Mediation (Trial) By Fire
I remember my first mediation like it was yesterday. I was a third-year law student working in my law school’s mediation clinic. After a semester of mediation training and role-playing, I was assigned an employment law mediation. I arrived armed with mediation skills, copies of relevant employment law statutes, and an assortment of delicious protein bars. I was prepared – or so I thought. Within the first five minutes of the mediation, one party aggressively threw a heavy binder across the boardroom table at the other party. I was shocked. An uncomfortable silence filled the air. I did not know what to do. All I could think was: Why did this not happen in any of my role plays? Did I skip a chapter in my mediation skills handbook? Protein bar, anyone? Luckily, my experienced co-mediator jumped in and helped me get the mediation back on track. We separated the parties into breakout rooms and began a successful shuttle mediation. Crisis averted.
I realized at some point before law school that I wanted to pursue my first career in mediation. After completing mediation training, I was faced with a challenge familiar to new mediators: How do I gain experience in mediation without having experience in mediation? Fortunately, I discovered that this challenge can be overcome with creativity, resourcefulness, and determination. Sharon Sutherland, the curator of this blog series on First Careers in ADR, asked me to write about how I bridged the gap between mediation training and practice.
1. Work at a Mediation Clinic
One of my goals in law school was to gain practical experience in mediation. Besides joining my dispute resolution board and participating in mediation competitions, I worked at my law school’s mediation clinic. Similar to working at a volunteer community clinic, I was able to gain real-world experience in a structured mediation program. My professor guided me through each stage of the mediation process including pre-mediation, co-mediation, and drafting agreements. Since the mediation clinic provided me with mediation referrals, professional liability insurance, and mediation forms, I was able to concentrate primarily on skill development. Moreover, working at the mediation clinic enriched my law school experience. I felt a sense of camaraderie working with other law students who shared my interest in dispute resolution. After completing my work at the mediation clinic, I received a professional reference which was valuable for obtaining mediation jobs and certifications.
2. Observe Mediations
After graduating law school, I initially gained experience by observing mediations. I arranged these opportunities through professional connections or simply by cold-calling mediators. Fortunately, I found that mediators, lawyers, and clients were supportive of my requests to gain entry into their boardrooms. I observed a variety of mediations with a variety of styles of mediators. For example, I was able to compare facilitative and evaluative mediation techniques. During each mediation, I job shadowed the mediator including shuttling back and forth between rooms. I carried a note pad to document effective mediation techniques and to practice tracking terms of the agreement. After each mediation, I conducted a debrief session with the mediator to review and assess what transpired during the mediation. This was my favorite part of the day because I gained valuable insight from the mediator (and found out what he or she really thought). I felt a sense of community while observing mediations since the mediators were generous with their time and went out of their way to provide me with a supportive learning environment. By observing mediations, I obtained a unique perspective and a comprehensive overview of the mediation process. I was also provided with an opportunity to start to consider the style of mediator I wanted to become and the type of mediation process I wanted to utilize in my practice.
3. Work at a Mediation Organization
I gained experience by working as a Manager at Mediate BC where I co-developed the Family Mediation Program, an innovative program that provides improved provincial access to mediation services for families and mediation training for mediators. As a new mediator, I found that working at a mediation organization was a valuable learning experience. I gained insight into many aspects of the mediation process including pre-mediation orientations, screening for safety and appropriateness of mediation, mediation forms, and drafting agreements. I also acquired a breadth of knowledge about mediation services offered throughout the province – which is helpful information for mediation clients. During the implementation of the Family Mediation Program, I helped provide mediation support to lead mediators and trainees. As a result, I acquired a deeper understanding of mediation while working in a training capacity with other new mediators. An additional benefit to working at a mediation organization was that I acquired business contacts and started to build my reputation in the mediation community.
[Curator’s Note: Many mediation programs require part-time office assistance, and even where the job seems largely administrative, the work can be incredibly useful in developing greater fluency in speaking about mediation to potential clients, understanding the business-side of practice, and making connections. These administrative skills may well make a new mediator more valuable as a co-mediator (as Robert mentions in the next section).]
4. Co-mediate with an Experienced Mediator
Due to the complexities of mediation, I realized that I needed to gain extensive experience under the supervision of an experienced mediator. Therefore, I designed an independent practicum and became a certified mediator by completing many of the required co-mediation hours at an experienced mediator’s business. Considering the drawbacks of co-mediation for experienced mediators (including fee splitting, liability risk, and training responsibilities), I wanted to provide value to the experienced mediator’s business to create a mutually beneficial business relationship. I provided value to the experienced mediator’s business by sourcing mediation referrals, coordinating mediations and managing cases, conducting pre-mediation orientations, updating mediation forms and technology, tracking mediation terms and drafting agreements, and contributing to marketing and social media.
Besides earning mediation fees, I received many benefits through co-mediating with an experienced mediator.
- First, I was able to gain valuable hands-on experience in a variety of mediations. As mediations can be unpredictable, emotional, and complex, I acquired a breadth of experience that prepared me for future mediations.
- Second, I was able to practice my mediation skills on real cases under the supervision of an experienced mediator. I found that practicing my mediation skills in a safe training environment (and receiving personalized feedback during debriefing sessions) allowed me to build confidence, manage the emotional climate and power imbalances, and balance numerous moving parts during the mediation process. It also allowed me to gradually expand my role as a mediator and develop my mediation style. As a new mediator, I discovered that taking an active role in mediation demonstrated confidence to lawyers and clients which helped counteract any negative perceptions that they may have of inexperienced mediators.
- Third, I was able to gain experience in every stage of the mediation process and every aspect of running a mediation business including case management, coordinating mediations, pre-mediation orientations, screening for safety and appropriateness of mediation, collecting fees, drafting agreements, and marketing and social media.
- Fourth, I was provided with the opportunity to meet potential referral sources – lawyers and clients. During these co-mediations, I learned the importance of networking in building a successful practice. (For more information about co-mediation, please read Mediate BC’s blog series On Co-Mediation.)
5. Join a Mediation Practice Group
By joining a mediation practice group, I was able to acquire valuable insight from professionals with a variety of backgrounds including lawyers, therapists, and financial advisors. Similar to joining a listserv, I gained experience in mediation through group discussion of real cases and analysis of specific mediation issues. Often, I would seek input from the mediation practice group on challenging cases that I experienced as a mediator. Furthermore, I found that joining a mediation practice group was a valuable networking opportunity because it allowed me to develop business relationships with other dispute resolution professionals.
[Editor’s Note: There are a wide range of formal and informal, in-person and online mediation practice groups. You may wish to consider joining the Victoria or Vancouver Mediator Lounges, or set up a local Mediator Lounge for your area. In addition to the professional development opportunities Mediate BC provides, the upcoming ADRIC National Conference, Family Mediation Canada 30th Anniversary Conference or CLE’s Share the Land conference provide opportunities to discuss (and form) practice groups. CoRe Conflict Resolution Society also holds monthly events in-person or via livestream. In short, there’s no shortage of options and opportunities!]
By outlining the ways that I bridged the gap between mediation training and practice, I hope that I have provided some insight for new mediators on how to gain the experience necessary to mediate complex legal disputes and build a successful practice. Since I believe that mediation will continue to grow in popularity, I encourage new mediators to take advantage of these opportunities and continue to find a variety of creative ways to gain experience in mediation.
Guest blogger Rob Finlay earned his law degree from the Seattle University School of Law before joining Mediate BC where he co-developed the Family Mediation Services and Family Regional Mentoring Program (now revised as the Family Mediation Program). Rob is active as a mediator with Finlay Counselling & Mediation Services in New Westminister.
Photo (gif): Jason Bateman & Julia Louie-Dreyfus, Arrested Development; Justice is Blind via GIPHY