Be Your Own Mediator: An Open Letter on Court List and Placement Services

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Written by Guest | June 26th, 2019
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Guest Post by Dr. Christopher W. Smithmyer

I had a friend in college who, during his political campaign, would say "You cannot be a stand out if you only have your hand out." The core value of this saying was that until you learn to stand on your own two feet, you are unable to accomplish what you have set out to do.

More and more, I am seeing the welfare mentality developing in the conflict management community. Programs, providers, and platforms all scramble to be on the court, county, and state lists so that they have the chance of being selected for a panel of mediators. Mediators have learned to hope that they can get on these lists, which results in them merely sitting around hoping to be selected. More often than not, hope is all that they get to do.

Lists are the anathema of a successful business. In our field, many people conflate being on a list with having active clients. While some mediators are quite successful getting cases from lists, we find that mostly these successful mediators have pre-existing connections with the legal community (i.e., former judges, lawyers, or court clerks). The scales of chance are tipped in favor of these mediators, while the remainder of the people on the list hope that they will get the scraps that fall from the lucky mediator's tables.

Hope is not a business model; hope, in the business world, is an opiate — an opiate that keeps professionals in the field docile and compliant while they pay their association, licensure, and certification fees each year. Conflict Management is an unrealized multi-billion dollar industry, and it will not realize its true potential until professionals quit relying on handouts from the "list" providers.

Being dependent on lists

The reason that I am writing this open letter to the field is twofold. First, I have seen the difference in being on a list and doing my own marketing. When I was doing my own marketing, I had a substantial number of cases each month — enough to live quite comfortably on my mediation practice. However, when I shifted to a list mediator, the cases dried up.

This does not mean that the people who provide the list are bad; it is a necessary service that keeps the industry alive in some areas of the country. However, it is our dependence on these lists that is the destructive force. Just like welfare is not bad in society, lists are not bad either. It is when people become dependent on these lists where we see the problem, and the fault of that lies on the person who has become addicted to the handouts, not the person who is giving the handouts.

Developing your own list

The second reason that I am writing this letter is due to business issues I see in the field. Many of you who are reading this know of Brāv. We have operations in eight countries and Brāv ambassadors around the world. Every week, we have mediators come to us and ask us to give them cases — which we do when they are available. However, Brāv is a company that provides conflict management training, consultation, and one of the premier secure digital platforms for conducting online conflict management sessions. When customers come to us, we provide them with education, expertise, and technology to resolve their cases.

Weekly, I field questions from people who are looking to get on our list, my response sometimes ruffles feathers: “Our clients are the mediators who want to provide their clients with excellent service, training, consulting and technology — we expect our clients to be professionals who are developing their own client list.”

Sometimes, when people ask me to explain it, I tell them “We provide a product line. Please think of us as a bike shop, when you go to a bike shop you do not ask them to find you a road to ride your bike on or someone to ride your bike with you. No, you come with your destination and your friends already in mind. We provide a service to professionals, but we cannot be the ones to build their businesses.”

Mediation first arose from a need in the community; there were thousands of problems and very few conflict managers to take care of them. Now, universities and trainers are pumping out thousands of conflict managers each year, but the number of conflicts is not growing as rapidly.  What was a career in the 1980s, when people were desperate for mediators, now finds professionals fighting for cases in the private sector. This means that the novice mediators are being forced to rely on the public sector for cases, which means getting on the lists. As a result, you have thousands of mediators jockeying for hundreds of cases — some of which are already being assigned to the judge's "private list."

Creating your own client list

My solution today is that mediators need to do targeted marketing to make lists obsolete. It is not the local court's job to get you cases; it is your job. Mediation is a career, not a hobby that you can do when you retire to make a little bit of extra money. If you are a young mediator getting started, a mediator in the prime of your career, or a mediator who already has a robust list of clients, you need to have an aggressive marketing strategy. This ensures that your business is a business, not just a waiting game. Here is my advice for each of these categories:

Novice mediators

If you are new to the field, you have to do the grunt work to make things happen. When I started as a mediator, I went every week to the volunteer mediation program at the local courthouse in Jacksonville, Florida. Most weeks, I did three or four small claims cases for free. Free cases do not pay the bills, but they do get the attention of the lawyers and businesses that come to the courthouse to deal with their small claims. I do not know how many cases I received because a lawyer said: "Hey, do you take outside cases?"

Many mediators are so devoted to the handouts from the list that they are afraid to take outside cases. Each time you say yes, you are getting a new potential client who may use you for all their clients. The next thing you should do to increase your client list is to call every law firm in your area. While court lists are hit or miss, a law firm's list is a goldmine. Lawyers are always looking for new mediators because they do not want anyone to accuse them of having a "pet" mediator. If you can get in the rotation of a few major firms, you can build up quite a practice.

Established mediators

Once you have cut your teeth in the market, then it is time to expand your practice. Selfish sole practitioners can have a lucrative practice, but they are a sinkhole in the community. They take in clients and do not give the community anything. If you are going to be a sole practitioner, make sure that you are not selfish. Reach out to local schools and colleges to give a seminar on mediation (or even teach a class). Take the time to allow novice mediators to shadow you on cases (where the client permits). Sometimes it also works to start a firm (which makes more money).

One of the best ways to expand your practice is to sign on with a digital platform. Online platforms allow you to expand your reach across the country and around the world. If you have a firm, you can have novices and interns make calls to small law firms around the country (or even the big law firms) to grow your client list. Whereas the necessities of the law constrict a law firm to a given region, mediators and conflict management professionals are not beholden to these same restrictions. If you can legally practice in an area, this is a potential market for a developing form.

Transitioning mediators

Even if you are nearing retirement, building your client list is still good practice. As mediators transition from working 40 hours a week to 30 hours a week, or from 30 to 20, you still want the firm you have built to be successful. If you are smart you stay on as a partial owner and retire off of the residuals. This means that the more clients you have on your list, the more interns, novices, and journeyman mediators you can have working for your firm.

More cases mean more income for the people working for you and more dividends. This also means that you need to keep the calls going. Once you reach this point, do not stop. The good habits that you built as a novice should stay with you throughout your career so that you can have a successful firm.

List dependent mediators

If you have built your career by being on lists and are scraping by, do not give up your lists. Just expand your practice. Take the time to make sure each lawyer that you talk to gets a copy of your card (which should look professional). Take the time to let them know that you are taking on new clients and ask if you can reach out to their scheduler to get on their list of mediators. It’s best to be aggressive with lawyers, remember they are buying your service. I never market to the parties; I just think it is tacky. Once you have a list of clients, use them to build a better client list.

While this is just advice, it is advice that I hope will help you and the field develop and continue to develop. Even though conflict management is one of the oldest professions in the world, it is a juvenile field in the eyes of the business and legal communities. As a result, we need to mature as a field, quit relying on our parent fields to give us handouts, and create professional standards that maximize ADR use in our communities.

Conflict management is one of the most challenging professions in the world. Each of us is called to be an ambassador of the field, all the while representing our own professional interest. The difference between being a mediator and a person who does mediations is whether you have a list of clients who come to you or whether you go to a list hoping to get clients. The only list that you should rely on is your list, and it is your responsibility to build it up so that it can sustain you. As long as you are waiting to be picked you are like the kid in class who is the last one chosen. Give people a reason to hire you. Always be learning new skills, always be making calls during your downtime, and always, always make sure that you are ready to chat with new people. You never know who could be your next client.

Dr. Christopher W. Smithmyer, LLM is the Vice President of International Affairs at Brāv Online Conflict Management.

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