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Building Your Mediation Practice: March 2009
No Bailouts - Retool Your Intake And Convening Process To Survive (And Even Prosper) During Troubling Financial Times
By Forrest "Woody" Mosten
This (and every) recession affects everyone - we are not immune. While financial hard times produce stress and conflict leading to hardship and conflicts, people cannot afford to adequately fund litigation or consensual dispute resolution to try and remedy these disputes. So, not only are law firms laying off employees and cutting down perks, but dispute resolution professionals must find ways to survive this societal financial challenge.
While there is no magic pill, this article will explore several strategies that might help you survive this downturn and prepare for many years of future profitability.
Don't Consider Going Back or Quitting
Management, resolution, and prevention of conflict are services that are necessary and highly valued by consumers---in all economic times. You have invested considerable capital, time, and energy to enter the field of Dispute Resolution and leave your former day job. Just as many investors panic and divert from their investment strategy, so do some dispute resolution professionals. Hang in there! Rather than going back to litigation or working in an unfulfilling job that you left after considerable thought, reaffirm your commitment as a peacemaker. This reaffirmation and focus alone may be your guiding path through this downturn.
In addition, cutting back generally may mean eschewing litigation in favor of mediation, collaborative law, unbundling, and other innovative and cost saving consensual processes. While some businesses suffer, many mediators find an increase in clients who may engage us because they see no other realistic alternative. Whatever the motivation (even that mediation is not the parties' or lawyers' first choice), you must be ready to take advantage of this opportunity.
I am assuming that you have probably sliced your expenses to meet the downturn. If this reduction of outflow is in your marketing and networking, your flow of new clients can be affected which can make a bad situation even worse. If you must trim expenses, try to do so in the areas of management, employee benefits, and entertainment rather than in ways that might affect the acquisition of new business.
Capturing a higher percentages of new client calls and turning them into paid engagements might be your best strategy. If you have been converting 60% of your inquiry calls/emails to opened cases and can increase your conversion rate to 80%, generating approximately 33% greater revenue that can make the difference for your survival. Here are some intake strategies to consider:
Re-Assess Who Should Handle Calls
If you have a Conflict Resolution Assistant or Case Manager to take incoming calls, make sure that your agent/surrogate is fully trained and knowledgeable in your services, availability, flexibility, and fees. I highly recommend sending your assistant/case manager to a conflict resolution training course to properly educate lawyers and clients who call. You should also simulate and role play caller's questions and concerns so that your assistant can be properly prepared to handle calls.
During these hard times when every potential client counts even more, you might consider handling all these calls yourself. While it takes time, you are your best salesperson and an incoming call is your hottest marketing target. Spending an extra 15 minutes on the phone might make the difference in motivating the caller to use your services as well as help you understand concerns that can contribute to successful resolution, should you be retained. Even if you are a member of a Mediator Provider Organization or Panel, you might offer to handle incoming calls to make sure that potential cases come in----and come to you.
Reduce Fees:
When times are tough, consumers know that they might obtain quality providers for bargain prices. This is true for five star restaurants, luxury department stores, and conflict resolution professionals. Consider lowering your hourly rate to reduce price shopping and comparisons---some clients that ignored rate differences a year ago may now have more price resistance. Do not worry about lowering your image or forcing yourself into capping your fees in the future. Your primary strategy should be to keep your case roster full and revenue flowing for the rest of 2009. Clients and referral sources will be impressed at getting your high quality professionalism at recession-bargain prices and will continue to use you as your fees rise in a recovered economy.
Follow-Up Quickly: Use Email and Web Site Follow Up Rather Than Expensive Glossy Brochures or Snail Mail
During these times, client and referral source anxiety can be heightened. Otherwise deliberative and careful decision making can give way to impetuous impulse choices. If there is a crisis, clients and their lawyers want help--- and they want it yesterday.
In addition to calling back promptly (consider a one hour time rule), once you make contact send out your bios, office procedures and a customized letter via email. Your demonstration of prompt follow through may be the impressive variable that gets you the job.
Provide Tangible Consumer Benefits When Parties and Lawyers Come In
This is your opportunity to buff up your office: make sure that you maximize a customer-friendly approach.
1. Instead of the Wall Street Journal or Field and Stream, have consumer oriented dispute resolution brochures and materials in your waiting room. My mentor, Professor Louis M. Brown (1909-1996) used to say: "Client Waiting Time Should be Client Learning Time."
2. Even better, now is the time to make your office a consumer classroom by establishing a client library with books, DVD's, and computer access for visiting lawyers and clients to do their work. See my 2008 article on client libraries on the Section's Website. http://meetings.abanet.org/webupload/commupload/DR030700/sitesofinterest_files/Practice_Development_March_08_Mosten.pdf
3. Consider putting in a visual monitor near your (round) mediation table so that parties and lawyers can follow your drafting on their own screens. Just like at the dentists who provide easy to follow visual images, clients like to be involved in their own care.
4. Mediate for Food
Consider two new meal strategies. Waive your hourly fee to meet with lawyers or parties for breakfast, lunch or dinner. On the other side, provide a free lunch to all parties and counsel who work through the lunch hour. They may not remember your brilliance - they might remember your generous buffet - it also helps promote collaboration as parties who break bread together rarely increase their negative perceptions or conflict.
Conclusion
We are all trained to know that a crisis can be an opportunity. While solid settlement agreements are your best marketing in any economic times, consider instituting some of the tips in this article during 2009---you might continue them long after the Dow returns to 10,000 and beyond.
Forrest (Woody) Mosten is a Mediator and Collaborative Attorney in Los Angeles. Mosten is a 2009 Sander Lecturer and Chair of the DR Section's Lawyer as Problem Solver Committee and Former Chair of the Practice Development Committee. He is author of Mediation Career Guide and his new book, Collaborative Divorce Handbook shall be released this summer by Jossey Bass. Mosten can be reached at www.MostenMediation.com
Building Your Mediation Practice: February 2009
Working with a Business Coach
By Diana Mercer and Alicia Marie Fruin
When I started using a business coach 3 years ago, I secretly thought that maybe I wasn't cut out to be an entrepreneur and maybe it was time to get a day job. I was coming off the worst month ever in my business 8 year history.
What I learned is that only, a small percentage of professionals will ever get a coach. Coaching is for people who are already successful, reasonably adjusted and happy. Coaching is about what's possible versus what's wrong. The simple act of getting a coach set me apart from my competition.
What does a coach do? "What's a business coach?" you ask? A business coach engages and facilitates focused dialogue. Coaches challenge, inquire, provoke, cajole, inspire, offer support and collaborate with our clients on their business issues. Occasionally coaches give advice and consult a client when it is an area of that coach's expertise. Most of the time however, it is not about the coach's wisdom. It is about the client's wisdom. Coaches believe that the client has the answer.
What qualifications should I look for?
Four things:
- Experience as a coach: Look for someone who supports themselves through coaching. If you want a business coach, pay attention to how they run their business as well. Coaching is a communication skill set for example; listening fully, being present, mirroring language and tone, attention to what isn't being said, ability to be silent, ability to be direct, ability to be "edgy", strategy skills, planning skills, accountability skills. Someone may have the heart of a coach, e.g., love for people, teaching, and language, yet practice and training is what makes the difference.
- Do they have a coach? Coaching isn't about what the coach knows. A good coach is someone who is a lifelong learner who values being supported and being accountable. Why wouldn't a coach have a coach? Is the coach you are interviewing "a know it all" or are they curious?
- Training as a coach by an International Coaching Federation (ICF, http://www.coachfederation.org/ICF) accredited school as well as other related training like neuro-linguistic programming (NLP) or other types of language training.
- Look for certifications and associations - W.A.B.C. (World Association of Business Coaches, http://www.wabccoaches.com) screens all applicants. They verify the coach's return on investment (R.O.I.) with five or more clients, verify credentials and education and even do background checks. International Coaching Federation (ICF) lets anyone be a member; look for a coach with Professional Certified Coach (PCC) certification, as the PCC certification is rigorous. http://www.coachfederation.org/ICF/For+Current+Members/Credentialing/Become+Credentialed/PCC
What was the result?
Thanks to my coach, I think differently about how I run my business. I'm no longer alone as I analyze marketing strategies, new business opportunities and financial decisions and I'm able to spot new opportunities which I'd never have recognized a year ago.
What a relief to have some direction based on what I've assessed as internal and external strengths and weaknesses, threats and opportunities. Prior to using a coach, I had a lot of ideas about what might be good projects and lots of marketing ideas, but now I know which of the ideas are most important to do first, and everything else has really fallen into place. My coach has helped me prioritize, know where my money should be spent, and where I need to be spending my time.
My business revenues grew by 80% from 2007 to 2008. Although it was my hard work that made the numbers happen, because of my coach I was able to concentrate my efforts where they made the most impact. I don't have to struggle on my own anymore because I have someone who can help me evaluate decisions and weigh the pros and cons.
I've worked with several coaches in the past. Each coach has been helpful in a different way. I'm currently working with Alicia Marie Fruin, the co-author of this article, through the Coach Connection, http://www.findyourcoach.com. It's a telephone relationship (although I've met Alicia in person) but I've also worked with coaches in person. Local coaches can help you with specific questions about your local marketplace. I've changed coaches only because I've changed my focus as the years have gone passed. Working with different coaches gives you each coach's different approach and perspective.
About the authors: Diana Mercer is the founder of Peace Talks Mediation Services (www.peace-talks.com) and the co-author of Your Divorce Advisor (Fireside 2001). Alicia Marie Fruin is a PCC certified coach with Profit Consulting www.profitconsultingco.com, coaching@profitconsultingco.com
Building Your Mediation Practice: January 2009
Recession Advice for Mediators
By Lee Jay Berman
While many believe that mediation is a recession-proof business, the truth is that a difficult economy slows every business and practice as people have less money to pay for things. When a mediation practice slows, there are three things that mediators can do to make productive use of increased down time. They can increase their marketing efforts (attend more networking events, update websites, etc.), improve or update the administrative infrastructure of their practices, and they can hone their skills.
Continued training for mediators is critical only to those mediators who want continued success. The marketplace is fickle, and mediators who continue to grow and add new tools to their toolboxes thrive, while those who plateau find their practices ebbing. Users of mediation services - litigators, adjusters, house counsel, executives - become disinterested if they think that they know all of a mediator's tricks. Mediators must stay fresh and grow or be left behind. This is the reason for many mediator panels and organizations requiring minimum continuing mediator education (CME) for their members. But even absent such a requirement, each mediator should have such a goal or requirement for themselves.
Just as lawyers don't know everything about the practice of law after law school and doctors don't know everything about the practice of medicine after medical school, mediators don't know everything about being masterful mediators after a 40-hour course or even after a master's degree.
The start of a new year is a good time for every mediator to take an honest inventory of their strengths and weaknesses. Those who used post-mediation evaluations should revisit them to see what clients are telling them, and the mediations that ended without resolution should be contemplated (see "Impasse is a Fallacy" at www.mediationtools.com/articles/impasse.html).
The first question might be, "What do you wish your mediation training had included?" I recently asked this question on the International Arbitrators and Mediators Listserve (http://groups.yahoo.com/group/ArbitratorsAndMediators) and invite readers here to add to the ongoing list.
The second question might be, "If I could add one new tool to my repertoire, what would it be?" And the third question might be, "Who would I like to study with to learn some new tools?"
In founding the new American Institute of Mediation, I spent a lot of time discussing these issues with our other core faculty members (Erica Fox, Ken Cloke, Jim Melamed, Woody Mosten, Doug Noll, and Mel Rubin), and decided that as we were building this new training institute from the ground up, we might rethink how training is done. Mediators may want to look at their own training experience in this way in deciding what metaphorical muscles need building or toning.
Back to fundamentals
As mediation training has grown in the academic settings, and more private mediators seek out their training there, rather than community mediation programs, the experience has become more like academic instruction than hands-on training. With this shift, the emphasis on core skills such as listening deeply, skillful reframing and maintaining a balance between inquiry and advocacy has been substantially reduced. These skills are a mediator's real secret weapons. Even experienced mediators can get into a rut after a while, focusing on thinking about how to solve a problem on an intellectual level, that dialogue becomes more like debate. A workshop that emphasizes the core fundamentals upon which mediators rely can impact a mediator's practice immediately.
Advanced Skills
It is often said that we don't know what we don't know. What better way to find out than to take a great advanced skills course? But for really new skills, stretch outside of your box and take a course from someone whose background and style are completely different from yours. Unless, of course, you want to get better at doing what you already know.
Specialization Skills
When the market is quiet, it is a great time to brush up on an area of law that has not been an emphasis for you to this point. Investigate legal updates in employment law, intellectual property law, family law, real property, lending and land use law, professional malpractice, construction, and any area of law that might be a logical next step. In addition to the substantive knowledge, consider seeking out mediation courses that specialize, in order to learn insights into effective mediation tools in those areas, usually taught by mediators experienced in that niche.
The Business of Mediation
Nobody likes to market and network. But it still beats accounting, budgeting and projecting any day. When was the last time you had a workshop on building your practice or looked into a tool like the Mediator's Start Kit or Woody Mosten's Mediation Career Guide to help streamline the paperwork and correspondence that a practice requires? A mediation practice is a business and it must be treated as one. The truth is that many mediators today have moved laterally from law, psychology or other fields where business management wasn't necessarily a priority in the degree track. Good business people say that it's not how much you make, but how much you bring home that counts.
Deeper Learning
If you always wanted to learn more about the psychology of conflict, reading body language, neuro-science of the brain, neuro-linguistic programming, heart-mind coherence, connecting wisdom traditions to conflict resolution or any other deeper learning, this is a great time for that. What makes mediators truly masterful is understanding what is going on behind the curtain for the people at the table. Reading the non-verbal signs that people are offering gives a mediator an insight that cannot be measured. Wouldn't you want to know more about what people are really thinking and feeling?
Work on You
I have told the professionals who study with me for years that the people at the table are making up their minds about you as you are introducing the process to them. Whether in joint session or private sessions, while you're covering confidentiality and your role as the mediator, they are sizing you up: Is she smart enough? Is he compassionate enough? Is he old enough? Does she like me? Why does he seem so stiff? Can I trust her if I tell her the truth? What a mediator brings into the room with them, from self-confidence, temperament, body language, voice, presence and energy affects what participants think of the mediator, it affects what information the mediator does and does not get to hear, it affects the effort they put into the session, and it affects their optimism about getting a resolution. Most of what a mediator brings into the room is unconscious. Masterful mediators meditate or do something to cleanse themselves before walking into a mediation. Learning more about one's self and working on one's energy and temperament can send a very different tone for the day, and often bring about a completely different path for the day's events.
In the end, the marketplace for mediation is a competitive one. Asking attorneys or clients why they picked a certain mediator over the others, the answers are often mumbled. The primary answer in commercial mediation is because that mediator settled the last case. The nuances listed above are what makes the difference between settling 90% or more as opposed to 75% of the time.
In family law, the answers lean more to the experience and the mediator's temperament. Those answers lie above, too.
Here's wishing you all a very happy new year, with lots of successful resolutions, and hoping you will take the time to carve out some time for you ? to grow and develop further and add some tools to that toolbox. As the great UCLA basketball coach John Wooden once said, "It's what you learn after you know it all that counts."
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Lee Jay Berman is President of the new American Institute of Mediation based in Los Angeles and author of the Mediator's Starter Kit. He began as a full-time mediator in 1994 and has successfully mediated over 1,300 cases. He is a Fellow in the International Academy of Mediators and a Diplomat with the California Academy of Distinguished Neutrals and The Daily Journal named him one of California's 2008 Top Neutrals. He is Director of the "Mediating the Litigated Case" program at Pepperdine's Straus Institute in Malibu and was national chair of the Training Committee for the ABA's Section on Dispute Resolution from 2003-2007. He can be reached at leejay@mediationtools.com.
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