On Co-Mediation Part VII: The Child Protection Co-Mediation Pilot Project

This is the final 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

Through most of this series, posts have focused on individual co-mediation experiences, personal experiences of mediators who commonly mentor newer mediators and the business benefits and opportunities co-mediation may afford. What about from a larger, program perspective? Between May 2011 and March 2012 Mediate BC and the Child Protection Mediation Program operated a joint Child Protection Co-Mediation Pilot Project[1]. Colleen Getz of C.A. Walker & Associates produced an Outcome Assessment of this pilot project.

The project had three main objectives:

  • To provide professional development and practice support for child protection mediators
  • To increase internal capacity of the Child Protection Mediation Program (CPMP) to deliver culturally relevant mediation services through mediators on the Child Protection Mediation Roster
  • To design, develop, and provide opportunities to explore the effectiveness of a new model of mediation service delivery in child protection mediation.

A brief note about the process is probably important, as the project differs from how a private practice might engage in co-mediation.

Interested child protection mediators identified areas of interest for professional development through the co-mediation opportunity. Mediate BC received mediation referrals from various sources throughout the province and tried to match co-mediators by area of interest and background to the mediation referrals received (co-mediators were assigned, not selected by participating mediators). BC is a big province, and this approach quickly created budgetary problems so location was introduced as a primary consideration in co-mediator matching.

Splitting fees in co-mediation wasn’t a consideration as both mediators on each case were paid their standard rate set by the Child Protection Mediation Program so discussions around fees for the co-mediators were not a part of this project. The question of client billing for co-mediation also wasn’t a factor given child protection mediators are not paid by the participating families, but through their service contract with the Child Protection Mediation Program.

Highlights from the Outcome Assessment of the Child Protection Co-Mediation Pilot Project

From the Mediators

What were the mediators’ experiences of the co-mediation pilot project?

  • 72% of mediators found the feedback from their co-mediator was beneficial or very beneficial
  • 92% reported they would be interested in co-mediating again
  • 44% of Mediator Survey respondents indicated the primary purpose of co-mediation is connected to learning opportunities (training and continuing professional development)

So what did mediators identify as the benefits of co-mediation?benefited

I found this to be a wonderful piece of experiential learning. The coordination of our different approaches required me to really think about what I was doing and to see the mediation unfold from another perspective then the one I am immersed in.” – a Mediation Survey Respondent

Overall, this was a great experience and the opportunity to get feedback on my mediation style was invaluable. I would be willing to co-mediate again and, specifically, to co-mediate with this mediator. Thank you for this opportunity!” – a Post Mediation Evaluation Respondent

From the mediation participants

Interesting feedback also came from the mediation participants in how they perceived co-mediation. participants

Mediation participants identified large mediations, with multiple parties or participants (81%) and mediations in which there is significant conflict between the parties (75%) as the two types of cases most ideally suited to mediation. Mediators agreed with regard to large mediations (92%) but selected mediations in which the subject matter or other technical/legal requirements of the mediation are outside a particular mediator’s area of expertise as the other type most ideally suited to co-mediation (92%).

2 sets of ears were a lot better than one set. Having 2 mediators present were able to hear all involved & perhaps different views.” – a Co-Mediation Services Questionnaire Respondent

Capturing some highlights from the report does not give a full and nuanced view of the co-mediation pilot project overall. If one is interested in co-mediation, it is well worth the time to read the Outcome Assessment and consider these findings along with the experiences and thoughts shared earlier in this series.

Outcome Assessment of the Child Protection Co-Mediation Pilot Project

Co-Mediation Assessment Report by Mediate BC

Read more about the Child Protection Co-Mediation Pilot Project. Those particularly interested in the service delivery model question may want to learn more about the Child Protection Mediation Scheduling Services.

[1] Funded by the Legal Services Society of BC, the BC Ministry of Children and Family Development, Mediate BC, and the Law Foundation of BC.

[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.]

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.]

On Co-Mediation Part V: Money Talks – Co-Mediation and Fees 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

Something about discussing money causes many professionals embarrassment.  A sense of awkwardness can arise even in mediators who have mastered the art of the difficult conversation (so long as it’s someone else’s difficult conversation).  It’s not surprising that one of the most common concerns expressed by mediators regarding the possibility of co-mediation is the difficulty in addressing fees for two mediators with clients.  I want to start with a simple reminder that negotiation and management of difficult topics is precisely the skillset we are offering to clients: if fee discussions make you squirm, it can help considerably to give conscious consideration to the application of the mediation skills you would utilize if you were assisting two other parties to negotiate a deal.  (Just as many of us catch ourselves being far less skillful in personal conflict with family and friends than we ever are when professionally engaged, we can also lose sight of the fact that negotiating fees is something we have all the skills to do well – as long as we’re wearing our mediator hats instead of any awkward, private life hats we might switch into from time to time.)

Sharing fees?

One of the primary reasons that fee sharing between co-mediators or a mentor and mentee is important to address is that most mentees will seek experience in order to join one of the Mediate BC rosters.  For their participation in a mentored mediation to count towards the Civil Roster’s 10 mediation requirement, the mediation must be fee-paid or part of an approved mentoring program.  Private arrangements between two mediators will not fall within an approved mentoring program, so the mentee must receive some portion of the mediation fee (at least 1/3) for the mediation to count. For this reason, I’m only discussing arrangements for co-mediations (not observations) and presuming that fees will be split.

Each mentoring/co-mediation situation is different, and while most learning mediators will have an interest in roster certification, it is helpful to treat each mentoring arrangement (and even each individual mediation within an arrangement) as an opportunity to explore interests and come up with a plan that benefits all participants.

Negotiating with the student mediator

There is a wide array of possible arrangements that one can make with a learning mediator, just as there will be a wide range of interests on the parts of both mentor and learning mediator in entering into co-mediation. A few of the most common arrangements include:

An arrangement for a set number of co-mediations to meet Roster qualifications combined with a set number of co-mediations or referrals following

Many new mediators are seeking a specific number of fee-paid mediations to meet Roster qualifications (usually up to 10).  As a consequence, they may well have an interest in a longer arrangement, rather than a one-off co-mediation opportunity.  In these circumstances, the mentor may provide the initial co-mediations and may bill their client the usual fee.  Payment of a negotiated portion of that fee to the learning mediator might be viewed by the mentor as “giving back to the community” or “paying it forward” following mentoring opportunities someone offered them in the past.  In that case, the mentor will likely be open to a few such mediations in a year, treating them much like pro bono mediations which they might similarly (or otherwise) take on.

Alternatively, the arrangement might be conceived of as an exchange: a portion of the mentor’s usual fee for X mediations for any of the following (and more):

  • A set number of referrals for co-mediations with the mentee once the mentee is on the Roster. (This typically presumes that the new mediator has a distinct referral base or area of expertise that the mentor would normally not receive referrals from);
  • Referrals to the mediator from the mentee’s own continuing practice as a lawyer, psychologist, etc. (There are potential issues of conflicts of interest, but an agreement would address the ability of the mentee to make referrals or to encourage colleagues to make referrals);
  • Other forms of work exchange (e.g. I have traded co-mediations for administrative help in scheduling mediations and billing. One might also exchange other services of value that a mentee can provide such as website design expertise, social media support, or any of a wide range of tasks.  And the trade need not be for professional services: I have seen parties to mediations settle the last few dollars of a dispute with an exchange of services such as hairdressing, cooking for each other, sharing of “comp” tickets for theatre, etc.  In mediations I will ask parties to consider whether there is anything else of value they might want to bring into a “stuck” discussion.  We can certainly do the same in exploring our own interests.  Think creatively!)

An arrangement for a single co-mediation based on a referral from the mentee

This is likely the most straightforward arrangement for fee sharing.  The mentor would not have the case (which includes the opportunity to build his own practice in a different area) were the mentee not to bring the case to him, so the financial considerations are limited.  It’s still relevant to consider lost time from other business opportunities, the number of such mediations one can afford to do, etc., but it is typically easy to weigh these kinds of considerations against a simple, shared fee – even if that fee is for less than the mentor might have billed on his own.

These kinds of one-off arrangements turn on fairly straightforward questions:

  • Do I want to help out this particular mediator?
  • Am I interested in the case, or case type, or the business opportunity of gaining experience in this area, or anything else?
  • Will it prevent me from doing something else?

If one takes on the co-mediation, then the fee split should be a straightforward negotiation. 

An arrangement for a single co-mediation of a case referred to the mentor 

Clearly there is more involved from the mentor’s perspective in a negotiation regarding splitting their own fee for a mediation with a co-mediator seeking experience or mentorship.  For many in the BC mediation community, the existence since 1998 of the Court Mediation Practicum Program and other Mediate BC practicum initiatives has normalized the idea that a learning mediator might pay to participate in a mediation to gain valuable training and experience.  Within that context, sharing fees with someone asking to learn is not entirely intuitive.

It may be helpful for a mentor to keep in mind the benefits (professional, personal, and possibly long term financial) that can result from a co-mediation so the notion of giving up a portion of fees is consciously weighed against the real, if less immediately “countable”, benefits. (These benefits have been discussed throughout this series.)  With that in mind, it is also worth contemplating whether any additional benefits to the clients arise from the co-mediation that might justify charging a higher fee for the two mediators. (The negotiation with the client is discussed further in my next post, but consider whether there might be an advantage gained by the clients that should be recognized.) Essentially, as with any negotiation, carefully thinking through the risks and potential benefits to each party, and contemplating the potential for “expanding the pie” by including the possible interests of the clients in the discussion means that the best agreements are available when one has genuinely prepared to problem solve rather than simply responded in the moment to suggestions.

An arrangement for sharing pro bono mediations

I wrote in last week’s post about the potential to co-mediate pro bono and fee-waived or reduced fee mediations.  In that post, I was focused on the potential to provide a learning opportunity for peers, but, one might choose to co-mediate with a mentee in pro bono mediations you would take on in any event.  In such cases, fee sharing is, for the most part, eliminated from the negotiation between co-mediators.  However, learning mediators may well wish to have these mediations counted as part of their requirements to join a roster.  In principle, there should be no difference between a mediation in which the mentor and mediator share fees of $1500 via a ⅔:⅓ formula and a mediation where a fee of $0 is split on the same basis.  If the learning and participation of the mediator is the same, I would argue that the experience should be considered in the same way by the Roster Committee.  However, I would strongly suggest that mediators considering such an arrangement, and hoping to count a mediation for Roster credit, seek confirmation from Mediate BC before relying on an assumption that any such mediation will count.

[Editor’s note: The Roster Committee wants to ensure each mediation counted toward the experience component of a Roster application is a “true” mediation and not a less formal problem solving exercise; fees and the use of an agreement to mediate provide a good differentiation between the two types.]

[Update: The Roster Committee now accepts pro bono mediations as experience toward a Roster application. The new policy reads: “For a mediation to count as experience toward a Roster application, some monetary consideration must be made to at least one of the mediators or it must be a pro bono mediation in a structured setting. If there are uncertainties, it is the responsibility of the applicant to describe the setting and circumstances on his or her application so the Roster Committee can decide on a case-by-case basis.“]

An arrangement between a mentor and a “cohort” of learning mediators 

I don’t know anyone who is doing this explicitly, but I think a symbiotic relationship could be developed by a mentor working with a group of learning mediators sharing subject interest.  Writing this blog has inspired me to consider developing just such a cohort!  What I am imagining here is that a single mentor might well work with a group of individuals training to be mediators who all share a community with common issues to mediate.  For example, many minor sports associations are developing volunteer board members’ expertise in conflict resolution so they can play the role of mediator in disputes between parents and coaches, parents and parents, junior athletes, etc.  At the provincial level, sports associations are at highly varied levels of development of dispute resolution expertise despite requirements to have dispute resolution processes in place to receive some forms of funding.  Even greater diversity exists at the community sports level.  A mentor with an interest in sports mediation might very well work with a group of, say, five board designates to train them in conflict resolution and/or to co-mediate the first disputes that go to mediation within the organization.  I use sports organizations as an example because of my own experience in many capacities with such organizations, but the same model is feasible for other groups such as clubs for any hobby or interest, any residential community (from school residences, through strata corporations, and seniors’ centres), not-for profits (where disputes with volunteers can be common), special interest groups, etc.  Think about your own areas of interest and connections: is there an opportunity to help develop a better community culture of conflict resolution through co-mediation with existing leaders?

In Part VI of the “On Co-Mediation” series, Sharon continues her thoughts on co-mediation fees but as they relate to the mediation clients.

[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.]

This post also now appears on True North Dispute Management.