Make alternative dispute resolution your day job

By Robert E.L. Wright
Published: June 1, 2009

So you’ve finished your mediation training and gotten qualified. Now you’re a mediator.

Unless your phone is constantly ringing with people requesting you to mediate, read on.

Just as a law degree doesn’t guarantee legal work, mediators may need to consider other ways to use their skills. Just as there are opportunities for lawyers beyond actually practicing law, there are many ways to create a career using mediation skills outside of the litigation.

It’s never too early to think, “What can I do with my skills besides mediate?”

No magic beans for success

Lawyer/mediators focus on litigated cases as the source for their mediation opportunities largely because courts across the country have encouraged mediation.

As fellow mediator Lee Jay Berman wrote: “Mediators have traditionally left their basic mediation training courses and fled to the courts [looking for cases to mediate] like ants to a picnic.” However, in California where he practices, he says there is “not enough food at the picnic.”

Many discouraged mediators approach me at conferences to ask how I built my practice, hoping to find the key to their own success. I had the good fortune of becoming a mediator before the court rules changed, and I was able to mediate for some very good lawyers as soon as mediation began gaining ground.

Of course, a master’s degree in psychology helped, as did speaking, writing and serving on boards for every ADR and mediation group that asked me. But I planted no magic bean to grow my practice.

New mediators are struggling to create a sustainable mediation practice, both in counties where mediation has not yet caught on as well as in more mature, competitive mediation markets where mediators with good reputations already attract most of the work. So, if the courts do not provide enough work to keep mediators busy, what else can they do?

How important is it to you to call what you are doing “mediation”?

The skill set in which you are trained can be practiced under many titles: Ombudsman, client/employee relations manager, union negotiator, facilitator, manager, claims manager, human resources, peacemaker, transactional attorney, collaborative lawyer, broker, intermediary, moderator, diplomat and even community organizer.

Are you passionate about the title or about practicing the skills?

Which arenas to take it?

It has been said that the surest way to make money in our society is to do the things that other people do not want to do. In mediation, this may mean turning your back to the courthouse and finding the road less traveled. While these opportunities may be harder to find than litigated cases, when you do find them, you will find greater gains with less (or no) competition.

The first step is to figure out where your education, training and career background intersects with your passion. Mediators with backgrounds in psychology will likely have different career paths than those with backgrounds in teaching, law or real estate.

What do you do in your profession that interests you to the point you lose all track of time? Seek out or create a way to marry your conflict resolution expertise with that endeavor and work will never be work again.

Mediate.com lists job opportunities in the field of mediation for paying members at www.mediate. com/careers.

Whatever you choose, go forth, spread the word, multiply, practice the skills, do good work, make money, and, above all, enjoy yourself.

Opportunities for mediators are available all over

Now that you have married your passion with your skills, here are some ideas for further research. This list is by no means exhaustive, and is intended to start your juices flowing and wheels turning. Research thoroughly and go over the list with a few of your closest friends to brainstorm other options. Take any additional training and course work that may be required, and have fun being a pioneer.

Government. Federal, state and some local governmental agencies may have laws, rules or ordinances mandating or encouraging the use of mediation. Some even hire mediators into salaried positions.

Ombudsman. College campuses, hospitals and large corporations hire ombudsmen to handle conflicts within their organizations. Ombudsmen are essentially mediators employed by the entity to settle those conflicts. Opportunities may arise in job postings, but the idea might also be pitched to a large entity in your area that has not yet considered such a position.

Business. Corporations have tremendous need for a mediator’s skills, but may not know it yet. While some of our colleagues are already doing this work, the door is wide open for people to help big business see the value added by having a mediator assist in situations such as mergers and acquisitions, management and culture change programs, retention programs, and facilitating management and board level meetings.

Education. Parents, teachers, administrators are in conflict, contract disputes arise, students have troubles with each other and with the grade their teacher gave them, not to mention special needs children, where mediation is already gaining a strong foothold.
Education is a field with multiple stakeholders and high emotions. This is a great arena for the future growth of mediation. Are you drawn to it? Speak with educators, administrators, and university professors training new teachers to find a fit for your skills.

Healthcare. Nursing shortages; insurance coverage disputes; patient and family relations with the hospital are strained; internal disputes between doctors, nurses, staff and administration abound; and new programs emphasizing transparency and forgiveness are growing. The health care field is ripe for mediators. If your local hospital does not have a mediator on staff, maybe they should. Kaiser Permanente, the large California HMO, is a model example. Health insurers may need to add mediators to their claims department, too, to retain policyholders and providers.

Academics. Just as we say “There is always room for one more peacemaker,” there also is always room for one more teacher of peacemaking skills. Whatever the grade level, teachers and trainers who can deliver mediation training and inspire today’s youth to be tomorrow’s peacemakers will always have a home. Some do it as consultants, marketing their training to public and private schools and universities; others become full-time faculty, adjunct professors and full tenured professors. If this is your passion, the number of dispute resolution programs is expanding exponentially-find one or create one.

Law enforcement. While these positions are often filled by officers who have been trained in mediation skills, law enforcement departments are increasingly hiring mediators to help resolve issues between officers, “the brass” and constituents.

Community mediation. If working hands on with real people is your passion, then opportunities in community mediation may be right for you. Often, governmental funding, grant funding, and even funding from the courts can be available for community mediation programs. While some funding only covers program administrators and staff, occasionally staff mediators may be funded as well. Bringing peace to a community two neighbors at a time may be its own reward.

Faith-based. Because religions generally teach non-violence and peaceful dispute resolution, those involved in conflicts that arise in these arenas usually do all they can to avoid litigation. This is a place where skillful mediation, especially with a mediator who is well-schooled in the religion’s beliefs and in the skills required to mediate effectively in this setting, can thrive. Discussions in this arena generally consist of very different subjects from what a jury would do with their dispute. Mediators interested in reconciliation and forgiveness, rather than just settlement, will enjoy working in this setting.

Group facilitation. While group disputes often turn to mediation after litigation has been filed, these are very different mediations than the typical litigated cases. With multiple and diverse stakeholders and complex and intertwined issues, these are generally long-term projects built around collaboration rather than compromise, and problem solving more than settlement. With increasing pressure for public policy change in areas of the environmental resources and green living, future opportunities for group facilitation will be plentiful. While work in this area requires specific training, including a deeper understanding of group dynamics, cross-cultural issues, and possibly environmental issues, training is available at places such as www.concurinc.com. This can be a nice place for mediators who want to do more than “move insurance money around the table,” as some mediators complain. Public agencies, nonprofit organizations, environmental groups and NGOs often engage in this kind of process.

Settlement counsel.Law firms are increasingly setting up ADR departments and looking for an attorney to lead them in their pursuit of being ADR leaders in their local community. Litigators are also increasingly hiring settlement counsel to assist with mediation advocacy in larger cases, either representing or advising trial counsel and clients on settlement strategy throughout the course of a mediation. For every mediator who has wanted to say, “You’re offering too much,” or, “Don’t drop so fast,” this may be the job for you.

Courts. Many courts are now hiring ADR people, both as staff mediators, such as Bob Rack at the U.S. 6th District Court of Appeals in Cincinnati, and as ADR administrators, such as Julie Bronson, who oversees 25,000 mediations per year at the Los Angeles Superior Court’s ADR Office.

System design. In addition to delivering mediation services, some mediators choose to specialize in ADR system design, helping companies, agencies, courts and other organizations design dispute resolution systems that move through a variety of processes until the dispute is resolved. A working knowledge in dispute resolution systems and design is usually required, but those with advanced degrees in dispute resolution can often find work consulting to organizations in designing efficient and effective dispute resolution procedures.

Robert E.L. Wright is senior counsel at Miller Canfield in Grand Rapids, Mich. His practice has emphasis in alternative dispute resolution and commercial litigation, including bankruptcy. This article originally appeared in Michigan Lawyers Weekly, another Dolan Media publication.

Virginia Lawyers Weekly

Make alternative dispute resolution your day job

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