Mediation Meditation: Expanding the Practice

I’ve been thinking a lot about expanding my practice to include mediation services. You might say I’ve been meditating on mediating. I’m trying to follow my own advice about working in one’s “authentic niche.”

Part of my motivation is that while enjoy the work I do now, I’ve been hungry for a new challenge. I took some time and asked myself what I enjoy doing and what I already do for free. Over the past several years, I’ve been helping resolve a lot of conflicts before they had a chance to really heat up, and plenty of work with people after they got hot, but before the explosion. I’m really pretty good at it.

I reviewed what I enjoyed in law school. My favorite class was a semester-long “negotiation” workshop in my last semester. The class was based on the book Getting to Yes by Roger Fisher, William Ury, and Bruce Patton. I did very well in that class and have been using the interest-based negotiation strategies almost every day in my business and personal life. For those of you who are not familiar with this book, get it. Get it now. It will change your life by showing you how to get out of haggle mode and seek true win-win solutions in everything you do. Anyway, this book is the bible of mediation because the goal of mediation is helping people find win-win solutions to conflicts and other negotiations.

So far, so good. I think I would enjoy mediation work, and be good at it. A general knowledge of ADR and my own experience with clients wanting to mediate rather than litigate, followed by some specific research into the mediation industry growth made me confident that I could do well. Finally, I’m always confident that I can find a unique approach to any practice area and communicate that distinctive approach well enough to attract the clients I want.

What’s next? Research.

I started looking into what it takes to offer and provide mediation services. I was a little surprised to find that anyone can just say they are a mediator without any licensing or other credentials. There are probably several self-trained problem-solving mediators out there doing a wonderful job of helping people and making comfortable livings. I’m not that confident, or at least I’m not that cocky. I want to learn a little from experienced people before just diving in on my own. That means some training.

My research suggested that the bare minimum mediation training is a 40-hour certification course. My state Bar Association offered one in January and I was all set to take it as a CLE, but when I called the course was full. I was very disappointed because the next course offering wasn’t until April.

This week.

This week I’m investing the entire week in 5 full days of mediation certification training offered by the same firm that taught the course for the Bar Association. Yes, it’s 40+ hours of CLE credit too, which is nice because it covers me for almost 3 years. I’m sure I’ll learn a lot of new approaches and I’ll review the law school negotiation class materials. I re-read Getting To Yes before the class and found those old class notes. I ordered a few books on creating a mediation practice. I’ll spend some time this week meditating on how I can make this practice my own. How can I put my own spin and unique personality on what I want to do? I’m generating ideas. I’m sharing some of those ideas with the people in the class. I’ll share some of those ideas with you soon.  Then, I’ll give those ideas a try, because even the most sophisticated guided missiles can’t make course corrections until they are in flight.

I’m sure I can’t be the only one out there considering or already offering mediation services as part of their practice.

For those of you in the niche, what should I consider?

For the others meditating on mediating, what would you like me to ask or discover that would inform your thoughts?

What books should I read?

Who should I follow or friend?

What technology should I use?

Post your advice and questions below.  I’ll have an updated post next week and be tweeting when I can during the training.



  1. Tammy Lenski has a good book and blog on starting and running a mediation practice

  2. Thanks Carolyn! I found that and have started some email correspondence with Tammy. It seems there are some very helpful people (go figure) in this niche who are willing to share what they have learned to help others avoid making the same mistakes. I like that.

  3. Avatar BL1Y says:

    “the goal of mediation is helping people find win-win solutions to conflicts”

    If you go into mediation with this philosophy, you’ve already prejudged the merits of the dispute, you’ve decided that the parties ought to settle.

    Many times there is no win-win solution, or the best thing for one of the parties is to have the emotional value of having their day in court, even if it isn’t the most economical option, or some cases should go to court to discourage future plaintiffs looking for an easy pay day with a meritless suit.

    The purpose of a mediator is to help the parties communicate effectively, think rationally about their positions, and to provide possible solutions the parties may not have considered (more likely with unsophisticated parties, where perhaps they haven’t considered a sale-leaseback, or a high-low agreement).

    But, the mediator should not be seeking a specific outcome, and reaching no agreement ought to be left on the table.

    As for your reading list, I’m sure you’ve already got Bargaining for Advantage, and The Power of a Positive No on there. I’d also suggest Freakonomics, Superfreakonomics, Predictably Irrational, and The Upside of Irrationality; behavioral econ will help you to better understand what is motivating the parties, especially when they appear to be making irrational decisions.

    If you have the math background to not be intimidated by it, look at Behavioral Game Theory: Experiments in Strategic Interaction.

    As for things to ask, try asking what you should do if during caucusing you learn that there is no zone of possible agreement. You cannot tell the parties that further mediation will be fruitless, because doing so will reveal confidential information. You might not be giving details, but you did just provide information about each party’s reservation points, and you can’t do that. But it also doesn’t seem like you should continue to waste the parties’ time, especially if they are paying their lawyers (and you) by the hour.

  4. Avatar Jason says:

    There are several books I would suggest (I got my MA in Peacemaking and Conflict Studies with an emphasis in mediation at Fresno Pacific University… so, I spent a lot of time reading and trying to implement this stuff):

    1. The Promise of Mediation by Bush and Folger – It is a great yin to “Getting to Yes”‘s yang.
    2. The rest of the Harvard Negotiation Program books (“Getting Past No,” and “Getting Together”)
    3. “Moral Imagination” by John Paul Lederach – This is more of a conflict theory book. Lederach’s expertise is in cross-cultural stuff.
    4. Mediation Career Guide by Forrest “Woody” Mosten – This book is a very practical guide to developing a mediation career. And Woody is one of the fathers of the modern mediation movement. His expertise is all of the place but mainly in divorce.

    There are a lot of good books out there… If you want to get some other training, check out to see if you have a local Victim Offender Mediation Program in your area (some call them Victim-Offender Mediations or Victim Offender Reconciliation Program).

    Anyways, I hope this is somewhat helpful.


  5. Thanks for the suggestions for books. I have several already, but there are some new ones in the list too.

    How about technology? I’ve not done much research there. I plan on working with people in business issues who are geographically separated – what video/teleconferencing solutions might make the most sense?

    • Avatar BL1Y says:

      I know you can do conference calls on Skype, and am pretty sure conference video is also possible.

      I’m sure there are much more sophisticated technology solutions, but I’d go for keeping it simple. Lots of people already use Skype, it’s easy, and it’s free. What’s most important though is making sure the mediation forum doesn’t itself become a new dispute between the parties. Make sure you control the forum, don’t let the parties negotiate over it.

      You could also consider going old (relatively) school, and use e-mail. You can act as an intermediary, having them send their remarks to you, and then you will pass them on to the other party. This would be particularly useful when the parties are particularly animated, or where one side feels intimated by the other. You will get fewer emotional knee-jerk reactions, especially if you tell the parties up front that you won’t forward on any communications that are plainly unhelpful to the mediation.

      But, the drawback of not having live communication means that the mediation loses some of its ability to have the parties feel that the other side has listened to their position. Often times the economic interests aren’t the issue; someone feels they have been wronged, and even if it can’t be made right, they at least want the psychic value of being heard out. Conference calling and even video conferences will also have this short coming to a degree though. You’ll really have to let the nature of the individual disputes decide what forum is appropriate.

  6. Avatar Nancy says:

    Hi, Kevin!
    I’m glad you’ve decided to take mediation training. Tammy is a great resource and a wonderful, supportive mediator. Making Mediation Your Day Job should be on your list. As for mediating, I’d recommend, Mediating Dangerously, by Ken Cloke. Also, look into joining the Association for Conflict Resolution and/or your local chapter. They have some great continuing training.

  7. Avatar Justin McLeod says:

    I applaud you for your article and I will follow closely. Mediation appeals to me too and I am interested in bringing more collaborative divorce to my area. Thanks for the article and the book recommendation!

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