Starting a Mediation Practice - the conversation is continued

Lela P. Love is the ABA Dispute Resolution Section's March 2007 Voice of Experience and has advice for those wishing to start a mediation practice.

For additional resources see;

Steep Path Awaits New Practitioners In Field by Jennifer Thomas-Larmer

Building a Successful Mediation Practice by James C. Melamed
Business Planning For Mediators by Robert W. Simmons
FAQ - I'd Like to Be a Mediator, Can You Just Answer a Few Questions? by Stephen R. Marsh

ABA Gives Mediators Ethical Guidance

Do you have a question about a mediation ethical issue?

As of yesterday the ABA's Dispute Resolution Section Committee on Mediator Ethical Guidance stands ready to accept your inquiries and provide advisory responses.

The Committee includes ADR practitioners, academics and leading ADR ethical experts from the public and private sectors.

It may accept an inquiry from anyone or may consider an issue on its own initiative.

Send your question to;

The ABA Section of Dispute Resolution

740 15th Street NW

Washington D.C. 2005

Attention; Mediator Ethical Guidance

Include a letter summarizing the issue and a completed Mediator Ethical Guidance Intake Form.

Golden (Mediation Marketing) Nuggets

Quick, better add Golden Media's blog to your mediation marketing must-reads.

It sounds a cool place - with an address like 1541 Ocean Avenue, Santa Monica, 90401 - it should be a TV program.

Take a look at recent posts like;

Mediation Practice: Generalized vs. Specialized
Mediation Marketing Mistakes

Mediation Pricing and Positioning: How to Drive Business to Your Door at Your Dream Fee

Welcome to the conversation you guys

It's the mediators who are connected and have authority in their niche who will live long and prosper

The news that retired U.S. Supreme Court Justice Sandra Day O'Connor will mediate a decade-old dispute between the U.S. government and over 1,000 heirs of former landowners of 36,000 acres in western Kentucky continues the global trend of former judges serving as mediators (via Keith Seat's Mediation News).

It also brings to the surface an issue that all jobbing mediators face.

Search CNN for the word 'mediator' and you will see what I'm getting at. You will find a couple of pages full of reports of mediators on the world stage.

But they won't be the rock stars of the mediation community as we know it. You know, the mediators who write books and speak at conferences - our champions.

Instead, they will be mediators who, as the authors below so politely put it, 'are not classically trained'. They will be retired jurists, diplomats, bureaucrats and other assorted insiders - who for the most part are in the role of a mediator by virtue of their office not mediation skills - and will have a mix of transferable skills that may or may not include consensus building.

That all brings to mind one of the most insightful articles written in our field in the last five years instrumental in evolving my own definitions of mediator neutrality and independence;

Skill Is Not Enough: Seeking Connectedness and Authority in Mediation (abstract only)* by Chris Honeyman of Convenor, Bee Chen Goh and Loretta Kelly of Southern Cross University.

This article was born out of Honeyman's observation that more and more parties were choosing retired judges and others who were not classically trained mediators to help them resolve their disputes, especially at the top end. In the article he examines the flagging "marketability" of mainstream professionally trained mediators in the U.S.

Searching for an explanation of this phenomenon, Honeyman found a possible answer in Melbourne, Australia, where in 2003 he listened with a Western ear to the presentations of Loretta Kelly and Bee Chen Goh about the importance of connectedness and individual perceptions of authority to the parties in the mediation of indigenous disputes.

The article presents case histories from Australia and Malaysia to illustrate these concepts and says the same concepts are behind the shifting of the market for mediation in the United States.

Connectedness and authority, connectedness and authority, connectedness and authority... I'd say they're right.

You could connect the dots at my previous posts Great on paper, crap at the table and Mediators Free of the Baggage that Former Judges Carry - but all that's just sour grapes.

... because it's the mediators who are connected and have authority or mana in their niche who will live long and prosper.

The rest will always be wanna be's.

*Negotiation Journal Vol. 20 Issue 4 Page 489 October 2004

No online full text but you can purchase access here - Chris if you are reading this is it tucked away on the free net somewhere?

Weenies

What About Clients? not only picked up my The Extra Mile but even managed to work in weenies - the word.

I think I'd like Dan Hull if I met him.

The Extra Mile

In the hope that WAC? may pick up this post as a shining example of client service, I report that upon arriving at a rather dodgy mediation venue yesterday this multitasking mediator's first task after setting up the room was to clean the loo!

Mediation Marketing: Direct Mail Works, Geoff!

Dina Beach Lynch has joined the conversation!

Started by my post on marketing mediation and picked up and given an expert going over by Mediator Tech here and here

TGI Friday - Take The Fake Smile Test

Ok, so they get me every time.

"Ohhh... Geoff! Don't believe anything they tell you in there...she's just a smiling assassin...."

Y'know what? I never know who is faking what and have long since gave up trying to tell.

Instead, I prefer to take everyone at face value until I have a reason not to.

This is a bit of fun...take this fake smile test - 20 smiles - genuine or fake?

How good are you?

I got 12/20!

Go here for tests on detecting fake voice, face and micro expressions

Training

Here's my group this morning trying out Diane Levin's wonderful training exercise

No one got to win/win but lessons were learned.

Listening During Settlement Negotiations

Do insurance work? Then you will be used to claims adjusters and their ways.

This interesting piece on Listening During Settlement Negotiations posted in the last day or two over at the Trial Lawyer Resource Centre Blog is worth a look.

'Every day, I speak to insurance claims adjusters on the phone attempting to resolve personal injury cases. It is dangerous to try to put people with complex goals and motives into simple boxes. But let's do it anyway...'

Marketing Mediation Services (2)

Did I mention the wonderfully generous mediation marketing blogs out there in my previous post where I asked some questions about direct marketing of the blogosphere's top ADR marketing wizards?

Well, within HOURS of that post Dr Tammy Lenski had penned this post and this post over at Mediator Tech and Dina Beach Lynch had posted a comment while she was on/just back from vacation saying she would have something for us all by week's end!

Man, the speed of this astounds me. The slowest thing about it was me getting up this morning down here in New Zealand to read them.

It helped that Tammy was in bed with a cold and had way too much cold medicine. So she couldn't sleep - but hey! it's all good for us readers and bad for her partner Rodney.

Her two posts are a goldmine of information on this topic and should have taken days not hours to put together.

If this kind of advice and support had been around when many of us started out we would have tripped up only half as often.

Marketing Mediation Services

There some wonderfully generous blogs out there that focus on building a mediation business and marketing it, including... Mediation Mench and Mediation Marketing Tips and Mediator Tech.

Well, today in my morning mail I found two direct marketing items, both fairly impressive.

Can I ask you 3 marketing gurus this... do either of these marketing techniques hold any potential for mediators?

The first is a letter from Bangkok, Thailand (with some lovely stamps) advising that New Petone Tailor's Managing Director, Mr S.N. Sam, would be visiting a town near me in April as part of an 'extensive tour of NZ' and he could measure me for a new tailor made suit or three if I had the time and cash.

The second item was an article on public speaking appearing to have been ripped from a magazine as if the sender had read it and thought it might interest me. It referred to a speaking tool of some sort and came with a signed hand written 3M sticky note on it saying 'Geoff try this. It works!'

Any lessons for mediators here?

Business Facilitation Toolbox

What a wonderful resource Anthony Cerminaro over at Mediation Mindset points us to in his latest post.

The Business Facilitation Toolbox is a mediation trainer's dream treasure trove.

Worth a very long look. Register for free to download materials in .pdf format.

Apart from old standards like Count the F's there seems to be some neat new stuff here.

What about this for an ice breaker - found in Common Introductions

Find things in common
Draw up a table of the names of the participants along the side
and the top. Participants must find out one thing that they have in
common with another person in the room. They may not have the
same thing in common with more than one person. As they find
things out, they can write them into the appropriate place on the
table.

Juries in Mediation

The spectacle of Spector murder trail getting underway has prompted me to suggest the way in which juries are relevant to the practise of mediation.

Mediators may find a lot of what is written about trial juries to be off topic but if you like reading outside our own narrow tram tracks, some of it may be of interest...

After all, jury watchers are keen students of human behaviour and are interested in what makes people tick.

Just like good mediators.

I follow two jury centric blogs;

jurygeek by Clay S. Conrad an appellate attorney from Houston who has been studying the jury since 1993 and is now a partner in Conrad, Marteeny & Looney, and

Jury Blog by Valerie Hans of Newark, Delaware who has been studying, researching, and writing about the jury as an institution for more than 30 years

You can subscribe to a free newsletter;
Jur-E Bulletin a weekly email that includes a mix of amusing and informative stories on the jury, edited by Anne Skove at the National Centre for State Courts in the US.

Jury selection in the Spector trial begins today and full coverage begins at Court TV

The Perfect Mediation

[please press the centre arrow - video 3.57min]

We've all been here I suspect!

Take a load off, have a peek, get yourself set for the week - especially if you are one of those mediators who takes themselves way too seriously.

Available from the good folks at mediate.Com

The Alliterative Allure of Prof. John Wade

I mention Prof. John Wade a lot in this blog for a couple of reasons.

First, he is wonderfully knowledgeable about all things mediation, but more than that - he is one of my favourite types of people - he is a list junkie... he has 5 ways to do this, 10 ways to do that...

Prof. Wade's lists are adorned with alliterative titles like Dobermans and Diplomats (a list of 17 impasse breaking strategies) or How to respond when eager, expensive, entrenched expert egos escalate enmity (a list of 12 ways to respond to duelling experts).

Or The Five Humble Hypotheses may be more your thing; a list of 5 questions that every mediator must ask themselves as they make their way to the mediation room...

1. What are the causes of this conflict?

2. What interventions might be helpful?

3. What bumps/glitches are predictable?

4. What substantive outcomes are possible/probable?

5. What risks if the conflict continues?

The photo?... oh, that's just one of the Prof's old shopping lists which I am yet to analyse but the list below is one you really gotta see and is one of the more famous in the series.

Because it is with some confidence Wade decrees there are 16 (count'em 16) methods for 'crossing the last gap in negotiations'.

Take note, they are:

1. Talk - Try to convince

2. Split Difference

3. Expanding the pie by subdividing the last gap

4. Expanding the pie by an add-on offer - "What if I moved on.....?"

5. Refer to a third party umpire

6. Chance - flip coin

7. Chance - Draw gradations from a hat

8. Transfer the last gap to a third party

9. Conditional offers and placating incremental fears - "What if I could convince client to...? How would you respond?"

10. Pause - and speak to significant others

11. Pause - and schedule time for a specific offer

12. Defer division of last gap; divide rest

13. Sell last item at auction; split proceeds

14. Pick-a-pile; you cut, I choose

15. Skilled helper has a face-saving tantrum

16. File a (further) court application – pursue pain and hope

For a detailed and useful discussion of each of the gap strategies go to the online full text at Chapter 54 of that seminal work The Negotiator's Fieldbook


P.S. I tried #15 the other day - the response from Counsel? "So Geoff, it's all about you is it?"... I will be moving on to try #1 thru' #14

Want a client newsletter that's real easy?

I mentioned before the first bi-monthly issue of Mediation News for the 21st Century, a newsletter service provided by D.C mediator Keith Seat and the good folks over at Mediate.com.

The second is about to go out.

You can now get them customised with your name, photograph or logo, and contact information - you provide the introduction to the newsletter and let Keith provide the hard content.

Starting at $240/yr choose the number of recipients that fit your practice – 100, 200, 500 or 1,000 ...!

Take a look at some samples here

Full information here

This fax seeking mediation just in from Dallas lawyers...

(click on image to enlarge)

via Lowering The Bar

A Venue Can Set The Tone

Here's a good piece just posted at mediate.com by Paula Young of Appalachian School of Law in Virginia about how influential the venue is on what happens at mediation - something that has long been ignored and worthy of some research.

Yesterday I was at one of my favourite olde world venues, The Northern Club in Auckland, New Zealand.

Because it's like a time capsule full of creaky stairs and military books behind glass, the mediations tend to be more formal than, say, if we were in a modern law office and I pick the mediations we have there carefully.

These were our rooms yesterday;

$950 per hour?

If you are a high stakes mediator (do you really describe yourself like that??) - well anyway, if you are operating in the rarefied atmosphere of the legal world your fees may, more or less, track attorney rates.

If so, this map may interest you as it is a survey of high-profile, complex bankruptcies showing a bountiful harvest of hourly rates across the US.

Why bankruptcy? Because attorney hourly rates are often required by the court so its a good (and rare) source of otherwise hard-to-get solid data.

See: He bills how much? The $1,000-hour lawyer and other (mostly) urban legends

Sort of related: Contingent Fees For Mediators

Via Ernie The Attorney

Skype Prime Beta - a new tool for mediators?

With apologies to Tammy at Mediator Tech whose blog is the place to go for mediator tech stuff, can I tell you about Skype Prime introduced yesterday.

Ordinary free voice Skype is playing an increasingly important part in my practice, both in pure mediation terms - where I use a mix of email/land line and Skype to resolve matters (in particular follow up unsuccessful mediations) and also to communicate with colleagues all over the globe - I am Skyping with Justin Patten of Human Law in the UK this evening.

As I say here at Cold Case, I don't tend to charge for the follow up stuff...it's messy and I don't like waiting to get my bills out, best to do that within a day or two of the mediation.

But Skype Prime may change all that because it enables for the first time paid Skype-to-Skype voice and video calls.

So now you can charge other people for calling you either a one-off fee or by the minute. You set the rate.

All calls start out as free but you can then switch to the paid calling.

The call then proceeds as a paid call and the appropriate amount of Skype credit is deducted from the caller's Skype account and that money then goes to the receiver’s Skype account.

The provider does not get the call fees directly as Skype credit — rather, they go into a special holding “box” and you, the provider, then receive the revenue via PayPal. Simple!

Oh, Skype takes 30%...hmmmm... (at that sort of cut this might be bigger news for the porn-call industry than mediation practice)

Questions? Go to Skype Prime FAQ

Skype Prime Terms of Service here

International Academy of Mediators to meet in Philly

The upcoming IAM spring conference is on May 3-5 2007 at Philadelphia and has an interesting program just out with a theme of what do the lawyers think?, including;

Corporate Counsel: what they look for in mediators and what makes them crazy

Corporate Counsel round table and open microphone with IAM members

Elite Lawyers: best and worst mediation experiences

Anyone with a spare sense of humour, please forward it to the folks over at Family Lore

Oh Dear!

This just posted at Family Lore after my recent Whaddaya mean it's not a panacea??.

"Ruffling feathers

It seems that my post 'Solicitors blamed again' may have ruffled a few (kiwi) feathers.

I'm not sure if Mr Sharp's post is meant to be tongue in cheek, but if
not I really don't know why mediation should be considered a panacea for all disputes. As I said in my post, that has certainly not been the experience of my clients"

I'll put it down to cultural differences when it comes to humour just like I did last time when the folks in LA wrote to me.

[John, no offence intended and the post was tagged, 'good mediation stuff on the net'....You know it's an interesting area, these cultural differences in the way we approach humour.]

Old Man

From the documents I had been given beforehand, I knew he had substantial assets so I was suprised at his appearance when we met at the start of the day.

He was an old man - I guessed well into his 70's, gaunt and gnarled.

He looked to me like he had been on the land for many years - but I knew that he had not; my papers told me he had been successful in retail in Europe and only returned to New Zealand late in life.

It had also been clear from the background that the family was not close.

No wife on the scene, perhaps dead - I didn't enquire. Two daughters and a son, all three of whom were at the mediation, all in their 50's.

They treated him badly. It took me by surprise. I was missing something, as mediators always do when we sit with families who are at war.

He seemed too frail for them to do this to - beat up on him just because of what they wanted - for him to take a property off the market - they all but said it: 'we'll sell it when you're gone'.

Although I had no business to be, he could see I was worried. He pulled me aside late in the morning and what he said caught me off guard.

I wasn't ready for the connection. I didn't think we had one.

'I've taught them too well' he said 'I was always too busy for them when they needed me - you reap what you sow...'

And then, as he told me what terms he was resigned to, he stared through me and out the window behind me. He added, 'You know, at some point in your life you stop thinking of time as passing and think of it as time remaining.

I thought about that all the way home.

And I couldn't stop a sad song rattling around in my head...

A child arrived just the other day,

He came to the world in the usual way.

But there were planes to catch, and bills to pay.

He learned to walk while I was away.

And he was talking 'fore I knew it,and as he grew,He'd say, "I'm gonna be like you, dad.

You know I'm gonna be like you."

And the cat's in the cradle and the silver spoon,

Little boy blue and the man in the moon.

"When you coming home, dad?" "I don't know when,

But we'll get together then.You know we'll have a good time then."

My son turned ten just the other day.

He said, "Thanks for the ball, dad, come on let's play.

Can you teach me to throw?"

I said, "Not today,I got a lot to do."

He said, "That's ok."

And he walked away, but his smile never dimmed,

Said, "I'm gonna be like him, yeah.You know I'm gonna be like him."

And the cat's in the cradle...

Well, he came from college just the other day,

So much like a man I just had to say,"Son, I'm proud of you.

Can you sit for a while?"

He shook his head, and he said with a smile,"What I'd really like, dad, is to borrow the car keys. See you later. Can I have them please?"

And the cat's in the cradle...

I've long since retired and my son's moved away.

I called him up just the other day.

I said, "I'd like to see you if you don't mind."

He said, "I'd love to, dad, if I could find the time.You see, my new job's a hassle, and the kid's got the flu,

But it's sure nice talking to you, dad.It's been sure nice talking to you."

And as I hung up the phone, it occurred to me,

He'd grown up just like me.

My boy was just like me.

And the cat's in the cradle...

[aspects of this case have been modified to protect confidentiality]

Whaddaya mean it's not a panacea??

There must be a law against saying this kind of thing

The Effective Use of Experts in Mediation

...now showing over at the Mediation vBlog Project.

Or take a look at the thumbnail in the sidebar to your right.

I talk to Barry Jordan of PPB McCallum Petterson, a leading forensic accounting firm. Barry is Director of his firm’s Forensic Services Team.

I ask Barry about his role as an expert - getting down to the nuts and bolts of an expert’s role in joint and private mediation sessions; how mediators can assist experts in narrowing the all to often gap between competing expert views; how mediators can move from the science of the case (the numbers/technical aspects) towards the pragmatic/commercial deal making part of the mediation and how experts can ‘partner’ mediators when the going gets tough.

Mark Gerzon - Leading Through Conflict

Mark Gerzon, co founder of the Global Leadership Network and President of Mediators Foundation, is in town speaking at Victoria University last night.

Mark's new book, Leading Through Conflict is just out.
1. table of contents here
2. excerpt here

Whilst Mark spoke of global leadership and of the tools that help leaders see the big picture, much of what he said could be translated directly into the mediation room...presence, inquiry, bridging etc.

I will be posting a 10 minute snippet of his talk over at the Mediation vBlog Project soon.

Small Talk

Struggle with leading the small talk at your mediation like me?

Hey! get used to it - it's part of our job, just as much as reality testing and open questioning.

David Maister's post What Am I Supposed To Know About? yesterday may help.