Author’s Note: During the times of Covid-19, it is difficult to focus on anything but day-to-day concerns. The author wishes to acknowledge the personal challenges being experienced by everyone. Despite its severity, one thing the coronavirus cannot kill is our dreams. The time will come when our attention will return to the future. In the meantime, this article is offered as a resource for those who dream of a future in mediation.
Mediation is a relatively young, exciting and expanding field of practice. Mediation practice appeals to those who are interested in helping people resolve disputes in a positive way that is less adversarial than arbitration and trial. Mediation can provide an alternative to working in a traditional law firm, litigation or other professional occupation and it offers a variety of part-time and full-time practice opportunities. To launch, build and maintain an active mediation practice, however, it is necessary to have more than a strong interest in mediation. Careful steps need to be taken to develop skills and effectiveness as a mediator. Mediators also have to position themselves for referrals through effective business development practices and thoughtful promotion of mediation services.
As a threshold step, prospective mediators can conduct an honest self-assessment to determine whether professional practice as a mediator is compatible with one’s personality, skill set and natural orientation. See Mediation Self-Assessment at the end of this article. The personal and professional demands of mediation can be significant as well as transformative. Mediation also inevitably involves a fundamental re-interpretation of conflict from an aberrant event that is to be avoided at all costs to a normal part of everyday life.
One unifying principle among mediation practitioners is that they do not view conflict as abnormal or pathological; instead, they see conflict as a natural outgrowth of human interaction where people have competing interests and differing perspectives.
In the seminal book, Getting to Yes–Negotiating Agreement Without Giving In (1981), the authors state, “Conflict is a growth industry.” Indeed, opportunities for skilled mediators are expanding every day in a number of areas–as is competition by and between mediators. As mediation practice grows increasingly crowded, however, it is more important than ever to understand ways to explore mediation and to carefully prepare for entry into the mediation world.
Getting Started
Falling in love with the idea of love is not love,
Nor is falling in love with the concept of mediation the equivalent of being a mediator.
In their enthusiasm for the concept of mediation, people often ask, “How do I get started as a mediator?” In terms of educational preparation, there is no well-established broadly available educational or career track. Few entry-level positions exist in the field of mediation due to the relative youth of the field and the nature of mediation practice where party preferences for mediators are highly individualized and subjective. Still, a growing number of universities and law schools offer degree programs in dispute resolution, including Pepperdine University Straus School of Law, University of Missouri School of Law, Center for the Study of Dispute Resolution, Hamline University School of Law Dispute Resolution Institute and University of Southern California Gould School of Law.
The Mediation Landscape
Commentators have debated whether mediation has attained the level of a “profession” or “field” because, although international uniform practice standards are being established in a number of countries, there are currently no government licensing requirements to practice mediation in California and most States in the United States. This may open opportunities for casework while simultaneously creating a practice environment that is relatively unstructured, ad hoc and seemingly re-invented on a continual basis. While uniform governmental standards have not taken root in the United States, increasingly, minimum educational and training requirements for mediation practice are being developed for membership on various private, non-governmental mediation panels and for some public agencies, e.g., court-annexed mediation programs, non-profit organizations such as the American Arbitration Association, and for-profit organizations like Judicial Arbitration and Mediation Services (JAMS).
Mediation opportunities exist in a variety of non-litigated conflicts, social media disputes, online dispute resolution programs, family disputes and neighbor-neighbor disputes. For non-litigated disputes, it is not usually required for a mediator to be a lawyer. Professional experience in a specialized field such as psychology, accounting, social work or real estate, may be beneficial for these new mediators.
For litigated disputes, people generally choose lawyer-mediators based upon their litigation and other specialized professional experience, subject matter and procedural knowledge, hourly rates and reputation in a particular field. Many practicing mediators (who mediate litigated cases) have 10-15 years or more of litigation or other legal experience.
Due to the hands-on nature of their work, mediators do not generally use law clerks, interns, externs, or other professional support staff. Some private mediation providers and court-annexed mediation programs may have limited opportunities for interns or clerks.
Entering Mediation Practice
To better understand the landscape of the mediation marketplace, one question to consider might be, “How can a person pursue their interest in mediation by building a foundation for mediation practice, i.e., building mediation skills, establishing a reputation and getting experience in litigation or some other business or specialized field?” As described below, there are a number of concrete, identifiable steps one can take to develop mediation skills and a referral base while still gaining experience as a litigator or other professional. Later, when a person’s reputation and experience are well-developed, they will already have the mediation skills and contacts that are essential to launching a mediation practice.
One distinguishing feature of mediation practice is that the business cycle for each case is short. This has very real implications for mediators who must actively promote their work to a large and diversified group of prospective participants. This may involve many hours of volunteer work, pro bono presentations and participation in professional associations. Hourly rates for mediation vary widely and may rise to high levels, but mediators must be mindful of the reality that each piece of business has a relatively short life span compared to legal work or long-term commercial transactions. Heroic measures by a mediator may resolve a particular dispute, but mediators must take active steps on a regular basis to ensure a steady stream of business. See “Gardening” to Generate Mediation Business, below.
Another feature of mediation practice is that most mediators are sole practitioners. Unlike salaried employees of a law firm or corporate enterprise, whose work takes place in a structured environment with some degree of financial security, mediators have great freedom over their calendar and working conditions with little financial security as independent contractors. With few exceptions, even mediators who are members of a private mediation panel generate revenue on a case-by-case basis. When planning for entry into mediation practice, future mediators, therefore, need to realistically assess an acceptable balance of personal freedom and financial security based upon their individual, family and short/long-term needs.
Career-Building Activities
What follows are several career-building activities that law students, lawyers and others can pursue while still in law school or during their practice/career to explore the field of mediation and to promote their professional development as a mediator.
1. ADR Coursework
Many law schools and universities offer one or more ADR courses, the most common being negotiation or a general overview course in alternative dispute resolution. Some schools offer a broad variety of ADR courses as elective courses, including ADR, mediation, arbitration, negotiation. A few schools offer clinical opportunities for students to get volunteer experience as mediators in small claims court or other settings. Dispute resolution courses generally provide an introduction to a particular subject, along with interactive exercises and role play exercises where students can practice the skills they have learned. Some students are so enthusiastic about ADR that they take multiple courses, thereby developing an academic concentration in ADR. In addition to coursework, students can participate in organized or individual internship programs approved by the school. Internship programs provide a hands-on opportunity to observe the work of a mediator and to get involved in mediation practice.
2. Formal Mediation Training
In addition to educational coursework, law students, attorneys, and others can enroll in private professional mediation training courses. These courses are considered to be “basic training” for dispute resolution processionals. The courses are total immersion workshop style courses that vary in length, but typically range from 32-40 hours. A fee is charged. Practicing ADR professionals usually teach the courses, although this should be confirmed prior to registration. Increasingly, intermediate, advanced, and specialized courses also are being offered. There are many providers of ADR training. Students usually choose courses based upon the subject matter, the quality of the training, the fee, and the location. Law students can enroll in such courses during breaks in the academic year or during the summer.
Another option is for prospective mediators to enroll in training courses in the early years of their careers. It is advisable to enroll in several different introductory mediation courses in order to provide exposure to different trainers, training styles and mediation techniques. Some training providers are approved by the State Bar to provide credit for on-going legal education. What follows is a sample list of ADR training providers:
Straus Institute of Dispute Resolution
24255 Pacific Coast Highway
Malibu, CA 90263 Tel.: (310) 506-4655
Harvard Law School
Austin Hall, Room 002
1515 Massachusetts Avenue
Cambridge, MA 02138
Tel.: (617) 495-1854
30 East 33rd St., 6th Floor, New York, NY 10016
(212) 949-6490
[email protected]
P.O. Box 5
Eagle, NE 68347-0005
acrnet.org
100 Arapahoe Avenue, Suite 12
Boulder, Colorado 80302-5862
Tel.: (303) 442-7367
E-mail: [email protected]
402 West Broadway, Suite 400
San Diego, CA 92101
Tel: 239-3051
adr.org
625 Broadway, Suite 1221
San Diego, CA 92101
Tel.: (619) 238-2400
ncrconline.com
501 West Broadway, Suite A555
San Diego, CA 92101
(619) 280-1866
San Diego, CA (variable locations)
[email protected] (619) 417-9690
3. Connecting with ADR Practitioners and the Business Community
A critical aspect of positioning oneself for a career in mediation is developing contacts and connections within the mediation community. To develop relationships with professionals in the field and to understand issues of current importance, one can attend meetings of the local bar association and professional trade associations for mediators and arbitrators. In San Diego, the following organizations welcome law student participation.
Much like medical interns, law students and practitioners can observe mediations and other types of ADR sessions/hearings as part of their educational process. This type of opportunity may be arranged by a clinical law school program, career services, or directly with an ADR professional. One option is for law students to meet a mediator for lunch to discuss mediation practice, career opportunities, and opportunities to observe mediations. Many mediators welcome student observers.
One important career consideration is positioning oneself vis-a-vis potential mediation consumers, such as insurance companies, attorneys and other claims handlers. Toward this end, students, lawyers and other professionals can join other sections of the bar association that might generate contacts in their field of interest, e.g., the civil litigation section, labor and employment, probate, etc. Professional trade associations are another venue where students can meet professionals in a particular field.
As they gain experience, students can also provide seminars, programs, and other educational activities to organizations that may be future consumers of mediation services. By providing information that is of genuine benefit to prospective mediation consumers, mediators set up a cycle of reciprocation. When the information conveyed is viewed as genuinely beneficial, it will be remembered by prospective consumers for a long time. See, Influence–The Psychology of Persuasion, Dr. Robert Cialdini (1983). In the author’s own experience, a case was referred for mediation by an attorney who attended a pro bono presentation to a regional bar association 15 years after the presentation. Reciprocation involves a process of giving and receiving. It is a powerful process for generating business.
4. Get Volunteer Experience as a Mediator
Law students can participate in clinical mediation programs offered by law schools. In San Diego, three law schools, University of San Diego, California Western, and Thomas Jefferson participate in a joint program that provides students and others with volunteer mediation experience in Small Claims Court and Juvenile Hall.
In addition, students and lawyers can join the panels of non-profit mediation providers and agencies.
PO Box 161066
San Diego, CA 92176
Phone: (619) 280-1993
[email protected]
Students may also find volunteer experience available in non-litigated disputes involving family relationships and juvenile issues. Usually, the source of referrals for this type of mediation would be a social service agency involved with a particular type of dispute.
In addition, students can apply for traditional academic credit internships and externships with non-profit mediation providers (e.g., National Center for Conflict Resolution, above), select private mediators, and court-annexed mediation programs (e.g., San Diego Superior Court). This type of internship provides a student with an inside view of the business and administration of mediation.
Private Internship–Mediation Offices of Gregg F. Relyea, Esq.
501 West Broadway, Suite A 555, San Diego, CA 92101
Tel.: (619) 280-1866
5. Learn More About Mediation and Opportunities in the Field
As one explores the field of mediation, and, more broadly, alternative dispute resolution (ADR), it is helpful to read articles of current interest in the field by practitioners. There are numerous websites and other sources of information about the field, including www.mediate.com, www.crinfo.org, and www.cpradr.org. Reading about ADR will help one understand the marketplace, refine mediation practice interests, and generate employment opportunities. Employment bulletin boards, including mediate.com, will also introduce people to a variety of opportunities for work in other parts of the ADR field, such as arbitration, neutral fact finding, facilitation, collaborative lawyering, and neutral evaluation.
Numerous mediation websites are available, including mediate.com, the world’s largest clearinghouse of information about mediation and dispute resolution in general. This site features articles written by mediation practitioners who are examining and analyzing current issues in the field. Several well-established organizations offer information about mediation, including the American Bar Association, the Association for Conflict Resolution, and the American Arbitration Association. In addition, several university websites offer valuable resources available to the public about mediation.
6. Develop a Niche
By consumer preference, mediators who mediate litigated disputes are often licensed attorneys with long-term experience as litigators. But there are many other fields of mediation where students and others are members of mediation panels and they are selected to mediate disputes, including: family disputes, parent-child disputes, interpersonal conflicts, neighbor-neighbor disputes, noise abatement disputes, disputes involving dogs and other animals and criminal restitution cases.
If you have any special training in a professional field, such as accounting, financial services, psychology, financial planning, banking, or real estate, you may offer your services as a mediator to businesses and practitioners in those fields. Often, there are specialty panels of mediators that have been established to meet the needs of these industries. If you have a degree in a professional area, it will be beneficial to explore additional professional training and certification.
7. Research the Mediation Panels in Your Area
Research the mediation panels that are offered in your area. In any large metropolitan area, there are a variety of mediation panels that are well-established and they do not require panel members to be an attorney. These panels may include court panels, government agency panels, and private non-profit agency panels. You can take active steps to shape your mediation training and experience to meet the membership requirements of a particular panel.
8. “Gardening” to Generate Mediation Business The path from learning about mediation skills to building a thriving mediation business can be long, unpredictable and daunting, although the success of well-established, full-time mediators proves it is possible. Successful mediators build upon their own interests (undergraduate degrees, personal interests) and experience (work in a particular field) to generate prospective mediation business. Growing a mediation practice is not unlike planting and cultivating a flower; it takes time and consistent effort. And it takes on-going effort to maintain a mediation practice. Taking the step of formal mediation training is like planting a seed; it is only the beginning. Plants, not unlike the elements of a successful mediation practice, need the right amount of sun, water, attention, and space to grow and thrive.
Conclusion
There are many ways to explore your interest in mediation and to build a foundation for a career in the ADR field. To continue its growth, the mediation field needs both young people and experienced professionals with specialized experience and formal mediation skills. Generally, a law degree or membership in the Bar Association is not required to be a mediator.
Mediation practice can be launched successfully when proper training and experience are combined with specialized knowledge. Even if one never handles a case in the role of a mediator, mediation skills can be used to advantage at home, at work and in other professional endeavors.
MEDIATION SELF-ASSESSMENT
*It may be helpful in to rate interest on a scale of 1-10 in response to each question. Note: This is not a science-based assessment instrument; it is intended to assist the reader in judging their interest level using a scale instead of a binary (yes or no) response.
Example
Middle of the Road = 5
Lowest 0 ________________________________ 10 Highest
1. Passion Does the idea of helping people resolve conflict resonate with you? Is there some part of you that is drawn toward helping others who are in turmoil? Can you see yourself waking up every day with a positive energy for this type of work? If so, you are part of the way toward being a good candidate for a future in mediation. However, passion alone is not enough. It would be like saying you love music, but you can’t carry a tune or you have no skill for playing an instrument. You may have a future as a music lover or somewhere in the music business, but not necessarily as a professional musician.
2. Aptitude and Skill Do you have the skills, both intuitive and learned, to consistently be of help to others who cannot find a path to resolution? Have you put in the time to acquire the ability to put conflict resolution skills into practice instead of merely learning about or admiring the skills? Some people may love baseball (passion), but they don’t have the desire to put in the hours of learning and practicing the fundamentals to become a good player. Passion and aptitude are two-thirds of the equation, yet there is a third element that is essential for your personal growth, happiness and success in this field–compatibility.
3. Compatibility Are you a natural intermediary? Do you have the ability to “sit with conflict” and not be drawn into it on a personal level? Does your blood boil when you are around others in conflict? Does confrontation disgust you or fascinate you? Do you have a measure of emotional and intellectual distance that allows you to sort through the issues and see pathways for resolution? Do you run away from conflict or toward it? Can you stomach the experience of being around people on a day-by-day basis who are fighting, arguing, and being contentious? Is it corrosive for you to be surrounded by people in conflict or is it a healing experience, both for you and for the people in conflict? Are you patient? Can you allow others time to process and digest information? Are you able to allow others to make decisions for themselves, even if their decisions may differ from your own judgments and preferences?
WEBSITES AND PODCASTS
www.mediate.com (wide variety of topics, including articles about mediation/ADR processes and a bulletin board for jobs in the field of dispute resolution)
www.cpradr.org (CPR Institute for Conflict Prevention and Resolution) New York City—involved in corporate and public policy mediation; also a clearinghouse of information about dispute resolution)
www.acrnet.org (national trade association for professional mediators and ADR providers)
www.iamed.org (professional association of mediators)
www.jamsadr.com (JAMS/ENDISPUTE nationwide provider of private mediation services)
www.adr.org (American Arbitration Association—emphasis is on arbitration, but there is also a substantial amount of information about mediation)
https://www.beyondintractability.org/ Conflict resolution information clearinghouse)
www.willamette.edu/wucl/wlo/dis-res/index.htm (case law and legislative
developments in the dispute resolution field) (Note: The spelling of the university is Willamette, not Williamette)
www.adrworld.com (news and developments in the dispute resolution field)
www.divorcesource.com (family mediators, articles, links)
BOOKS
Basic Skills for the New Mediator (2nd ed.), Allan H. Goodman (2004).
Becoming a Mediator: Your Guide to Career Opportunities, Peter Lovenheim and
Emily Doskow, Nolo Press (2004), ISBN 1-4133-0077-4.
Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William
Ury, Penguin Books (1981), ISBN 0-14-01.5735-2.
How To Make Money as a Mediator (And Create Value for Everyone): 30 Top Mediators Share Secrets to Building a Successful Practice, Jeffrey Krivis, Jossey-Bass (2006).
Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know, Tammy Lenski, iUniverse, Inc. (2008), ISBN 0595445004
Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation, Jay Folberg and Alison Taylor, Jossey-Bass (1984), ISBN 0-87589-594-8.
Mediation: The Roles of the Advocate and Neutral, Dwight Golann and Jay Folberg,
Aspen Publishers (2006), ISBN 0-7355-4016-0.
Mediation Career Guide: A Strategic Approach to Building a Successful Practice,
Forrest S. Mosten, Jossey-Bass (2001), ISBN 0-7879-5703-8.
Mediation Theory and Practice, James Alfini, Sharon Press, Jean Sternlight, Joseph
Stulberg, LexisNexis (2006), ISBN 0-8205-7021-4.
Negotiation, Mediation, and Dispute Resolution–Core Skills and Practices, Gregg F.
Relyea, Resolution Press (2020) ISBN 978-1-7344275-0-9.
Negotiation, Harvard Business Essentials, Harvard Business School Press (2003), ISBN 1-59139-111-3.
The Art of Mediation, Mark D. Bennett, Michele S.G. Hermann, National Institute of Trial Advocacy (1996), ISBN 1-55681-483-6.
CHILDREN’S ILLUSTRATED STORYBOOKS ABOUT CONFLICT RESOLUTION SKILLS
(Translated into Spanish, Filipino, Hindi, Italian, Russian and Braille)
Trouble at the Watering Hole, Gregg Relyea and Joshua Weiss, Resolution Press (2017).
Bullied No More! Gregg Relyea and Joshua Weiss, Resolution Press (2018).
Phony Friends, Besties Again, Gregg Relyea and Joshua Weiss, Resolution Press (2019).
The Intelligent Negotiator, Charles Craver, Three Rivers Press, (2002).
The Mediation Process: Practical Strategies for Conflict (3rd ed.), Christopher W. Moore.
The Mediator’s Handbook (3rd Ed.), Jennifer E. Beer with Eileen Stief, New Society Publishers (1997), ISBN 0-86571-359-6.
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