Is Starting an ADR Practice to Weather the Recession Like Choosing a Niche in Bobbleheads?
This month's ABA Magazine suggests that an ADR practice might provide attorneys with a recession-proof (or downturn-friendly) practice:
On ABAJournal.com, readers were asked to name some of the lesser-mentioned practices where an attorney might find refuge from this recessionary storm. Here are some of your suggestions.
ALTERNATIVE DISPUTE RESOLUTION
Cash-strapped corporations of all sizes, private individuals and others are seeking to avoid litigation costs and procure the services of neutral parties to resolve business-to-business, consumer and family conflicts. That’s been a boon to third-party negotiators in the areas of arbitration, mediation, negotiation, collaborative law and other practices that fall under the broad umbrella of alternative dispute resolution.
Read on here and while you're at it, check out the sidebar by scrolling to the bottom of the page to see how a tweet started a legal network-- Lawyer Connection!
Cartoon by the brilliant Charles Fincher whose blog you can read here.
Now anyone who knows me just the littlest tiny bit knows that I'll recommend mediation as a career to anyone, anytime who is on fire to mediate. As a fall-back, however, let me give a word to the wise: it's 70% marketing and 30% paying work during a good year. If you don't have a book of business already or very strong ties in your own legal community, don't go imagining that you'll be welcomed by open-armed attorneys looking to hire you to help them settle their cases right out of the box. And even if you are well- and highly-place in the community, your former colleagues look for places to hide after you hang out your ADR-shingle.
"Oh no! That's Bob! Now that he's a mediator, he's always bugging me to hire him and I've got 20 other old friends who are in just the same boat."
First of all, you have to disappear for a little while, learn your trade, re-create yourself as someone other than a fellow lawyer to begin getting steady work as a mediator. And you prove yourself case by case, day by day, lawyer by lawyer, client by client for a year or two before any really decent word of mouth begins to spread about your talent, your persistence, your dedication, your ability to inspire trust and your patient unraveling of the strings of discord in which all parties are entangled when they arrive at your door expecting you to get three to ten years of litigation straightened out on a single sunny summer afternoon.
And though arbitration is a great field for dedicated and hard-working lawyers going gray, it too has a long start-up period while you learn the field and garner sufficient trust in the community that you're now an even-handed neutral rather than a fire-breathing advocate for your clients. In fact, being an aggressive litigator in a specialty all but disqualifies you in the minds of many to serve as an arbitrator because, the thinking goes, you must be biased in favor of the industries that used to pay you your living. I know. I am about as neutral as a former "bet the company" insurance coverage attorney can be -- seeing as how I'm married to the loyal opposition. Still, many coverage lawyers worry that I'll naturally be inclined toward the insurance industry whose interests I represented in (primarily) environmental insurance coverage cases.
Were I entering the ADR field today (which is crowded in Southern California but there is always room for another star) I would both arbitrate and mediate for a couple of years while I continued practicing law and then make the jump (because you must cut the cord on practice to be truly successful) when I felt I had a good enough stream of ADR income to support myself without going into debt.
That's my two cents worth. Anyone else in the ADR blog posse want to chime in?
Comments (4)
Read through and enter the discussion by using the form at the endDiane Levin - July 29, 2009 6:13 AM
Vickie, couldn't agree more. You know where I stand on this issue - I recently wrote a post busting urban legends, including the one that claims mediation is an ideal career for making fast money: http://mediationchannel.com/2009/07/15/mediation-career-myth-busting-5-urban-legends-its-time-to-debunk/
I'd propose a different breakdown of the percentages for people at the start of their careers. I'd say that at the beginning, the numbers come out to something like 80% marketing, 18% floundering about and trying to work out what the hell you're doing since you still don't know how to mediate well, and 2% making any money at it.
I'd also point out that it's interesting how narrowly we see the range of mediatable disputes. We tend to think of mediation as a last-ditch effort to settle a case before trial. There'd be more opportunities for mediators if many more of us recognized - and helped clients understand - that not every dispute arises in law. Many disputes that lend themselves well to mediation lie beyond the reach of the shadow of the courthouse. They have no answers in the law and cannot be resolved through litigation. Here's where the "alternative" in ADR makes no sense ("alternative" as in "alternative to court"). I think in fact that the "A" in "ADR" has done us all a disservice. The way it frames mediation limits our ability to see the full range of possibilities. It's like looking at the world of disputes through the cardboard tube inside a roll of toilet paper.
Remember too that mediation is assisted negotiation. Mediation is ideal for helping people structure deals to prevent disputes from arising later and to maximize gains for all sides.
I do believe that mediators and prospective clients would prosper if we thought more broadly about the applications for mediation.Just something to think about. Thanks, Vickie, for another superb post.
Vickie - July 29, 2009 10:40 AM
Thanks for dropping by Diane and leaving such generous and good advice, particularly pre-litigation (or should I say non-litigation) advice.
Ironically, I've been trying to get someone with whom I have a dispute into mediation for nearly a year. Perhaps we've trained the entire population that they needn't resolve what LOOK like legal disputes without being sued first. I haven't filed suit yet but I'm afraid I need the big stick to get the person who should be my bargaining partner and not my opponent to the negotiation table.
I'm sure you play the Prisoners' Dilemma game with your mediation students, teaching everyone that tit for tat (cooperate, defect if your partner defects, forgive quickly for a return to cooperation) remains the most effective dispute resolution process around (to be neither victim nor bully).
Litigation is often the retaliatory defection that can lead to resolution if the lawyers and their clients understand that there is always far more at stake (and more to lose) in any "legal" dispute that the law is set up to handle.
As Eric Schmidt, Google's CEO, says: "litigation is just a business negotiation being conducted in the courts," to which I would add, and which should quickly be morphed into an opportunity to make a business deal.
Andrea Goldman - July 29, 2009 1:45 PM
No one in her right mind should think that ADR is a good way to make money or an attractive field in a recession. I almost fainted from shock when I read that article. I have been a mediator since 1996 and an arbitrator since 2003. It is very difficult to break into the field, and even more difficult to earn money from it. I do not expect ADR to comprise a significant portion of my practice for at least another 10-15 years.
Vickie Pynchon - July 29, 2009 2:57 PM
Thanks for dropping by to comment, Andrea. There ARE exceptions to the rule that an ADR career is 3-5 (or 10-15) years in the making and I do know neutrals who continue to struggle making a living 15 years after they commenced their full-time practices. I advocate having several streams of income which in my case includes the occasional ghost-written appellate brief, as well as negotiation seminars and workshops. I began 2009, the 5th year of my mediation practice with this mantra: MONETIZE ABSOLUTELY EVERYTHING. It's been easier than I thought to do so. I preach that women just need to be more bold in demanding reasonable compensation for their work, but have spent far too many years giving too many of my services (telephone consultations for instance) free. My bank account reflects my new attitude and I recommend it to everyone.