Imagine something you really, really want, something that would make your life immeasurably better. Now imagine that you can’t find it anywhere. And, when you finally do find it, you’re not 100% sure you can trust the person selling it.
As a business owner, the seller has a duty to make it easy for customers – like you, who can benefit from what they do, to find what they’re looking for and feel confident in their decision to buy.
As a mediator who owns their own practice, you have that same duty.
Unfortunately, many qualified mediators give up on building their practices after a short time, because they hit unexpected challenges and worry they won’t reach the income they desire. Chances are, these mediators just didn’t know how to approach their duty as a seller.
If you want to build a rewarding mediation career, you should take time to learn about the business challenges you will face and how to overcome them.
Although some challenges will depend on personal variables, including location, area of practice, and length of time the practice has been in business, we will discuss some of the most common challenges today.
When you’re just starting out, it can be difficult to be confident in your abilities. But, the only way to build your confidence is through experience. Hang in there and keep going! The more mediations you conduct, the clearer it will become that you really do have the tools to mediate successfully.
The more confidently you can talk about your skills and experience, the easier it will be to convince new clients that you can resolve their dispute. This will help build trust, in turn, making their decision to hire you much easier.
Number of Clients
Almost no one starts a business with a proverbial rolodex filled with clients ready to pay for their services. Like any business owner, mediators need to create a marketing plan to attract new clients to their business.
It’s important to remember that marketing isn’t a one-and-done activity; mediators must constantly engage in marketing activities to remain visible to potential clients.
A good place to start is by identifying your target market and the personal attributes that make you an ideal fit for their specific needs.
Make sure to think about the things you can offer clients that competing mediators can not or do not currently offer. If you only advertise the abilities that are common to all mediators in your specialty, it will not sufficiently reveal what makes you the right choice.
You’ll also need to think about the channels you use to communicate this message. Do you have a website? Are you on social media? Do you use print ads? Do you write a blog?
No matter how you display your skills, the message should be clear and consistent for all of them.
Online visibility is very important. It’s how most people search for the products and services they need. At a minimum, a skilled mediator should have a professional-looking and useful website, and learn how to write an effective mediator profile.
Like a confident attitude, the ability to prove you have put time into your craft through training goes a long way to build trust with potential clients.
But because of the dynamic nature of mediation, it can be hard to quantify sufficient training.
Some states require minimal training, while other states do not mandate training requirements for mediators at all. This, unfortunately, leads to unskilled people calling themselves mediators, and potentially risking their personal reputation and the reputation of mediation in general.
Even mediators who seek out training can find themselves unprepared, since there is no universally accepted standard for training in the United States.
So how do you learn the right skills?
Finding a 40-hour basic mediation training that you trust to provide adequate instruction is a good place to start. This is usually enough to be recognized by the courts as qualified to mediate, if that is the goal, but is really very minimal.
Dispute resolution training providers, colleges, and universities are all resources for more advanced training. You can also find educational and training opportunities at industry conferences and workshops. These types of opportunities are often more agile in their content, allowing them to capture the constantly evolving philosophies in mediation.
Being a relatively new discipline, there are plenty of professionals working in the court system around the country who don’t understand how beneficial mediation can be for individuals involved in a lawsuit.
When supporting entities don’t have confidence in mediation, it can be much harder to convince disputants and their lawyers to take advantage of it.
You can tackle this challenge by being an advocate for mediation in the legal community. Get to know the lawyers and judges in your area, perhaps by holding an open house in your practice. Or, volunteer to give a talk at a conference or meeting for legal professionals.
Be open to talk about the benefits of mediation, and be prepared with concrete examples of those benefits. Put your mediator’s calm and trustworthy demeanor to use by persuasively discussing why mediation is such a promising tool for disputes.
The relationships you build may just change everything!
As we suggested in the opening paragraphs of this article, many mediators give up when they don’t initially see the results they were looking for.
You will face many challenges in every step of your business journey, but the secret to finding success is to seek out trusted advice when you hit a roadblock, then keep plowing through it.
Just keep working, keep marketing, keep learning, and keep communicating, and you will be unstoppable!
Thanks to our many volunteers, February was another good month for SCMA and its members. The Professional Development Groups (PDGs) continue to thrive under the leadership of President-elect Angela Reddock-Wright and Stacey Lisk (Westside), and continued support from leaders such as James Cameron (San Fernando Valley), John Irwin (Pasadena), and Andy Shelby, Marvin Whistler, and Mark Sarni (South Bay). Sayre McNeil has taken the lead in re-forming our Santa Barbara/Ventura group, and Ed Palotta has done the same with Orange County. Plans are under way now to initiate a San Diego group. We hope as a member you have taken advantage of the opportunity to attend these valuable networking sessions.
Our SCMA Education Foundation, Kids Managing Conflict, initiated their plans for 2018. One of their upcoming events include a trip for peer mediators to the Museum of Tolerance. In addition, they are making plans for their first conference of peer mediation programs. Kids Managing Conflict’s website is replete with information about its plans and initiatives; see https://www.kidsmanagingconflict.org/.
February also saw 65 mediators attend a dialogue on voluntary mediator certification at USC Gould School of Law. Presentations by Angela Reddock-Wright, Jason Harper, Barbara Brown, Chris Welch, Adam Ravitch and myself led to a dialogue session with those in attendance. This opportunity for community dialogue and feedback on such an important issue for our field continues to strengthen the initiative. MC3’s efforts will continue to be chronicled on the SCMA website under mediator certification; see https://www.scmediation.org/for-the-public/mediator-certification-program/.
Our friends at the National Conflict Resolution Center (San Diego) hosted our SCMA panel, led by Ana Sambold and Jason Harper, on Non-Traditional and Unexplored Career Paths for Mediators on February 24. Participants attending were excited to meet representatives from fields such as Ombuds and learn about entry paths into those fields. SCMA hopes to announce soon another panel presentation for the Los Angeles area soon.
March continues to be a busy month for SCMA. Another webinar that promises to assist your career, “Using Linkedin to Build Your Mediation Practice,” will feature Board member Mark Lemke. You can register for the webinar at Using Linkedin to Build Your Mediation Practice. The attendees to the February webinar presented by former SCMA President Nikki Tolt appreciated her tips on “Building your Mediation Skills and Practice.” If you missed Nikki’s presentation, but would like to review it, we will be announcing details shortly about how you can access that through the SCMA site.
We appreciate your continued patronage and membership in SCMA and want to continue to provide you with resources and opportunities that help you in your careers. We welcome your continued ideas and suggestions. Have a great month and we will look forward to seeing you at a PDG or other SCMA sponsored event!
The SCMA is excited to announce our new Facebook Group! In an ongoing effort to create a positive community and foster open communication among members, we have a new forum in which members can ask questions, share ideas, post important updates, and network with member colleagues. We will also use it to keep everyone informed of news, announcements, events and more.
This is a “Closed Group” meaning people on Facebook can find and see who’s in it, but only members can see posts.
Because our goal is to create an environment of Mediation and Conflict Resolution Professionals, you will be asked to answer a couple of questions upon requesting to join.
February is a great month for celebrating history, with Presidents Day and Black History Month allowing us to remember so many great Americans. It is also a romantic month, with our American tradition of Valentine’s Day. For many of us, it is time to get over any holiday hangover we may have still had in January and back to the business of peacemaking and/or creating peacemakers.
Thanks to its many volunteers, SCMA has some great programming for its membership planned for February. We launch our new Webinar series for the Friday noon hour, and begin with former SCMA President Nikki Tolt on Friday, February 23rd with her presentation on “Building Your Mediation Skills and Practice”—practical tips for success. For new mediators in our field, or even if you have been mediating for a while and are looking for some extra tips on building a successful practice, this is the webinar for you. Online registration is now available at SCMA 2018 Webinar Series #1; make sure you do not miss this one!
In conjunction with our friends at the National Conflict Resolution Center (NCRC) in San Diego, Board member Ana Sambold takes her highly successful panel on “Non-Traditional and Unexplored Career Paths” to San Diego for a presentation at the NCRC headquarters in San Diego on Saturday, February 24, at 10 a.m. Former SCMA President Jason Harper joins the panel, which is sure to point out a number of opportunities outside of traditional mediation that exist for those of you with conflict resolution skills. You may register for this panel presentation at SCMA/NCRC San Diego Program Registration.
Our community was stunned in January with the sudden passing of our former SCMA President, Joe Markowitz. Many of you highlighted what Joe meant to you in our listserv, and your comments were appreciated by all members of our community. I joined many other former SCMA Presidents and our President-elect, Angela Reddock-Wright, at a beautiful memorial service on January 28. At that service, many of us became acquainted with his family and friends, and part of Joe’s legacy is the joy and peace he brought to everyone with whom he interacted. Joe meant a lot to many of us, and his influence will continue to be felt in the mediation world. For my part, I remember Joe being at a number of the initial meetings of what is now the Mediation Certification Consortium of California (MC3), and talking about creating a “gold standard” for the field. Joe will be in our hearts and minds when we see you at USC Gould School of Law on February 10 to discuss why voluntary mediator certification would be beneficial to our field.
Joe’s legacy included “rolling up his sleeves” and volunteering his time and efforts to the betterment of our community. As I look at the myriad of volunteers who are helping SCMA and MC3, I am mindful of the fact that we could not accomplish anything without everyone pitching in. Thank you for your continued contributions, and I look forward to seeing all of you at one of our upcoming educational events or professional development groups.
I hope all is well. I am writing to update you on our Professional Development Groups (PDGs).
We would like to thank West Los Angeles PDG Leader, Stacey Lisk, for accepting the role of PDG Chairperson for all of our PDG’s. Stacey has picked up the mantle from Mark Lewis who provided great leadership in this role for the past couple of years. Along with our current PDG Group Leaders, Stacey will assist SCMA in thinking through the future growth and expansion of our PDG’s and ensuring that our PDG’s continue to be a value-added benefit of membership in SCMA.
If you are interested in attending a PDG, getting more involved with a PDG, and/or starting a PDG in your local area, please feel free to reach out to Stacey or me, or any of our PDG leaders below. Our current PDG groups and group leaders are as follows:
Pasadena – John Irwin, PDG Leader: firstname.lastname@example.org
San Fernando Valley – James (“Jim”) Cameron, PDG Leader: email@example.com
South Bay Los Angeles – Mark Sarni, Andy Shelby, and Marvin Whistler –
Co-PDG Leaders: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
West Los Angeles – Stacey Lisk, PDG Leader: email@example.com
We also are looking forward to re-igniting our Santa Barbara and San Diego PDG’s in addition to starting PDG’s in Orange County and the Inland Empire.
We look forward to seeing you at a future PDG meeting. Have a great evening and remainder of the week.
Angela J. Reddock-Wright, Esq.
We are delighted to tell you about our launch of new webinar series starting with two new webinars to assist you with building your mediation network and practice. Each webinar will be an hour-long interactive session hosted by an SCMA Special Guest Presenter.
Though all of our sessions will be available to watch on-demand, we hope you’ll join us live. If you do, you’ll have a chance to ask questions of the presenters.
Sign up using the links below. We look forward to talking to you! If you miss these webinars live, you can always watch them on-demand by clicking on the same links and registering.
Building your Skills and Mediation Practice with Nikki Tolt
It is a great honor to start the new year as your President. Your volunteer Board took the time at our December meeting to reflect on the organization as it might be seen through the prism of the mission set forth by its founders in 1991. Seen through that lens, our membership is enjoying an organization that is accomplishing everything that had been hoped for in its original Articles of Incorporation. And yet there is so much more to do, so much that we can do together…from my viewpoint, all it takes is the “sweat equity” of our members engaged in a vision for the success of our mediation field, and we will continue to achieve at a high level.
In those Articles, our founders thought that we should “provide a vehicle to build community and provide encouragement for those involved in and supportive of mediation in Southern California.” Our Professional Development Groups, led by our volunteers including President-elect Angela Reddock-Wright, deserve great credit for hosting these mediator roundtables and providing an avenue for regional networking. Stacey Lisk has volunteered to help Angela with the coordination and continue the fine work of Board members John Irwin and James Cameron, amongst others. Board members Terri Breer and Dale Ordas are leading the charge to expand these networking groups further into Orange and San Diego counties, and with your enthusiasm and help, we look forward to those new groups forming.
But there is so much more in encouraging and supporting mediation! Board Secretary Leslie Kushner leads a committee devoted to public outreach, and with your help, continues to organize our speaking bureau and advocates for mediation. Our sister organization, Kids Managing Conflict/SCMA Education Foundation, led by its new President Sally Patchen, continues to raise money for peer mediation in middle schools and high schools throughout the region.
Our founders also pictured “an organization through which high-quality and cost-effective educational programs could be offered.” SCMA hosted its largest conference ever in October, with the renown William Ury headlining a conference of workshops and panels that is unparalleled in our mediation community. As usual, with your help, SCMA will be continuing to host a number of educational programs throughout this upcoming year, headlined by our Peer Mediation Conference chaired by our former President, Jason Harper, but also including our re-envisioned Employment Institute chaired by SCMA volunteer Samantha Blake, and a newly proposed Family Law Institute chaired by SCMA Board member Terri Breer. Additional seminars, workshops, and even webinars are being planned this year to help our members maintain and add to their skill level in professional development.
Finally, our founders tasked us with providing “a vehicle through which the mediation community could seek to influence the development of the mediation field…” It is in this final vision that your SCMA Board is taking its boldest step…encouraging the development of mediator certification based upon the professional model that has been developed by its sister organization, the Mediator Certification Consortium of California (MC3); see our recently posted position paper (SCMA MC3 Position Paper). While many other fields have organized professionally based certifications as a means of maintaining control of who is defined as a practitioner, it has usually taken a dramatic event or series of events to create the initiative. The recent Los Angeles Superior Court (LASC) request for providers for mediation services for which all mediators without J.D. degrees and even those with J.D.s who have had less than 10 years of practice experience are excluded, may have been such a dramatic event, as many of our members who have been dutifully and successfully mediating litigated cases suddenly found themselves outside the bounds of those defined as “mediators” by LASC.
Please set your calendars for February 10, 2018, from 10 a.m.-noon, as former President Jason Harper, myself, Chris Welch and other Board members from MC3 will detail our plans for a professionally based certification; see the event announcement posted here: SCMA Mediator Certification Program. Seeing our membership thrive and prosper continues to be at the heart of why the Board and others continue to volunteer to lead SCMA. But it will be the “sweat equity” of all volunteers that pushes us forward as a field and a profession. Join us for one of our many events in 2018, and most importantly, if you feel impacted by the new LASC definition of a mediator, join us for the program on January 20…you can make a difference!
As a non-profit, SCMA needs volunteers to continue to advance our field and provide programs and services for our community. We are in the process of forming our 2018 committees and look forward to your contribution. All we ask is that the next time you see a request for volunteers on the listserv or elsewhere, you take just a moment to reflect upon “why not me.” I did…as did so many other volunteers too numerous to mention in this short message…and we hope to have you join us as well.
On October 4, 2017, the Los Angeles County Superior Court (LASC) issued a request for proposals (RFP) for civil mediation services. The RFP offers mediation providers the opportunity to help settle LASC cases in an effort to address LASC’s growing calendar overload. However, the RFP controversially excludes non-attorney mediators and attorney mediators with less than ten years of California Bar membership. This effectively disqualifies a significant number of mediators, many of whom have been successfully settling LASC cases for years. More- over, these restrictions have no basis in research on mediation success, which shows little difference in settlement rates between attorney and non- attorney mediators.
LASC’s RFP is a wake-up call for the mediation community. The RFP is evidence that if we fail to establish our own mediator qualifications, oth- ers will do it for us. And too often, they will do it in a way that is incon- sistent with our shared values and the values of the mediation profession. The RFP confirms the fears that have long existed in mediation circles. For example, in 2006 the San Diego-based National Conflict Resolution Center (NCRC) wrote:
The critical need for [a discussion on mediator qualifications] among those who practice is accentuated by the legitimate fear that if we don’t decide these things for our- selves (in the spirit of mediation, the empowering process that requires accountability and responsibility on the part of our clients), someone else will. We cannot afford an- other ‘surrogate’ profession to set the standards and in- form the consumers. … We believe that mediators should be the ones to establish mediator standards and enforce the guidelines that are essential to practice.
Fortunately, SCMA has not been idle. For several years, SCMA has investigated mediator credentialing through an ad hoc committee. The committee spent over five years listening to the community, evaluating research on the issue, and debating options. In its final report in 2013, the commit- tee wrote:
Whether the practice of mediation should be regulated or credentialed in any way has long been a contentious topic within the ADR community, which has yet to reach consensus on the issue. On the one hand, many practitioners see no compelling need for regulation or certification, as there has been no public outcry for it. … On the other hand, many mediators desire a credential that would be of benefit to themselves and the public. … These mediators favor some sort of credentialing out of interest in promoting and supporting the highest standards for our field and, for some, out of fear that unless we mediators regulate or certify ourselves, someone else will do it for us.
The committee concluded that a system of voluntary mediator certification would benefit both the public and the profession.
The committee’s efforts have led to the formation of a sister organization—the Mediator Certification Consortium of California (MC3)—that is creating a voluntary mediator certification that we hope will become the gold standard for the mediation profession. MC3 certification qualifies mediators based upon their mediation background, relevant education, and demonstrated skills. It requires:
80 hours of mediator education and training;
Performance criteria that includes prior mediation experience;
Live scan (fingerprinting) to ensure that inappropriate persons are not credentialed;
Criteria that require certified mediators to complete continuing education;
Commitment by mediators to both the ABA/AAA/ACR Model Standards of Conduct for Mediators and the California Rules of Court; and
A quality assurance process that will track complaints and, when necessary, discipline certified mediators.
MC3 certification will require that non-attorney mediators take a nuts-and-bolts course on litigation terminology, processes, rules, and procedures, similar to the prior requirement of LASC’s ADR panel. It will also require participating mediators to take the course on mediation ethics contained in the California Rules of Court as it is currently administered by the Administrative Office of the Courts.
LASC’s RFP is a missed opportunity. But it is also a chance for us to come together as mediators and create something better for our courts and our communities, and ultimately, for our profession. And that is an opportunity that we don’t want to miss.
In a hearing on December 1, 2017 lasting one hour beyond the scheduled end time, the California Law Revision Commission (“CLRC”) gave its final approval to the Tentative Recommendation issued in June 2017 to create certain exceptions to mediation confidentiality. Its final approval is subject to the chair and /or vice chair approving further language revisions to proposed Evidence Code Section 1120.5 that were discussed and approved during this four-hour meeting.
At the meeting, the Commissioners took up all of the suggestions and comments set out in Memorandum 2017-61. Initially, it agreed to a minor word change of “professional requirement” to “professional obligation” in proposed Evidence Code section 1120.5(a)(1) to be consistent with other statutes. It then launched into a major discussion lasting approximate ninety minutes whether the exception should apply ONLY to state bar disciplinary proceeding as was suggested at its last meeting. Ultimately, the Commissioners voted NOT to limit the exception to state bar disciplinary proceedings but rather to stay with its original inclination that the exception should apply to (1) a legal malpractice civil action; (2) a fee dispute brought under the Mandatory Fee Arbitration statue; and (3) a state bar disciplinary proceeding. Towards the end of the hearing, the Commissioners voted to include into the exception, a legal malpractice action that is arbitrated rather than filed in court.
One suggestion was to include “fraud” and “breach of fiduciary duty” into the exceptions but the Commissioners declined deciding that the language already in the statute was broad enough to cover these precise claims.
The Commissioners further declined to place into the statute itself language explaining about mediated settlement agreements now found in the Comment section as well as declined any further action to address the possible inconsistent evidentiary issue raised in an action involving both a complaint and cross-complaint. While the exception would apply to the complaint, it would not apply to the cross-complaint. The CLRC voted to leave this issue to the courts to adjudicate.
The CLRC also declined to address the issue of what, if any, impact, a successful malpractice action would have on a prior settlement agreement. Would it unravel the settlement? Again, under the belief that collateral estoppel would not apply, the Commissioners viewed it as a non-issue.
The Commissioners did agree to add language within the statute (Section 1120.5(a)(3)) reciting the same exceptions that now appear in Evidence Code 703.5: that while a mediator is generally incompetent to provide oral and written testimony, this incompetency is removed in matters giving rise to civil and criminal contempt, constitutes a crime, be the subject of investigation by the State Bar or Commission on Judicial Performance; and give rise to disqualification under certain provisions of CCP 170.1. But, the Commissioners declined to add a cross reference to the definition of “writing” as contained in Evidence Code 250 on the basis that such is not usually done.
Perhaps one of the most important issues taken up by the Commissioners was “notice”. When and to whom and how much notice should be given to the other parties to the mediation that one of the exceptions to mediation confidentiality given has been invoked? After much discussion lasting close to an hour, the Commissioners decided that not only would the notice requirement apply to all three categories of exceptions (The draft statute as presently worded requires notice ONLY when a civil action for legal malpractice is filed and NOT to state bar disciplinary actions or mandatory fee arbitration disputes.) but the party instituting one of these three proceedings must provide notice that (1) there is a dispute under the relevant subsection of proposed Evidence Code 1120.5, (2) mediation confidentiality is at issue in that confidential information may be disclosed, and (3) the notice includes a copy of the complaint. Reasonable notice is to be given prior to the invocation of the exception to mediation confidentiality.
Once again, the issue of awarding attorney fees to a mediation participant who is a non-party to the legal malpractice action, mandatory fee arbitration dispute or state bar disciplinary action who moves to protect his/her confidential information was discussed. As before, the Commissioners declined to include any cost shifting provisions, believing that existing statutes can resolve this issue.
The next to the last issue considered had been raised several times but never decided by the CLRC: contractual waivers. While the original legislative mandate in AB 2025 included the consideration of contractual waivers, the CLRC had up to now put aside addressing it. At this hearing, it definitively agreed to prohibit such waivers. The proposed statute will now include a subpart (h): “Any agreement purporting to override this section is null and void.”
Finally, the Commissioners again took up the issue of the possible obligation of either the attorneys or mediators to inform mediation participants about the exception. As on previous occasions, they demurred, declining to make any recommendations on this “informed consent” issue believing that if counsel is involved in a mediation, they have a duty of full disclosure under the California Rules of Professional Responsibility and if the participant is self-representing- the issue does not arise.
So- at a few minutes past 6:00 p.m., the Commissioners voted to approve the Tentative Recommendation subject to the revisions to be made in the proposed statute as just noted and approved by the Chair and/or Vice Chair. By taking the vote at this meeting rather than putting it over to its meeting in February 2018, the Commissioners realized that their Tentative Recommendation would make it into the upcoming legislative session in which all legislative bills must be submitted prior to its next meeting. In short, there would have been a delay of a year in submitting this to the Legislature had they waited until February 2018 to finish up.
To those who are interested in this subject with views one way or the other, I urge you to contact your state legislator.