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<xTITLE>Can Mediation Be Your Day Job?</xTITLE>

Can Mediation Be Your Day Job?

by Forrest (Woody) Mosten

Chapter 1 published with permission of Jossey-Bass

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����������� I have always been a dreamer.

����������� One of my boyhood dreams was that I could one day support myself and my family with a job that could help people and that might stimulate me every day.

����������� Some dreams come true.

For over 20 years I have gotten up in the morning unable to wait to get to the office. Every aspect of my work is consistent with my core life values and the strengths of my personality. The work is intellectually challenging requiring conceptual and strategic thinking.I help people---and what I do makes a difference-- to the people that I touch --and to many that I will never see.

����������� I am a professional mediator--and hope to continue working at my craft until either conflict becomes obsolete or I can function no longer. This bullish view seems to be shared by others who have already chosen to build careers as mediators. You can visit any conference of mediators, mediation website, or local mediation firm or group and you will be impressed by the mediators as people and by their positive outlook toward themselves as professionals and their lives outside of the office.The spring in the step of mediators is in contrast to the burn-out and stress lawyers have with the legal system (and often with their adversarial colleagues), the frustration mental health professionals feel toward the intrusive stranglehold of managed care, the depression of teachersin the public school system, and the unhappiness and lack of control that pervades so many in corporate life.

����������� One of the joys of my own professional life as a trainer of other mediators is to witness the infusion of optimism and energy in graduates of mediation training courses. Instead of being asked to sell products that do not work or could actually be harmful, training graduates are thrilled at the prospect of delivering peace and conflict resolution to their future customers. They reach back to their basic values and motivations and realize that they can spend their days actually helping people and doing good for society. They can increase control over their work day and feel hopeful about making their mark in a growing profession still with plenty of room for innovation and new players.

THE CHALLENGES OF A CAREER IN MEDIATION

����������� There certainly are challenges to becoming a mediator.At nearly the same warp speed that �born again mediators� embrace the peacemaking profession, many abandon it and return to dreary day jobs that pay the bills. Since mediation is not yet a known or accepted way of handling conflict, teaching the public about collaborative problem solving is much like teaching people to eat soup with a spoon. It makes sense, but seems strange at first. Many beginning mediators get frustrated at the time, expense, and hard work that it takes to make a living in a new profession.

This frustration translates to many mediators jumping in to�then crawling out of--the profession. It is remarkable to see the number of new faces at the Southern California Mediation Association�s Annual Conference each November. This influx of fresh blood is heartening. But where did all the familiar faces go?

The world�s largest stand- alone mediator organization, Association for Conflict Resolution (ACR)] reflects this issue by printing two contrasting perspectives on the cover of its Winter/Spring 2000 Newsletter (actually, it was the newsletter of Society of Professionals in Dispute Resolution, SPIDR, one of the former organizations merged into ACR)..The first article was written by me and entitled, �Peacemaking Can Be Your Day Job.� The other article, by respected mediator David Plimpton of South Portland, Maine, was �Ethical Duties of Mediation Trainers in the Promotion of Training Programs.� David argued that after luring training participants into expensive programs by feeding on the glow of a lucrative future as a professional mediator, the reality is that after the training (perhaps many trainings) there are few jobs and realistic practice building opportunities. Mediators are dressed up with no where to go. Supporting his concern, David quoted noted mediation authority Kathy Birt�s 1994 article, �Is It Ethical to Offer Graduate Degrees in Mediation When There Are So Few Jobs in Dispute Resolution�

�Although overall interest in the ADR field is growing exponentially, actual jobs in the field are few. At the same time, the number of people requesting and receiving training in ADR is increasing each year�Some believe the field is becoming glutted and question whether the profession ought to encourage the continued training of yet more mediators��Plimpton notes that the situation hadn�t changed since Birt�s article was published.

����������� M. Scott Peck begins his transformational book, The Road Less Traveled, with the words, �Life is difficult.� The journey to a day job in mediation is no exception. It took me from 1979 when I started practicing mediation until 1986 before the income from my mediation work exceeded my expenses on an annual basis. During those seven years, I invested major capital and time (lost opportunity costs). Fifteen years later, in 1994 (the same year as Kathy Birt�s article) I was still investing over $15,000 in out-of-pocket costs and over 1000 hours (25 work weeks) per year to build my mediation practice.

����������� I am not alone.Ask any mediator who has a successful career.You will learn that every one of them has made huge investments of time and money to follow their dreams.Nina Meirding, President of the Academy of Family Mediators, emptied out her teacher�s retirement account to launch her mediation practice in the mid-80�s. Jim Melamed, co- founder of the world�s largest mediation site,www.mediate.com, gave up a beautiful office in a modern office building in Eugene, Oregon, moved into his home office and has spent countless days at exhibitor tables in order to build his peacemaking business.

Perhaps the most poignant story is that of Tom Altobelli of Sydney, Australia. After establishing a successful law practice but feeling unfulfilled, Tom completed a masters degree in conflict resolution at night and on weekends. He attended every mediation conference, volunteered in community programs, coached for free in mediation training programs, and wrote articles for anyone who would publish them. His mediation practice still hadn�t taken off. Tom felt he needed more training to go to the next level. So with his wife and toddler son, Tom left his practice for 6 months and took courses in Los Angeles with me, in Boulder, Colorado at Collaborative Decisions and Resources (CDR), at the Harvard Program on Negotiation in Boston, and at other programs in the US, London, and Hong Kong. Today, Tom practices mediation half time, teaches mediation the other half, and is one of the most satisfied people you will ever meet.

����������� I am not suggesting that you must copy Tom Altobelli in order to make mediation your day job. It may not be necessary for you to give up 6 months income and another $50,000 in out of pocket expenses as Tom did. But if you want to enter this profession, and it is a distinct profession from your current day job, it will require major investment and time commitment. And, as with everything in life, there are no guarantees.�����������

����������� Despite the lack of guarantees, from everything I can see the future of mediation looks so bright that I would lay a large wager on a successful career in mediation. In truth, I have! By investing in my training institute and national network of mediation centers, I have bet large amounts of capital, taken out major loans (secured by my house), and devoted countless hours based on my assessment that society will need more and more trained mediators.

THE RESEARCH YOU CAN DO

����������� In deciding whether to start your journey toward a mediation career, it�s a good idea to do your own field research into the vibrancy of the field and its potential to support future mediators. Don�t rely on any one source. Talk to individuals in the following segments of our population, compile your own data, and make your own decision.

People Who Have Gone Through Litigation

����������� Find people who have been through the court system.Ask them:

- if they were pleased with the result.

-if they were satisfied with the process.

-if they found that the money they spent was worth it.

- did they consider mediation as an alternative while litigating?Why or why not?

Litigation Attorneys

����������� If you do not personally know any litigators, ask some friends or call a few lawyers listed in the yellow pages. Ask them:

- If their clients are satisfied with the results, process, and costs of litigation.

����������� -If they , as litigation professionals, are satisfied with the predictability of outcome, speed of result, and the quality of the finished product?

����������� -If they are satisfied with their financial return on the litigation services they offer? As a sub question, ask them if they get paid fully at their agreed prices for the work they do, even when the results are favorable.

����������� What does the conflict and stress oflitigation do to them? - What are their perceptions of, and experiences with, mediation?

Judges and Court Staff

����������� Take a field trip down to your local courthouse and see if you can chat a bit with some of the sitting judges, court clerks, and bailiffs.Ask them:

- If the citizens who use these taxpayer-supported institutions seem satisfied with the results and how they are treated by court personnel and their lawyers.

-How they believe litigation serves the values, goals, and needs of the court itself.

- What are their perceptions of, and experiences with, mediation?

Corporations and Small Businesses

����������� Make an appointment with an executive or high level manager of a large size corporation and another with at least one small business owner.Ask them:

- If they are satisfied with the litigation process as a way of recovering losses due to conflict and disputes?

- To try to quantify the financial internal and public relations costs to their companies in dealing with conflict and diverting positive and valuable business resources to dwell on past conflicts for months or years in litigation.

- What are their perceptions of, and experiences with, mediation?

Public Agencies and Non-Profits

����������� In completing your field research, go talk to someone who works for a local, state, or government agency, school system, or branch of government. Also, talk to someone who devotes his or her career to helping people through a career in a charity, public interest organization, or other not for profit activity.Ask them:

- How their institutions or their beneficiaries (taxpayers, clients, other agencies) are currently resolving conflicts and disputes---is it working?

-How litigation impacts their basic mission and limited budgetary resources?

- What are their perceptions of, and experiences with, mediation?

����������� In compiling your findings and conclusions from your own field research, compare and contrast them with the results of the Comprehensive Legal Needs Survey completed by the American Bar Association in 1994 and the Report of Self Represented Litigants published by the American Bar Association in 1993:

������� Over two thirds of identified legal needs do not get handled by lawyers do to the perceived high costs;

������� When people use lawyers prior to litigation, satisfaction is very high. When the matter enters the litigation process, satisfaction levels with both the court system and lawyers drop dramatically�regardless of the results

������� In Arizona, over 62% of divorce litigants have no lawyers at all�88% of the cases only have one lawyer

Of those people who choose to self-represent without lawyers, over 50% could afford some legal help�but chose not to pay for it because many see lawyers as deal breakers and conflict escalators.

������� Also consider the following selected findings reported by a 1998 Report to the Massachusetts legislatures demonstrating the high satisfaction, quality results, and cost effectiveness of mediation. You can read a summary of the research at www.to-agree.com/advres.htm or the full report at www.virginia.law.com/matreas/adrcomm.htm.

Parties find it easier to express themselves in mediation

������� Parties appreciate increased privacy

������� Attorneys bill significantly fewer hours when a case is in mediation

������� Attorneys as well as parties express a high level of satisfaction.

������� 72% of attorneys report that mediation is less costly for their clients

������� The range of solutions is far wider in mediation

������� Over 90% of cases referred to mediation result in written agreements

������� Over 80% of the disputants are satisfied with the terms of the mediated agreement

������� Court cost savings of using mediation is over 50%

������� 90% of mediation participants felt that the mediation process was clear, the mediator had good ideas, and that they had been listened to

������� Parties are more likely to abide by the terms of a mediation agreement

������� Mediating cases ends disputes faster

������� Parties save significant attorney fees, expert witness fees, and other costs

������� Overall costs of mediated agreements are 40% less than matters resolved through litigation

������� Plaintiffs are more likely to receive part of the claim in mediated cases than in non-mediated cases

������� Over 50% participants felt they changed the way they handled conflicts from their mediation experience and 70% of family members reported less arguing and fighting for months following the mediation

������� Nearly 60% of participants report that they better understood the other person�s point of view following the mediation

������� 90% of participants felt the mediation process was good. Quicker settlements increase satisfaction levels for both clients and attorneys.

������� 77% of participants expressed extreme satisfaction with the mediation process. A substantial portion of those who failed to reach an agreement in mediation believed mediation was useful and would recommend it to others.

��������������� Your own field study, bolstered by the research findings above, should lead you to the conclusion that the current product for resolving disputes (litigation) is not working and produces low satisfaction by both its users and providers.The public and professionals have a need and demand for a better product.This is the key to any new market change: people do not like what they�re being offered�and want something different � and better.

�����������

THE FUTURE OF MEDIATION

����������� If mediation has proven demand and is increasingly available, what does the future look like?

����������� The internationally acclaimed think tank The Rand Institute published a 1997 report finding that only 7% of civil cases were then using private mediation.Few would doubt that the use of mediation is constantly on the rise.What would happen if 20% of civil cases used private mediation? Using 1997 as a baseline, if only 1of every 5 court filings used private mediation, society would need three times the number of mediators to handle this increase. This 300% increase in consumer demand actually seems low�but let�s live with it for now--especially if you factor in the increased need for mediators for problems and claims that never hit the court system. For example, many use mediation to resolve work place, family, and consumer problems long before litigation is ever contemplated, let alone used. Also, mediation is on the rise in the forming of family and business relationships---premarital financial and blended family mediation and construction industry preventive mediation are just two growing examples. If the trend continues, the 300% use increase of mediation might seem distortively low.

����������� Mediation�s growth in Australia is a positive indicator ofwhat will (hopefully!) happen within the next few years elsewhere in the world.For example, Australia has made significant changes in the language for mediation.In the United States, ADR stands for Alternative Dispute Resolution, including mediation.In Australia, however, litigation and arbitration are the second-line options while PDR, Primary Dispute Resolution, endorses mediation, conciliation, and negotiation as the first option in its system.This change, promulgated by the Australian Family Court, has produced a cultural shift in the use and growth of mediation in that jurisdiction.

����������� Another Australian institutional change has produced a rapid increase of demand. In the Australian state of Victoria, all civil cases in the court system must be referred out for private mediation. The litigants select their own mediator from the private sector at market prices at their own cost.Special provisions are made for those litigants who do not have the financial means to pay.

����������� This change alone has so taxed the supply of qualified mediators in the private sector that there is a societal SOS to train more mediators. This SOS has produced a deluge of interest in mediation training programs to the breaking point. In Melbourne, people who want mediation training often have to pay for a seat in the training room just for the opportunity to observe other future mediators being trained!

����������� If similar court initiatives occur in this and other countries, the price of training will go up to meet demand as will the need and price of mediation services in the marketplace. If I were starting my mediation career now, I would feel confident embarking in a field with this type of promise.

����������������������� �����������

STEPS TO MAKING MEDIATION YOUR DAY JOB

����������� What can you do to increase your own chances of career success? There is no recipe. However, beyond dumb luck and being at the right place at the right time (which you may be given the above discussion), I have found that many successful mediators in the field today have the following:

  • Commitment to Peacemaking

  • Commitment to the Skills and Craft of Mediation

  • Commitment to Making Your Living through Mediation Work

  • Strategic Planning and Implementation of Your Mediation Career

  • Reflection and Continual Re-Evaluation

  • Successful Models and Mentors

Let�s look at each of these elements more closely.

Commitment to Peacemaking

Several years ago, a friend came to me and said he was thinking of shutting down his law practice and buying a tree trimming business. He was excited about the bargain price he could negotiate, the high profile customer list, the profit margin on the books, and the willingness of the current owner, who was retiring, to coordinate the transition with the customers, suppliers, and working crews.

I asked my friend one question: �Do you love tree-trimming?�

My friend stood dead in his tracks and shot back, �What does that have to do with it?It�s a money machine�and certainly better than working the long hours under fluorescent lights for people who aren�t happy with what I do and don�t pay their bills.�

He bought the business�and it cost him his life savings, his credit, his father-in-law�s retirement, and his marriage. It is impossible to say whether the same disaster could have been prevented had he loved tree-trimming---but at least he would have staked his money, time, trust, relationships, and dreams for a goal in which he believed and enjoyed.

The lesson here is simple: don�t jump into a growing but still uncertain field like mediation unless you eat, breathe, and dream about creating peace and resolving conflict � and are willing to risk everything to make it happen. If you are dissatisfied with your present position or even your entire career path, it may be easier for you to make a small correction (another job, slight retraining, or jump to another similarlyestablished field) rather than leap into mediation. Mediation is a distinct profession requiring its� own intense training and practice.

Practice Tips

A career in mediation requires a �can do� rather than a �can�t do attitude.

Ask yourself the following questions:

How important are peace and resolving conflict in your present life?

When you hear about labor strife or warfare, do you muse about ways of making the situation better?

When there is friction in the office or at home, do you proactively try to intervene to reduce the tension?

Do any of your heroes have peacemaking qualities? END PRACTICE TIP

If you would like to further your awareness and commitment as a peacemaker, the place to start is The Third Side:Why We Fight and How We Can Stop by William Ury (Viking, 2000). This brilliant, readable book by a master mediator is a primer in establishing a commitment to peace in your own life and for others.Ury, who is the co-author of the negotiation classic, Getting to Yes, uses numerous examples of creating a culture of peace as modeled by him, President Jimmy Carter, and other leaders in the field.

Commitment to the Skills and Craft of Mediation

����������� Quality pays off in every product and service..It is no less true in the field of mediation�perhaps even more so.

����������� One of the reasons that so many rush into the mediation field and then exit just as quickly is that there is currently no regulation or licensing monitoring minimal competency for entry into the field. While there are certification programs that reward competency, unlike law, mental health, or housing contracting, mediators do not now need a license to practice. This can lead to consumer abuse that hurts the entire field. Opponents of regulation point to the lack of traditional regulation and the freedom of the marketplace as being responsible for mediation�s growth, variety of models, and high satisfaction rate. Yet even critics of regulation concede that the future of the profession and its ability to escape regulation requires that we keep our own house in order through self-regulated standards that include a high bar of mediation competency.

����������� Consumers of mediation services are smart and discerning. At our centers where mediation participants select their mediator from competing profiles on the web, they are articulate about their respect for mediators with extensive training and experience. Clients have an instinctual sense of calibrating a mediator�s fee with competence: charlatans are not suffered gladly.

����������� Regardless of the future of regulation and licensing, your key to success is a commitment to constantly improving your own quality through training, consultation, and supervision. Take a look at the mediation standards of professional organizations set out in the appendix. These voluntary and aspirational standards set out training and quality expectations that should be your minimum goals.

����������� The best mediators I know are continually in training. When they attend conferences, they are front and center in the presentations and workshops put on by their peers. They are current in mediation literature and can discuss new theories and techniques on a high level. They are knowledgeable on pending legislation and model rules and write articles, practice materials, and other contributions to the field. They consult with colleagues in difficult cases and seek out new approaches in situations that the less motivated would consider �routine.�They are learners both inside and outside the mediation room.

����������� If you are considering a career in this profession, you should emulate the learning approaches and actions of successful practitioners. With the understanding that your mediation training is never over, you should be continually seeking out new courses, books, and opportunities to improve your competence. The Japanese call this approach Kaisen--that is, an approach of ongoing improvement. Try to incorporate Kaisen in every aspect of your evolving competence. Kaisen is not only continually stimulating but it will never let you settle for the known and familiar. Ultimately, regardless of your marketing or your practice management, your success in the field will be how effective you are at mediating.

Commitment to Making Your Living through Mediation Work

����������� When I first entered the field in the late 1970�s, many mediators and critics of mediation alike were in agreement on one point: unlike other professionals who charged fees, there was something unseemly about mediators charging for a living.Critics saw mediators who charged fees as being opportunistic and just a bit fraudulent to the public.Their Reasoning?If the service is so useful, it should be given freely and for free. Many mediators shared this view---but for very different reasons: since mediation is so important for the participants and rewarding for the provider, charging a living wage might deprive some from this important transformative experience and might deprive the mediator from fully practicing their mission in life.

����������� This approach lives on today. Many judges and legislators eschew programs that will pay mediators.Their view?There is an ample supply of volunteers--and after all mediation is God�s work. Mediators, particularly those born again after inspirational trainings or transformational experiences around the mediation table, often buy into this attitude.

����������� No wonder there are so many mediators who are talented and committed peacemakers but leave the field due to hunger. Mediators who will think nothing of giving away their services would never expect the same of dentists or ice cream storeowners. By not insisting that mediators be paid for their efforts and contributions, many mediators contribute to the large number of peacemakers leaving the field---depriving the public of their conflict resolution services.

����������� The first step in making your mediation work to provide you a living is your affirmative decision to do so. Many mediators truly enjoy their peacemaking work as an avocation. They enjoy attending trainings and conferences to improve their skills and then enjoy providing services on a volunteer or part-time basis. They work in community mediation centers, for non-profit groups, or fill in as-needed for professional mediation groups. These mediators make an invaluable contribution to the resolution of conflict in their communities�and many might lose their peacemaking zest if they did it full time, day in and day out---and depended on those skills either to attract clients or keep a job.

����������� I fully understand and support this choice of part-time peacemaking. When I was a boy, my mother spent every evening on the sofa knitting elegant clothing for all members of our extended family.Her knitwear brought ooh�s and aah�s from her friends and people on the street. Even the professionals at the local knitting store admired her handiwork.At one point, another customer in the store asked my mother to knit a dress on commission.After accepting the assignment, my mother was in a state of constant stress and agitation�and she never finished the dress.Knitting, an act of joy and love when she was giving away her work to her family, had become a tiresome and stressful enterprise.

����������� You can be a peacemaker without making it your day job. It may be the best decision you make. However, if you want to spend your days mediating, you have to be prepared to take your skills to the marketplace. This means you must adapt your peacemaking commitment to job requirements or a practice setting�without compromising your core values.

If you opt for a paycheck, either in the public or private sector, you will immediately be faced with protocols and demands that may differ significantly from the models that you learn about in books and training courses. For example, one of the largest employers of mediators in Los Angeles is the Conciliation Court within the Los Angeles Superior Court�a mediation servicefor custody and visitation issues.As a staff mediator, you would receive top notch advanced training, long term supervision from senior staff, and a salary plus fringe benefits from Los Angeles County (they never bounce a pay check!). Perhaps most importantly, you would have an opportunity to mediate every day with a diverse range of people. Your skill would rapidly develop as you faced challenges and pressures from the participants, their lawyers, the court staff, and the demands of the daily issues.

����������� However, as a court staff mediator, you may be required to modify your views of mediation and skills to fit the framework of the job.The parties seldom voluntarily enter mediation--they are required to do so by statute and are ordered to participate by the court. So much for consensual participation. Due to the demand for services, it may take 2-3 months for an appointment that may be limited to two hours, agreement or no agreement. So much for gearing the process to the participants.Even if the parenting issues are tied to concerns about child support, the family home or other financial issues, the mediator is restricted from addressing any issues other than custody and visitation.So much for linking issues for an overall agreement. In over half the conciliation courts in California, if the parties do not reach agreement, the mediator will be authorized and required by court rules to make a recommendation to the judge, utilizing communications and observations from the mandated mediation session.So much for confidentiality and privacy.

����������� While pressures and limitations differ from position to position, every job in mediation will require compromises. If you work in an ombudsman�s office, you will be restricted on the issues and parties that you can work on. If you work for a mediation provider firm, you may be required to sell the mediators on the firm�s panel when you might know of better mediators elsewhere. Get ready---every position will have its requirements, and its limitations.

����������� Private practice is also not free of cross-pressure. You will face people who have done awful things and who might ask you to be an accomplice in their schemes to defraud the government or the other party. Parties may be only willing to pay for an hour of your time when you believe that the matter calls for at least three hours to do the job competently. A referring lawyer or accountant may request you to steer the parties back to their offices when you have real questions about the competence and/or ethics of those professionals. You may turn away people who could benefit from your services because they can�t pay your fees�and you have rent to pay.

Keep your seat belt buckled�get ready for a wild ride!

����������� As you can see, your commitment to make your living as a mediator may face major challenges. It happens in every field when reality comes face to face with lofty ideals and initial expectations. Through it all, unless you stay in the saddle and either keep your job or stay in practice, you will not have mediation as your day job---and not just you but your community may be the worse for your inability or unwillingness to manage these inevitable bumps.

Strategic Planning and implementation of Your Mediation Career

����������� In training and talking with mediators throughout the world, I have been continually amazed by a disconnect between what mediators do for the parties that they help around the mediation table and what they do in managing their own careers. The disconnect is that mediators are skilled strategists in planning how to resolve the conflict of others but are reluctan

Biography


Forest (Woody) Mosten is Adjunct Professor at UCLA School of Law where he teaches Mediation and Lawyer as Peacemaker. He and has been in private practice as a mediator since 1979. The author of four books and numerous articles on mediation, collaborative law, legal access, and building a peacemaking career, Woody served as convener for the 1999 international symposium, Training Mediators for the 21st Century. He has been Guest Editor for the Family Court Review’s special issues 4 times, most recently for the July 2015 issue on Peacemaking for Divorcing Families. Woody trains mediators, collaborative professionals, and lawyers in conflict resolution courses ranging from basic to master classes and keynotes conferences throughout the world. 



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Website: www.mostenmediation.com

Additional articles by Forrest (Woody) Mosten

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