Section Review

A common discussion in alternative dispute resolution (ADR) circles is how to make the profession more accessible to younger aspiring mediators. As a relatively young mediator who navigated a way into this field, I thought I would weigh in. Given my experience, this discussion relates to civil mediation — cases in the areas of business, torts, real estate, employment, etc., where the parties are almost always represented by counsel. Although I wrote this article with younger mediators in mind, most of what I suggest would benefit aspiring mediators of any age.

Put simply, there need to be fellowships in the field with the following components:

1. Training — In Massachusetts, aspiring mediators complete a 30- or 40-hour training course to meet the requirements of the mediation confidentiality statute. I hope I don’t offend too many folks with this, but such training courses are wildly insufficient for someone (of any age) who wants to practice civil mediation. Those trainings are an excellent introduction, but they focus primarily on teaching how to identify interests versus positions, active listening and reframing. They touch on many other topics, but only at a very high level. To expect someone to come out of a 40-hour training ready to mediate a litigated case is like showing a brand-new golfer how to hold a club, critiquing their first few swings, telling them a bit about what to expect during a round of golf, and then sending them out to play in a serious golf tournament. I did not feel remotely ready to mediate an emotionally charged litigated case after I had completed a 40-hour training and mediated several cases in small claims court. It was only after I had spent months observing and co-mediating civil mediations that I felt equipped to take the reins.
   
   
2. Opportunities to Showcase Skill — To have an active practice, a civil mediator needs to be thought of as a go-to mediator in the minds of many trial attorneys. Building such a reputation can only happen one way — the mediator needs opportunities to prove what she can do, and she needs to capitalize on them. There are significant hurdles for new mediators (of any age) trying to get those opportunities, chief among them the high stakes for the attorneys, litigants and insurance professionals involved in any given case. Those parties want their case handled by a seasoned mediator — preferably one they’ve worked with before or who has come recommended by people they trust. Young aspiring mediators have the additional hurdle of being taken seriously despite not fitting the mold of the old wise mediator who has spent decades trying cases and/or wearing a robe. The solution is to have someone vouching for the young mediator and/or to have the young mediator initially co-mediate with a seasoned mediator. I had the good fortune of both of those advantages, and they were integral.  
   
   
3. Sufficient Time with Compensation — Even if the young mediator impresses the socks off everyone she mediates with, and those now sockless attorneys and insurance professionals tell everyone in sight about how fantastic she is, it will likely take years before she is busy enough to make a living. For a young mediator to have that sort of staying power, she needs at least a meager income until the cases start flowing. While late-career aspiring mediators may have the financial security to forgo income for the time it takes to build a practice, early-career attorneys typically don’t. The advice aspiring mediators have traditionally received is that they shouldn’t quit their day jobs. But there are problems with that advice. First, a young lawyer’s day job is often at a law firm, and law firms typically have policies prohibiting their attorneys from working outside of the firm. The reasons for those policies include liability and conflict concerns, as well as the firm not wanting its lawyers’ professional time and attention to be diverted. Second, even if the young lawyer’s employer does not prohibit outside work, there is the practical concern that strong law firm associates typically are not swimming in time. Billable hour requirements and expectations regarding client service and responsiveness all but preclude a young lawyer from taking the necessary time to mediate cases and build a practice. A solution is to provide a stipend for the young lawyer to devote herself to mediation for a reasonable amount of time until she can develop a case flow. The income would pale in comparison to what she would earn as a law firm associate, but that’s a good thing. Only the most committed aspiring mediators would be interested. And perhaps the stipend could come with the condition that a percentage of the young mediator’s revenue would belong to the sponsoring organization for a specified period of time. 
   
   
4. Highly Selective Criteria — Young attorneys should not be attracted to these fellowships because of the stipend. Instead, such fellowships should attract young attorneys who have more lucrative and well-trodden paths open to them but want to be mediators with every fiber of their being and believe they have the talent to build a practice. How to evaluate the applicants is beyond the scope of this article, as it implicates the question of what makes an effective mediator and there will inevitably be an element of subjectivity, but part of the criteria should be an excellent law school record and post-law-school experience.

A fellowship with the components above would provide a talented young aspiring mediator with at least a fighting chance at launching a mediation practice. That said, one might argue that the desire to bring young attorneys into the profession is not worth all this trouble, or that implementing what I suggest is not practical. Some may even argue that cultivating young mediators is not worth any trouble, given that there will always be a steady flow of late-career lawyers and retired judges who want to mediate, and thus the survival of the mediation profession, unlike many other professions, is not dependent on the entrance of young attorneys. 

My response would be that, while it’s true there is no shortage of late-career attorneys who mediate or wish to mediate, there are surprisingly few truly elite mediators. I’m in a unique position to speak to that as someone who spent a year working with numerous mediators in Boston as part of my training. Those truly elite mediators I know have developed their mediation expertise over decades of practice. Of course, there are legions of mediators I haven’t seen in action, and surely there are countless great ones. But I would wager that the greats have been at it for a very long time. To have more greats, we need to provide younger attorneys who have the commitment and aptitude for mediation with a path to learn the craft and make a living. The earlier we allow talented young mediators to begin honing their skills, the greater the benefits that will accrue to litigants, trial attorneys, the judiciary and those mediators-to-be who want to do what they were meant to.