practitioners.

I mentioned that I learned the hard way that print advertising didn’t work for me. In networking with other ADR professionals, I found that this was a fairly common, although not universal, consensus. If I hadn’t networked, I may have invested in a second-year of expensive print advertising trying different copy and different publications.

ADR organizations also provide great marketing opportunities. 20% of my clients come from other ADR practitioners who can’t take the case because of conflicts of interest and/or geography issues. I also have to refer at least 50% the inquiries I receive, either because they are not appropriate for mediation, or because of conflict of interest and/or geography issues; I give referrals to people I know and have also have a comfort level.

Active participation in an ADR organization will allow you to build a useful Rolodex of referral sources. I frequently have to refer clients to appraisers, financial planners, insurance experts, therapists, and college-aid counselors. Almost all my contacts have also come through networking. Additionally, for each dollar I generate in revenue, the lawyers who do the legal work after me generally make two dollars. While, my clients are free to use any attorney or specialist they choose, most prefer to use a referral. Most ADR practitioners maintain similar lists.

I belong to my state mediation association, the New Jersey Association of Professional Mediators. Please visit their web site www.njapm.org; or phone them at 800-981-4800, for more information. NJAPM benefits include statewide marketing efforts, networking opportunities, legislative updates, educational seminars, and a mediation referral program for accredited mediators. Most states have similar organizations.

I also belong to a national organization, the Association for Conflict Resolution. ACR is the merged organization of the Academy of Family Mediators, the Society for Professionals in Dispute Resolution, and the Conflict Resolution Education Network. They maintain a referral program for Practitioner Members of the AFM, and also offer access to various liability insurance programs. The ACR web site located at www.acresolution.org, includes a list of state mediation organizations; you can also call their office in Washington DC at 202-667-9700, for more information.

Anytime you go to a conference, read the resumes of the speakers to see which ADR organizations they have joined. Do a search on the web and see which organizations prominent ADR practitioners hold membership.

STEP 7: GET ON APPLICABLE REFERRAL LISTS for your area of specialty.

I call this getting your name on the map. In terms of psychic energy, this is easier to do when you are starting a practice. However, even for the seasoned ADR professional, it pays to review which lists you are on annually, and to compare your lists with your competitors.

Some lists such as the NJAPM and ACR/AFM, have their own credentialing prerequisites, while others have an application process. On the Internet, there are lists open to all interested parties for a nominal fee. The only free and open list I am aware of on the Internet is at www.split-up.com, a referral list for family and divorce mediators.

I am on the following lists that have an application process, but no fee requirements:

• National Association of Securities Dealers, Mediation and Arbitration programs.
• New York Stock Exchange, Mediation and Arbitration programs.
• New Jersey Administrative Office of the Courts, Family Economic Mediation Pilot Program
• New Jersey Administrative Office of the Courts, Civil/Commercial Mediation Pilot Program.

I pay an annual fee from $100 to $250 to be included at various Internet web sites. If you are curious to see where I am listed, do a search on my name. While it is almost impossible to tell which Internet sites are leading clients to me, in addition to www.divorcesource.com, the host of my web site, I believe the following sites have been most effective:

• www.divorcenet.com – a state-by state resource on divorce.
• www.adr.martindale.com – Martindale-Hubbell’s online directory of ADR practitioners.
• www.mediate.com – the web site for the Mediation Information Resource Center.

STEP 8: SEEK WRITING AND SPEAKING ENGAGEMENTS and set practice goals accordingly. Advertising is expensive and usually has a brief shelf life. In addition, it is often hard to assess whether your advertising has been effective. I am not suggesting that you don’t advertise. Rather, that you invest some time in promoting yourself through writing and speaking engagements. They work!

I set a goal of writing two articles every year. My white papers are among my best marketing tools. Clients are hungry for relevant articles about ADR, and these articles also establish my credibility as an ADR service provider. You don’t need a publisher anymore. You can implement a web site at almost no cost, and post articles at your site. Most of the articles I have written for print publications have been by invitation from an editor who had read one of my summary articles posted at my web site.

When I first started my practice, my goal was participating in one speaking engagement a month. I gave presentations to support groups, library groups, chambers of commerce, attorneys – basically anyone who would listen. My current goal is at least two speaking engagements a year. I now aim for forums where I can expand my referral network rather than targeting clients directly.

STEP 9: GET AN E-MAIL ADDRESS AND A WEB SITE; these are essential to doing business in the 21st century.

In his new book Business @ the Speed of Thought, Bill Gates states that business will change more in the next ten years than it has in the last fifty. Businesses that seize the opportunity and use digital tools to move information inside their enterprise, as well as to reach out to customers in new ways, will lead in this era. “Any activity you’re going to engage in, whether it’s buying or simply planning something, you’ll be able to take advantage of the Web and you’ll even take it for granted.”

I would imagine that I am probably preaching to the converted when I sing the praises of e-mail. However, if there is even one reader who has avoided getting connected, I encourage that person to try using e-mail. With e-mail, I can instantaneously send a Memorandum of Understanding to both clients, and they can e-mail be back their changes, all at no cost. There are not missed phone calls, no messy faxes, and no express mail charges. Of course there is a caveat – e-mail can also be very dangerous. As an example, it’s easy to hit the “reply to all” button when you just intend to reply to the sender.

In speaking with ADR practitioners, every person who has a web site has stated to me that they are pleasantly surprised that is does reach potential clients, and that these clients are much more suitable ADR candidates that those that come through the Yellow Pages. Even if your ADR practice is overbooked, the web can still be useful for reducing your marketing, printing and mailing costs. You reduce the need for mailing out brochures by referring potential clients to your web site when they ask for information about your approach to ADR.

STEP 10: PLAN FOR CHANGE; nothing stays the same.

I see two different forces impacting ADR – one is the increasing acceptability of ADR, and the second is the impact of technology. There are futurists who specialize in predicting change; my views are strictly as an amateur. Here are five ways I believe ADR will change in the near future:

1. No matter what happens to the legality of multi-disciplinary practice (MDPs), there will be greater collaboration between various professionals. If servicing the client well is the primary objective, then bringing the best available resource to the table is in the best interests of the client. ADR professionals are becoming more comfortable and appreciative of each other’s talents.
2. There will be a more standardized approach to servicing clients and pricing services. Service approach and pricing will be based less on the person’s primary area of specialty, and more on a standard approach for ADR services, no matter what the practitioners background.
3. While there will be greater demand for services, there will also be more ADR practitioners, and the field will get more competitive. Clients will be shopping around more for services.
4. As evidenced by the success of SquareTrade, a company that provides online dispute resolution for web auctioneer eBay, there will be greater acceptance and use of online dispute resolution, especially for low dollar disputes. If you are interested in more information online dispute resolution, read Online Dispute Resolution – Resolving Conflicts in Cyberspace by Ethan Katch and Judith Rifkin, published by Wiley Company.
5. ADR will become the standard tool for resolving disputes such as divorce, rather than the exception. It will become the default so to speak. If people cannot resolve their issues in ADR, they will then utilize the legal system.

STEP 11: STAY OUT OF TROUBLE by observing generally accepted guidelines for the practice ADR.

Most ADR organizations have a code of ethics for members. With respect to mediation, a group of commissioners of the National Conference of Commissioners on Uniform State Laws (NCCUSL) has been drafting a Uniform Mediation Act (UMA) in collaboration with the American Bar Association’s Section on Dispute Resolution, which incorporates many of the principles these organizations, and will apply to most areas of mediation, if enacted. It is important that ADR practitioners make themselves aware of acceptable practice guidelines for their state and ADR organizations, and practice within these parameters to protect their professional reputations.

The UMA draft is available on the web at www.pon.harvard.edu/guests/umaDRAFT. Some of the highlights of the draft act include:

• Decision-making authority in the mediation process rests with the parties.
• Before accepting an assignment, the mediator should disclose whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a party or foreseeable participant in the mediation.
• There is no privilege for communication sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child.
• An attorney or other individual designated by a party may accompany the party to and participate in mediation. A waiver of participation given before the mediation may be rescinded.
• A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, but a mediator may disclose whether the mediation occurred or has terminated, whether a settlement was reached, and attendance.

STEP 12: BE GRACIOUS.

I am always in awe when genuine graciousness is shown to me. Everyone is busy; we have good intentions but get sidetracked along the way. I believe the trick is to put these activities at the top of your day’s “to do” list. In meditation, my best clients continue to come through referrals. It just makes good business sense to be gracious.

• Take the time to thank the people who refer to you. Develop a routine, whether is be dropping a note, sending e-mail, or picking up the phone. Always ask potential clients who referred them to you.
• If you receive a call outside your area of specialty, refer them to someone who does perform that type of service. You will be doing them a favor as well as the service provider.
• When you see an article that you know will help a colleague, send them a copy with and handwritten note with a copy of the article.

Cesare Pavese stated, “Lessons are not given, they are taken.” Not everything that has worked for me will work for you, and some things that didn’t work for me, might very well work for you. However, I hope that they’re at least a handful of helpful tips you can take and implement from this article. And, I hope that they do help enhance your practice. Have any secrets to your success you would like to share? I welcome your ideas and your feedback.