On Co-Mediation Part VI: Money Talks – Co-Mediation and Billing by Sharon Sutherland

Today’s guest blogger is Sharon Sutherlanda Mediate BC Civil Roster mediator and a committed and experienced mediation mentor.  Sharon has designed and managed practicum programs for Mediate BC, and has mentored mediators in the Court Mediation Practicum, the Child Protection Mediation Practicum, UBC Law’s clinical mediation program, CoRe Conflict Resolution Society mediations, Toronto Small Claims Court, New Brunswick and Northwest Territories’ child protection mediations, and by private agreement in civil and strata disputes.

This is the sixth post in our “On Co-Mediation” series. Read the other posts here:

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

In my last blog post on this topic, I wrote about the various ways in which co-mediators might share fees between each other, taking into consideration the interests each brings to the negotiation.  This post is a continuation of that post with a focus instead on the discussion of fees for co-mediation with clients.  

Negotiating with the clients?

Most senior mediators will have both a repeat client base and a clearly stated fee for their services.  Since clients know in advance what that mediator charges, it may well be unrealistic to ask a repeat client to pay more than usual for a co-mediation arrangement – even where there is a clear advantage to the client to have a second mediator participate.  (I want to emphasize that there will be instances where it truly makes considerable sense from even a repeat client’s perspective to have a co-mediation team – and thus to keep in mind that negotiation of a new fee that includes additional payment for the co-mediator might be entirely realistic.[1])  With new clients and new referral sources, however, the mediator can negotiate a fee that considers the need to share fees with the co-mediator.  That might mean a variation on the hourly rate the mediator would normally charge that might reflect efficiencies that can develop with repeat co-mediation practice, or it might mean charging higher fees to reflect a combination of knowledge and experience that is especially useful and likely to result in faster or more durable agreements.  I will not attempt to enumerate all the interests that might factor into a fee agreement in any given case: I simply want to emphasize that the potential to negotiate a fee that makes sense to everyone in a mentoring arrangement simply requires the application of our usual interest-based negotiation practices.

Alternative billing for mediators

No doubt because of the influence lawyers have had on developing mediation business practices (both as highly influential participants in the selection of mediators and as mediators themselves), mediation has typically mimicked the legal profession’s billing practices and relied upon an hourly fee structure.  The prevalence of the hourly rate in legal practice is shifting these days, and that shift offers an opportunity for mediators to examine their own billing practices to determine the most rational approaches – which might vary from practice area to practice area.  Taking the time to examine one’s own assumptions about billing approaches creates the secondary opportunity to consider alternative billing when co-mediating.  Examining the many approaches to alternative fee structures that are becoming more and more common, and contemplating variations and further alternatives is beyond the scope of this post. Mediators who would like a starting point for identifying possibilities that clients and their counsel already are becoming familiar with might start with the recent article on this topic in The National.  This article emphasizes the importance of working with a client to come up with an approach that makes sense for both client and lawyer.  There is no reason that mediators cannot also enter this same form of discussion, including in the mix of interests the benefits to client and mediator that might flow from co-mediation in some circumstances.  A fee-structure that specifically recognizes co-mediation is a logical step in the evolution of both mediator fees and mentoring arrangements.

Differential billing for division of services – the “firm” model

Despite the degree to which mediator billing has tended to follow lawyers’ billing practices, one aspect of the traditional legal billing model that has seen little use in the mediation world is the use of differently skilled and more or less experienced mediators for different aspects of client work. In other words, mediators tend not to develop firms made up of a range of junior through senior practitioners in order to make effective use of the differences in their billing rates to provide appropriate and cost-effective service to clients.  In a mediation firm model, cases might be divided amongst mediators individually based upon rational billing criteria.  For example, clients with a Small Claims matter might engage the firm knowing that a junior mediator would take primary responsibility for the work, and comfortable that a senior mediator would be mentoring all aspects of the junior’s practice as part of the firm’s internal organization. This just might increase the use of mediation for smaller dollar value claims as “frequent users” call upon the same firms to resolve both large and small claims and are not told that mediation is simply not cost effective in matter with lower monetary value. Any such practice change increases the likelihood that clients will turn to mediation more broadly and to seek mediated solutions for a wider and wider range of their issues.

Co-mediation in this scenario would be a straightforward process benefitting clients, mediators and the firm.  Such a structure would also allow for an exploration of the division of work in ways that we, as solo-practitioners, simply never contemplate, and which might even lead to changes in the way that members of the mediation community frequently assert that mediation is really a second (third/fourth) career rather than something one might aspire to become while completing grade 12 Grad Transitions career planning.  One measure we might look to in judging just how thoroughly mediation has become a part of our conflict resolution thinking is the number of first career mediators that we see successfully enter the practice.[2]  A mediation firm model is one way to ensure that we do create a pathway for first career mediators.

 

[1] Some of the most common reasons for two mediators to be better than one in a specific case are: gender balance (most often discussed in the divorce mediation context, but equally applicable in many contexts in which one or more parties might find it stressful to work with a solo mediator who shares a gender with the “other side”, e.g. workplace harassment, personal injury where the nature and consequences of the injuries can be difficult to discuss with a room full of persons of another gender, some human rights topics); process-expert paired with content-expert where there is no content expert with enough mediation expertise; and very large multi-party mediations where some aspects of the mediation can be divided between mediators (though this is unlikely to occur in most mentoring situations).

[2] [Editor’s Note: An upcoming series on this blog will be an exploration of first careers in ADR: opportunities, challenges, and examples. Keep an eye out for this new series late summer 2015!]

[Editor’s note: Many of the posts in this series refer to the personal experiences of the author. When considering applying to a Mediate BC Roster, please be sure to review the requirements at mediatebc.com.]

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