Outliine of Lecture to ADR Course UC Davis Law School March 9, 2010

                                                                        By Dave Finch   



I.                   NO CAREER PATH – One doesn’t take a class, complete special training, apprentice to a professional, and start making a living at ADR.


Think of ADR as a potential career.  You can attain it, but only after positioning your self where there will be demand for you equal or better than your competitors.  This is not easy in the current market.  It may improve in the future, but if present conditions persist you will find a very limited demand for your mediation or arbitration services. Because…


A.    Litigation lawyers will not hire a beginner without special expertise


Lawyers are lazy and hope the mediator will help them make their case.  Obviously there are exceptions, but for the most part lawyers want an expert who will a) help them evaluate their own position, and b) help them sell it to the other side.

B.     There are no jobs for junior or apprentice mediators – mediators work alone.


A case can be made for co-mediators and some mediators work that way.  The main resistance to this approach is that the highly skilled and much sought after mediators feel no need for assistance and in fact fear the less skilled co-mediator will distract from or interfere with a progression set in motion by the mediator.


However, as a business model there might be some merit in offering co-mediators.  If the two work well together and have complementary expertise with clearly defined roles to play in the process, and can offer competitive fees, this could catch on as a popular method.  Eg. In a commercial case you might have one mediator with general business law expertise and a co-mediator who brings accounting and tax law expertise.  In a family law case you might have the family law specialist as mediator and a clinical psychologist as co-mediator.


C.     There are some, but not many, paying government positions.


I don’t have specific descriptions here but I have read that increasingly within government agencies mediators are being hired to help with internal conflicts or with citizen complaints.


D.    Private industry offers some opportunity.


As in the case of government agencies large corporations tend to become quite beaurocratic and conflicts develop among employees and executives that can well be handled internally with mediation.  I don’t have data on this, but my impression is that HR departments are showing increasing interest in this.  Also consider that one who is both a lawyer and a trained mediator might make a very good HR department head.


E.     Divorce mediation offers opportunity.


The courts almost universally employ family mediators to facilitate resolution of the matter.  Getting hired by a court may require a showing of extensive experience in family law and family mediation.  But, there is also a market for private family law mediators.  If you know family law and can hold yourself out as having some mediation training and experience, you will get business from the community who will come not by referral from a lawyer but in response to your advertising.   Making a living at this may be an issue because of competition, but

you by-pass the gate-keeping function of the lawyers who will likely look for someone he or she knows, or who has outstanding credentials.


F.      Community mediators are volunteers – by law.  Helps the mediator’s resume.


On of the ways to get experience in mediation is to serve as a volunteer mediator in a community mediation service.  They are always looking for people to volunteer and after a time you will have a resume showing mediation experience in various fields, such as real estate, business and partnership disputes, landlord /tenant and so forth.  But, don’t let yourself be fooled into thinking this is the same as mediating for lawyers in a civil suit.  Typically lawyers expect a much more active and provocative approach from the mediator.  They want mediator input, devil’s advocacy.  Likely to be impatient with brainstorming, or having the mediator tell them to recite what they heard from the other side.


G.    In recent years supply of mediators has far outstripped demand.


This fact presents a huge obstacle to building a career in mediation.  As a process for dispute resolution it has gained wide acceptance and people are drawn to it as a potential career.  They see it as fun, emotionally satisfying, something they feel they are likely to be good at..  All of that is true, but it means a flood of supply not met by demand.  The State of California has contributed mightily to this problem.  Our court system doesn’t give a damn about creating an oversupply of mediators.  The administrators and judges only care that their work load will be reduced and that the cost to the system will be small.  The AOC a couple of years ago started handing out big dollar subsidies to County Courts who set up a formal mediation programs.  The Sacramento court promptly responded with a program in which any attorney with practice experience of five years could sign up to be a mediator and get paid by the court a small fee for each case mediated.  No training or prior education in mediation required.  So hundreds of Sacramento lawyers are now able to call themselves “mediators”.  They have been accepted as a court mediator.  The they know little about it and have limited skills based on experience.

The Court of Appeal – Third District in Sacramento twice a year offers a free 20 hour training to attorneys who agree to serve in at least 4 cases and give the first 4 hours of mediation to the parties for free.  After 4 hours the mediator can charge his regular hourly rate up to $300 per hour.  I attended their first training and there were over 40 trainees.  I hear that subsequent trainings have also been well attended.   I participated as an assistant to the trainer in a 40 hour training of state ALJ’s, paid for by the State.  There were at least 40 in the training who have now in addition to their work as ALJs can offer mediation services. Some of these trainees were from my area and now compete with me in the small market of Nevada County.  There will always be the exceptionally talented person who will rise to the top in mediation, but its kind of like being a singer with a beautiful voice – the competition is so great that finding a way to make a living at it is very tricky.

II.                Barriers to entry

A.    Multiple meanings of “mediation”.


A fact of life in civil dispute mediation is that mediation means different things to different people and the demand for mediators is divided among the two types of mediators one providing much more demand than the other.  That would be the evaluative type.  It is unfortunate, but the employment of mediators in civil litigation cases grew out of the settlement conferencing sponsored by the courts starting back in the 60’s and 70’s.  The model there was that you would come to the courthouse a week or two before trial and a judge would sit down with the parties and arm twist until one side or both cave in and met somewhere in the middle and avoided trial.  This system still in use today is simply primitive as the judge’s agenda must certainly influence his or her evaluation a lot more parties get screwed than they realize.  Then the courts began to recruit attorneys to conduct the settlement conferences.  I probably served as judge pro tem in over 200 such conferences.  And we used the same techniques as the judges did, twisting arms and telling the parties what they ought to think in order to get the case settled.  3 advocates instead of 2.  As ADR came into vogue and more and the demand for mediation began to take hold, the supply of mediators was largely filled from those who had experience as settlement judges pro tem, like me.  Many of us took the basic 40 hour training and got the religion of facilitative mediation in which the mediator remains strictly neutral and does not arm twist or evaluate.  Too bad for us, that is not where the action was.  Attorneys more often want a mediator to tell them what to do and to be able to say to the client, the mediator (not I) thinks you are being unreasonable.  Insurance companies who are sure they know the value of the case tend to want experienced lawyer mediators who will tell the dummy plaintiff’s lawyer what the case is worth and not mess around with active listening and the like.


B.     Lawyer agendas/Lawyers as gatekeepers


It is also true that lawyer attitude often gets in the way of choosing mediation.  A lawyer may be reluctant to suggest mediation fearing that the other side will interpret that as a sign of weakness.  If both attorneys think that way it won’t happen.  A lawyer may discourage mediation out of selfish reasons.  A lawyer may have trouble finding time to prepare for mediation and so put it off.


C.     Choice requires consent of both parties.


Getting a mediation assignment means you have to be attractive to both sides.  That can be difficult, especially if you have already served one of the attorneys on a couple of previous cases, or one of the attorneys doesn’t like your non-evaluative style of mediation, or one of them will only accept a mediator he knows he can count on to help him out.


D.    Lack of public awareness


One possible market slowly developing is commercial mediation between parties in conflict who have not retained attorneys but want to see if they can get resolution without incurring that expense.  Next week I will mediate a dispute between a civil engineer and a surveyor over the question of whether the subcontract between them was adequately performed.  No attorneys.  But, this is rare.  The public has not yet become aware of what mediation is and why it works.  Hopefully this will change over time.


E.     Mediator selection preferences – Eg. Bias toward retired judges.


We have touched on this in the context of mediation styles.  But there is also the perception by attorneys that their clients will be happier with someone as mediator who has highly visible credentials.  Practically every retired judge goes into mediation to supplement his or her retirement income.  Retired attorneys such as I have a hard time competing.  Let me read an email exchange with a colleague of mine.  (Finch and Malovos). 


F.      Specialization – Perception of importance of subject matter expertise.


A typical question posed by attorneys calling me because someone suggested me as a mediator is the extent to which my law practice involved a particular subject area eg. Employment law.  I did very little employment law as a lawyer, but have mediated a fair number with about a 100% settlement record.  But, that is not enough for some.  Some will want an employment law specialist.  Does that make sense?  I frankly don’t know, although I do know that an experienced mediator can quickly adapt to the narrow issues of a particular case though she hasn’t litigated that particular issue before.

Still that is what you are up against.



G.    Organizational structures – JAMS, JARS and American Arb. Association


There is no open enrollment in these organizations and each has relatively few positions.  These are usually filled by retired judges and highly experienced attorneys.  They advertise expensively, provide impressive conference rooms in prestigious office towers and do a lot of PR.  Hard to compete with these guys.


H.    Conflicts of interest


If you are good friends with a litigation attorney or have mediated two or three times for him or her, the opposing counsel will not feel comfortable with your serving.  In a small community this can be a recurring problem as I have found in Nevada County.


III.             All of above are true for arbitration as well.

A.    Judicial arbitration


Non-binding court directed arbitration

Good way to get experience

Attorneys will not choose you if they do not think you adequately experienced


B.     Attorney fee arbitration


No pay but a good experience builder.

Voluntary service usually accepted by the parties


C.     Commercial arbitration


Here you have all the barriers to entry that you have with mediation.


D.    Collective bargaining arbitration


This will be open to well experience labor lawyers and union representatives.


IV.             What to do?

A.    Stay interested and watch for opportunity

B.     Develop experience in handling disputes as an advocate


C.     Network through bar associations and other lawyer groups


When I moved from the San Jose area to the foothills I knew that I would not make a living at mediation, but I reasoned that I might come close through networking and that was right.  I became active in NCBA, took the initiative to form an ADR section, and gave MCLE presentations.  I also was instrumental in setting up the community mediation service known as Conflict Resolution Center of Nevada County.  I began to get mediation assignments – doing about as many as I cared to until 2008 and the recession.  Zero.  Then a popular judge retired.


D.    Develop excellent negotiating skills


Nothing commands respect more than a skillful negotiator who sells his case with facts and reason, with no bullying or BSing.


E.     Do volunteer mediation and arbitration

F.      Get on various panels such as the Post Office, Department of Insurance, court panels, real estate professionals


G.    Find allies in fields that employ mediators. Eg. Insurance industry.



H.    Location makes a difference


If you are serious about an ADR career it will greatly increase your chances if you go to work in a large firm in a densely populated urban area.  You will have lot’s of competition but quality rises to the top and lawyers looking for mediators will look at you more favorably than the hundreds who have little training, experience or litigation and negotiation moxy.