Written by: Alex Romano
Published: April 2023

Dispute Resolution is a great career choice but transitioning to mediation isn’t as flawless as it seems.

At Matrix Mediation (“Matrix”), we have seen numerous attorneys attempt the transition to mediation without knowing what goes into making a successful practice. From believing common misnomers about the work effort required to failing to financially plan for the transition period, we dare to say we have encountered it all in our seventeen (17) years in operation when it comes to planning for life as a mediator. 

This article navigates through the process of successfully transitioning your practice from litigation to mediation and highlight some key considerations to keep in mind before taking the plunge. 

Evaluating your Finances Before the Transition

One of the most common misconceptions we hear is that the money comes quick as soon as you become a mediator. However, for many, that is not the case. Instead, we have experienced that it takes about one (1) to two (2) years for a mediator’s business to take off from occasional mediations to full time work regardless of their prominence as an experienced trial lawyer or judge.

As such, it is important to evaluate your finances and plan accordingly before transitioning to mediation. This includes (i) evaluating your savings, (ii) budgeting for necessary business expenses, (iii) taking into consideration the timing of when you leave your practice and (iv) considering future life events that might impact your financial plan.

Should I keep practicing and mediate?

We are often asked – can I keep litigating with a mediation practice? Legally and ethically, yes. However, it is important to keep in mind that keeping your practice will lead to a greater likelihood of conflicts of interest. Also, would you trust your secrets with a mediator you may have a case against next month? Here at Matrix we are frequently asked if mediators are still practicing.

Network, Network, Network

When you’re not fully booked you should be spending your time seeking mediation opportunities. This includes reaching out to old classmates and every person you have ever litigated with or against and asking for a chance to mediate their next case. We have time and time again seen that the mediators that take this advice see profound results in the quality and volume of their practices.

Does that mid-week happy hour or Saturday night legal event on your calendar bring you dread? Well, to build an established mediation practice it will now be your full-time job to meet as many people as you can and get your name out. If attending networking events isn’t your style, then consider getting involved with various bar organizations to help you network in a more organic setting.  

The Price is Right

You may an experienced trial attorney, but you’re a new mediator. Consider choosing a price point that encourages new clients to try you out, get a book of business, and then you can set your rate higher. Many new mediators often respond with “I have never looked at how much a mediator charged why should I start low?” To build your business, you have to get business, which starts with offering reasonable rates commensurate to your experience in the field. 

Calling Ahead & Following Up

Not everyone calls ahead, so it will set you apart from the pack.  It provides the attorney with the opportunity to tell the mediator things they might not want to put in writing, can offer valuable insight into the position of each party before mediation occurs and can establish your relationship with a client before the mediation even begins.

Follow-up on impassed cases. The mere fact that you called will keep that case in the forefront and help with an earlier resolution. Although your time is important, consider not charging for follow-up, which helps keep things more fluid. In our experience, if you give a few minutes away for free, it will pay dividends. 

Final Thoughts

Mediation is your new full-time career, not a retirement hobby; Results require effort, focus and perseverance. As clients expect more than they ever have before, it is more important than ever to put in the effort and concentration that clients not only deserve but expect.

Concerned about the competition in the field? Don’t be. Every day we get feedback from practitioners that their favorite mediator is booked, and they are looking for new blood. If you are willing to give your best effort you will find that dispute resolution is a rewarding and satisfying career.

Alex Romano is a Director at Matrix, a full-time mediator, and trainer at Matrix Training Institute. Prior to coming on as a mediator she did over 50 jury trials and has worked at Matrix for 17 years in various capacities. She has an extensive understanding about not only what it takes to be a successful mediator, but the nuts and bolts of how to run a successful mediation practice on a large scale. 

Written by: Kenneth D. Stern 
Published: April 2023

There is a key to resolving cases that should be central to your efforts.   Often, we have a client, or opposing party,  who is so immersed in resentment and anger because of the dispute in which s/he is involved,  that s/he is incapable of addressing the situation which is the focus of the dispute.   Or we have an opposing counsel who postures, instead of discussing the issues.

The most common problem with such situations is that the person unable to focus on the situation to be resolved is  preoccupied with the emotional perception that s/he has been, or might be, outfoxed by the opposition.   Such a situation cries out for you to dip into your bag of interpersonal tactics and heed my favorite definition of all time:  “Diplomacy is the art of letting the other person have your way.”  This begins with explaining that the person’s own self interest is being disserved by not concentrating on what s/he really needs, which is getting the situation to yield what s/he wants.       

If the problematic person is your client, you must pierce the emotional cocoon that your client has woven, by sympathizing with his or her feelings,   then to point out that s/he shares a situation with the opposing party which has to be sensibly resolved.    Help your client to realize that the best way to make the harsh feelings and resentments disappear is to recall the last time your client and the opposing party were dealing with one another in a civil, cooperative way.

Do what you can to bring the client’s focus to that period, and get him or her to acknowledge that they once were able to deal with one another for their mutual benefit.   Then, urge your client to recall what occurred to create the dispute that now exists.  Although it is likely that your client will seek to blame the deterioration of their relationship on the opposing party, point out that the client’s self interest would best be served by resolving the matter, not by prolonging the dispute.

Help your client to identify what actions and concessions by both sides would defuse the anger and resolve the situation.  Urge the client to focus on what should be asked of the opposing side to help resolve the dispute. This will help you to formulate your comments to the other party during the joint opening session, after the mediator concludes his or her remarks and invites the attorneys to describe to the other side how they see the case,  and how they suggest a settlement could be reached. [1]  

If your opposing counsel is a reasonable person interested in settling the case to his client’s satisfaction, you might, prior to the  mediation date, suggest a resolution based upon fostering in both clients the perception you and your client have achieved during your discussions.

If the stubborn person is the opposing party,  your tactics would be shaped by the nature of that party’s attorney.   If the attorney is plagued by the client’s obstinacy and is having difficulty getting the client to address the situation objectively,  you might tell the attorney (regardless of whether it is true) that you had the same problem with your client,  and that you  used with your client the same approach you are suggesting he or she use with his or her client.

Finally, there is the situation where the problematic person is your opposing counsel.  Once in a while, the attorney on the other side is a “hot dog,” whose modus operandi consists of arm waving, posturing, and threatening.   If you can, convince opposing counsel that his/her client will be well-served, and will appreciate the attorney’s work, if a satisfactory solution can be created to allow both parties to put this situation behind them,  and to get on with their lives.  If that doesn’t motivate him or her to foster a settlement, appeal to the attorney’s self interest: stress that a happy client will return with more business, but if the case languishes for months, with attorneys’ fees mounting, the client will not likely return with more business or recommend him to others.

If your efforts do not produce a conciliatory attitude, call the mediator and explain that there’s a problem that you would appreciate his/her addressing at the mediation.   Explain who’s the problem and what you would like the mediator to do, either in his opening statement (if there will be one), or in caucus.  An experienced mediator can do wonders.  (See article, “Recruiting the Mediator as Your Ally,” in the ADR Corner column in the  PBCBA Bulletin of April 2017.)

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Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family, appellate and federal cases.  He also serves as an Arbitrator (AAA approved), and as a Special Magistrate, helping to move cases toward resolution by hearing motions which have been languishing on crowded court dockets.   Judge Stern may be reached at [email protected] or 561-901-4968.

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/.

[1]  When mediating a case, I strongly urge the attorneys to agree to such a joint session, wherein either attorney is urged to speak calmly and respectfully to the other party.  Such a joint session often helps to shorten the time needed for mediation, because it helps to identify the key issues that need to be addressed, and often defuses the anger the opposing parties so often feel toward one another.