More and more litigants are choosing mediation as a way to
resolve their disputes rather than following the traditional
litigation route through the courts. While the benefits to the
parties may seem obvious, both emotionally and financially, there
are also benefits to attorneys who develop a mediation practice.
Mediation gives clients another option to consider when deciding
which process to engage in for their particular situation. Being a
mediator also opens up new referral sources for your office since
you can offer to mediate cases for your litigator colleagues, and
your mediator colleagues can refer clients to you who need a "legal
review" of their mediated agreement.
This article explores how attorneys can incorporate mediation
into their practice, and is a summary of the recent MBA program
"How to Become a Mediator and to Incorporate Mediation into Your
Practice."
How and Why To Get Trained as a
Mediator
In order to become a mediator and to be covered by the mediation
confidentiality statute, which protects the disclosure of a
mediator's work product and communications with the parties, the
mediator must comply with M.GL. c. 233, § 23C. Specifically, the
mediation statute requires, among other things, that mediators: 1)
complete 30 hours of mediation training and 2) have either four
years of professional experience as a mediator or be accountable to
a dispute resolution organization that has been in existence for
three years or has been appointed by a judicial or governmental
body. A list of most community mediation programs, some of which
may also provide mediation training, can be found on the
Massachusetts Office of Public Collaboration website at
https://www.umb.edu/mopc/what_we_do/projects.
Mediation training is not only essential for mediators because
it is required under the mediation statute, but also because it
helps practitioners learn to begin to make the shift from being an
advocate to becoming a neutral. As Chuck Doran, executive director
and lead trainer at Mediation Works, Inc., explains, lawyers and
mediators use a different set of skills when working with parties.
"Lawyers are trained to ask questions to which they already know
the answers. Mediators ask questions about what they don't know.
Curiosity is an essential skill of a mediator." Basic mediation
training helps attorneys learn an entirely new set of skills, which
helps them facilitate parties coming to agreement.
How to Incorporate Mediation Into Your Law
Practice
Once trained, there is no one "right way" to begin incorporating
mediation into your law practice. Some areas of law, such as family
law, may be more conducive to mediation while other practitioners,
such as litigators, may find it more difficult to market themselves
as a mediator. Gail Packer, MSW, executive director of Community
Dispute Settlement Center in Cambridge, says, "The reality is that
a mediation career path is not paved. It requires creativity,
ingenuity, and thinking about what area of practice to specialize
in, and to develop a network to help pave the road for one's future
practice." However, there are some general guidelines to think
about as you begin incorporating mediation into your practice.
Attorney Justin Kelsey of Skylark Law and Mediation in
Framingham, suggests that it is difficult to generate business as a
mediator without broadcasting your practice as one that includes
mediation. "Attorneys must actively market themselves as mediators,
in both their firm name and on business cards, in order to bring in
business." Additionally, Kelsey recommends that an attorney may
want to have different intake forms and conference room set-ups for
mediation vs. litigation, because mediation requires a different
environment to meet the parties' needs. "Litigation is focused on
privacy whereas mediation is about openness. As a mediator, the
attorney will want to foster collaboration." He will want to
provide a conducive environment for the parties to work together to
reach a mutually agreeable solution.
There are many professional mediation organizations available to
help new mediators get advanced training, find mentors, and gain
experience, such as CDSC, MWI, and the Massachusetts Bar
Association's Dispute Resolution Section. Moreover, CDCS and MWI,
among other mediation training centers, offer opportunities for new
mediators to gain pro bono experience mediating cases, in a
co-mediation model, including some opportunities in the courts.
Mediation services is an excellent addition to help you grow and
expand your law practice as clients continue to look for more cost
effective and less contentious ways to resolve their disputes. If
you're interested in learning more about incorporating mediation
into your law practice and finding out about other resources, check
out the program "How To Become A Mediator and Incorporate Mediation
Into Your Law Practice" on the MBA's On Demand portal.