Please upgrade your browser.

Build Your Mediation Brand

Build Your Mediation Brand

Many believe that mediation is a ‘winner-takes-all market’, where the rewards from mediation are concentrated in the hands of the few. So how can you or I gain some market share, stand out from the crowd and what’s the right level to pitch our fees at when talking to prospective clients. In this interview Mike Lind shares some strategies to help establish your mediation brand, gives advice on setting fees and talks about new opportunities for mediators arising out of the Jackson reforms and a changing regulatory environment.

Sign up for FREE to access more videos

Sign Up NOW!

Transcript

Full Transcript

Aled: Hi, everyone. My name is Aled Davies, founder of MediatorAcademy.com, home of the
passionate and ambitious mediator. A place where mediators, new and experienced, come and listen to experienced mediators tell a story about how they built their mediation practice or shaped their career.

How they’ve handled particular dilemmas and challenges that they’ve encountered along their journey. What they’ve done that’s helped them become effective and successful. I love these interviews. I find them inspiring.

I find them so motivating because I learn so much from them and I hope you will too, so that you can go out into the big bad world and build your own success story and hopefully come back on here and tell my audience how you did it.

The big question for today’s interview is this: How do you build a brand as a mediator and how you grow your business? I know my guest today will be well-placed to answer this.

He’s an internationally-recognized authority on mediation and dispute resolution. He started his career as a lawyer in South Africa in the mid-90s. He came to the U.K. shortly after that and joined the Department of Trade and Industry as an insolvency and corporate recovery lawyer.

It wasn’t long after that that my guest saw the light, leaving behind his legal career and joining one of Europe’s leading specialist providers of mediation and dispute management services. He quickly took the reins and became chief exec of ADR Group, where he was instrumental in shaping a strong brand and driving a profitable business.

Today, he’s firmly involved in running his family business, where he combines his passion for growing a business with his raw drive to succeed and create his own success story. He still maintains strong links with the world of mediation, which is why I’m [inaudible 02:09] he’s talking to me today. Mike Lind, welcome.

Mike: Hello Aled, good to speak to you.

Aled: Look, Mike, I’m really [inaudible 02:19] that you’re talking to me today and I wanted to
just come back to the first time we met, which is at the mediator breakfast, back in London, a few months back.

You talked about the range of subjects, which really got my attention, things that I’m also interested in passionate about, one of which was how you brand yourself as a mediator, how you distinguish yourself from the market that [provides in the market] standouts.

But, also, how do you go about pricing your product, your service. You also tacked on regulation and the Jackson reforms and I want to get your perspective on where you think opportunities might emerge for mediators as a result of, maybe, these reforms or any other regulatory changes that are going to happen.

I really want to know how I and my audience, I guess, could take advantage of a change in market to build up business as a mediator. I’ve got a whole bunch of other questions that I’m really curious about.

Before I get there, I always like to ask how my guest first got into mediation and for me, interviewing you is kind of special. At the time you were, sort of, in your fledgling legal career, that’s about the time that I was in South Africa.

I was introduced to mediation, purely by chance. So, we were in the same place, at the same time, maybe different parts of the country. I’m curious how you first got into mediation, Mike.

Mike: Yes. When I qualified as a lawyer in South Africa, it was early 1990s and I, as part of
my article clerkship, I had to do very stints in different areas of practice. I worked for a number of years within the civil litigation and criminal courts and quickly realize that litigation was a very procedural, very confrontational process.

It’s actually, as we all know, a process where the decision is decided by someone other than the parties themselves. It’s decided by a court, decided by a judge. I always found that sort of quite challenging and during my period, I was very lucky to work with a couple of barristers in the labor relations context or employment law context in South Africa.

Where, as a result of the abolition of apartheid, there were a lot of huge sort of cultural and political and emotional changes happening within the country and, really, the court system was ill-equipped to deal with a lot of these, what I would call “expectation management situations.” We were very privileged then to be working in the very early stages of mediation.

Essentially, it was a dialogue process. Although I was a young lawyer, wet behind the ears, I was really exposed to this where you could go into a collective negotiation environment where fairly tough and hostile positions taken on either sides.

Actually, work through a practical solution that will deal with the employees future interests, still with the commercial and corporate interest of either the government or the business and find a practical way forward, to address both side’s interests.

I was just, “Oh, this is definitely better than sitting in the County Court arguing a petition against someone on a criminal matter or insolvency matter or commercial matter.”

My interest in mediation began in South Africa, really, dealing with employment law and finding the power of dialogue. I knew that was my calling to do that. When I came to England in the mid-90s, I really wanted to maintain that, but had to get used to a different professional regime.

I had to qualify as an English lawyer. I qualified as a U.K. mediator, as well. I was really looking for an opportunity to get into the business side. I was always interested in, “How can we really promote this process?”

I am a mediator. I do mediation, but I was always interested in, “Let’s take it from his current position up to somewhere bigger and both, I suppose, one at an ideological level, this is a great process, how can we make it better?

Secondly, it’s a professional process. It’s a business. How can we actually take this process and make a difference to businesses and people’s lives?”

That was really my start. It was based in South Africa and in many ways, I suppose, mirroring Nelson Mandela, who was imprisoned for so many years. He came out and the first thing he wanted to do was negotiate with the white government about the future [array] for the Rainbow Nation.

I think there are a lot of similarities between what Nelson Mandela did and what mediation stands for. It’s actually listening to people, understanding where you’re trying to get to in negotiation and exploring all avenues to achieve that.

Aled: As you’re talking, I’ve just come back from South Africa had a lovely holiday. It’s the
first time I’ve been back, actually, for about 12 years. [I] went to Cape Town and as you’re talking now, I’ve got goosebumps.

The goosebumps are . . . When I was introduced to a friend of mine who was a lawyer in South Africa, he said, “Look. You know . . . ” I was working up in Angola and Congo at the time.

He said, “Look. You know, you need to develop some skills to get yourself out of sticky situations. Go on this course.” I didn’t know what I was getting myself into, but it was a six-day workshop. I was only used to the chalk-and-talk style of learning from University. The whole concept of a workshop and interactive was a revelation to me.

It was a lightbulb moment for me. I come from the Rhondda Valley, South Wales. If you had a disagreement with someone or you saw things differently with someone, there were one of two ways of sorting that out, neither of which involved talking.

The idea that you could, you know, sit across the table or have a dialogue with someone and make your point where you could get your needs met was just a revelation, and it was.

That experience has stuck with me and I feel it was my calling, as well. I really, genuinely feel that. So, listening to you and . . .

I remember at the time thinking, I was really moved by, you know, the capacity of the South African people for compassion. I got a sense there was a lot of compassion in the country and a willingness to forgive and that was [inaudible 09:38].

Mike: I think that’s very true. I was also very actively involved in the periphery of the, you
know, the Truth and Reconciliation Commission, which is exactly the same type of process really, getting people to apologize for what they’d done, but in a structured environment.

Actually, with the intention to say, “What we did was wrong. How can we move forward positively?” There’s a huge credit to Desmond Tutu for leading that initiative, which, really, transformed South Africa. You know, compassion is an important part of human nature and human life.

It’s not intended to be a capitulation to say, “Oh, well, let’s just roll over, say ‘I’m sorry’ and everything will be fine.” You know, you’ve still got to be meaningful about it. You’ve still got to be strong about it and there’s some instances where it’s very difficult to move on.

I think it’s still a very widely held belief that mediation or talking or compromise is always the easy way out. I think, you know, from [bitter] experience and seeing real life situations, you realize actually, it’s often the toughest way forward is to sit down and negotiate and be positive about it.

The idea that, you know, present-day mediation is a walk in the park. You sit around the table with nice biscuits and orange juice and you talk to the day and you come out and everyone smiling and shaking hands afterwards, is seeing really, through rose-tinted glasses, because it’s much more difficult to have a constructive dialogue and be positive about it.

That’s where the help of a third-party facilitator adds enormous value. I saw it in South Africa, I’ve seen it in the U.K.. I’ve been very privileged to work with ADR Group. I feel I’ve been able to help them develop a lot, in terms of their brand and their profile.

I’ve also been privileged to work internationally. I probably worked in over 20 different international jurisdictions, helping embed the principles and philosophies of mediation through training, through dialogue, through liaison with principal stakeholders. The themes are all similar. The experiences are all similar.

Aled: See, I think you touched on something that is highly relevant to why I think mediation is
struggling to take off. Most of the work that I do is in big corporates. Okay? I do very little commercial mediation. A lot of my mediation work is for big blue-chip clients.

It’s internal, within organizations. It’s helping them address conflict and the very fact that it’s actually the reality of mediation isn’t, it’s a nice conversation with a glass of orange juice and a cup of tea. It’s a tough conversation.

If I think back, you know, [2K], almost 20 years since I trained as a mediator, and, in the last 20 years, it hasn’t taken off. I’ve got some big clients who FTSE, 25 clients. I’ll speak to very senior people and they never heard of mediation, or their understanding of it is completely different.

I’m Gobsmacked. Whereas, if you look at something like executive coaching, which, in a sense, is kind of similar to mediation, in that it’s not really a regulated industry. It’s not the profession, in inverted commas, but it’s massively taken off.

The product is also very similar in that, I think it’s kind of an inelastic product. You’ve got people coaching at $3,000 an hour and people coaching at 50 quid an hour and their relative effectiveness isn’t justified by the differentiation in fee. There’s a lot of similarity, but one’s taken off and the other hasn’t.

Mike: Yes. It’s a very good question and I think everyone scratches their head about it,
thinking, “How is it really going to . . . What’s the tipping point?” I’m sure you’ve read Malcolm Gladwell’s books. There is one brilliant book, obviously, “The Tipping Point.”

How did Hush Puppy and how did other big brands which are now internationally recognized brands, how did they suddenly become . . . little products and developments suddenly become global phenomenon? I think it’s really interesting to try to look at that from a mediation perspective.

Clearly, there are millions of disputes out there and they’re all being resolved in different ways, some directly through dialogue, some through the courts, some through other forums, which, you know, probably would be contrary to international sort of justice principles.

But why is mediation not there? It’s a very interesting point. Are we shackled by tradition, legal tradition, globally, nationally? I think there’s a lot of different points.

I think the one challenge that mediation still faces as a concept and as a brand is that it relies on the goodwill of both parties. I think, often, these conflict situations, one party maybe willing to try and settle and be reasonable and the other side won’t be. Mediation doesn’t have, at its core, any force or coercion involved.

It’s a consensual process. It’s nothing… Lacking in some respect, is it strength, but also, it’s limiting factor. It will get bigger. It will become more prevalent as a process, but it’s going to take time.

Then, all the mediators I speak to say, “How much longer is it going to take? You know? I’ve invested my money in training. I’m desperate to get flying hours. I want to be a mediator. I want to make a difference, but how do we get this tipping point? What else do we have to do??”

That’s where I’ve always had that real interest in it from, almost from a users perspective, a business perspective, a brand perspective. How do we take this process, which we know, we love, we know it works and make it into something that’s bigger? It’s a real challenge.

I was, my time of day at the ADR Group, constantly speaking to different interest groups, different stakeholders, different objectors to mediation, trying to help them get to embrace it more.

I think, largely, we’re very successful, but you’re still scratching at the iceberg, unfortunately. It’s going to take a while. I’m sure we’ll cover that as we get to this interview.

Aled: Yes. You talked about how we’ve sleep . . . I think you used the expression, “We’ve
sleepwalked into this legal community.” You know, almost, we’ve created some of the problems ourselves.

Mike: Yes. Yes.

Aled: I mean, what did you mean by that, Mike?

Mike: I’ve heard that expression before and I think the notion that mediation is a process
within was broadly referred to as “alternative dispute resolution,” and by definition, that implies alternative to conventional litigation.

It includes arbitration, conciliation, mediation, all the alternative forms of resolving conflict. I think, the impression is that it really should be outside of the law. It should be something which people should have access to as an alternative to litigation, but we’ve become very intertwined with litigation.

You know, Lord Woolf [SP] made some phenomenal changes to civil procedure codes in the late 1990s and embodied the requirement for parties to consider mediation as part of conduct of a case. That was enormously, widely welcomed by users and practitioners alike. I think that was really the right way to go.

Also, it meant that, actually, mediation became more intertwined legal process. I think, in some respects, unwittingly, we probably, we have walked into that. I don’t think it’s wrong or a bad outcome at all, but I think is going to be more difficult to extricate mediation from the law.

I think there are lots of very successful initiatives around that already, internationally, where mediation is purely a contractual alternative to proceeding down an established litigation route.

We’ve got, I think we’ve got a very interesting situation, but yes, I think it’s probably a bit unfair to say we’ve really slept walked into it.

I think there’s been a very conscious, certainly in the United Kingdom, a very conscious decision to say, “Litigation, generally, is very expensive.
Access to justice is generally very expensive. Mediation can help enable better access to justice. It can make the whole process more effective.”

I think there is a lot of thought that has gone into positioning mediation more closely to the law and giving it a real… You know, if you’re going into multi-door, sort of, courthouse type scenario, you’ve got Litigation is door “A” in front of you. Arbitration is door “B”. Mediation is door “C”.

It’s all one and the same, but, I think, a lot of people still see it as possibly an overly-legalized process, as opposed to a consensual facilitation of an issue without getting involved in the nuts and bolts of legal argument.

Aled: Yes. Yes. So, for me, I did a lot of training of commercial mediators with a [inaudible
20:20] arbitrators and Martin, Dave Richbell and Jane Gunn and there was a little part of me that felt a little bit uneasy about it.

I would meet many mediators who had invested a lot of their time and resources in training to become mediators and were just effectively redundant and having to go back to their old career and maybe they would pick up a case, even one a year. You know, it was . . .

Of course, you know, you train to become a mediator, but if you’re not utilizing your skills and developing and sharpening them, then, when you do come to having your first case or your first mediation is six months later, you know, the majority of those learnings and those skills are gone.

Those cells in your head and those neural pathways are kind of dissolved. It’s a way that we can think of it. It’s just a waste of resource, a waste of time, waste of money. I’ve got [inaudible 21:32] similarly around trying to help mediators developing a brand and building their business.

Because if there’s no market or the market isn’t ready for mediation, then to what extent can we as mediators create a market to our brand, through our activity? What can we do as mediators to be market makers, in effect?

Mike: Yes. I mean, that’s really the area which I loved and worked under it strongly within
ADR Group, and, what we did, is, obviously, focused to one extent on sort of the [inaudible 22:10] on the brand side and trying to find lots of mediation workflows coming in.

The relationship issue to me is always fundamental. Whenever I spoke to mediators after they’re trained, I say, “Look. You’ve got to realize that this is, it is tough. The market is there. It doesn’t know it’s there. The opportunities are there. You’ve got to find them. You’ve got to work with us. We’ll do our best at ADR Group to get cases for you but, you, yourself, also have to take the lead.”

I always used to say that you’ve got to develop your 30 second elevator pitch. If you’re standing next to someone on a lift, you’ve got 30 seconds to tell them “Why should they be thinking about mediation?” You’ve got to talk to everyone, whenever you see them, about mediation.

If you’re dropping the kids off at school, you’re waiting at a traffic light and you’re talking to someone, drop in the word “mediation.” Say, “Have you ever considered using dialogue to resolve an issue that you’ve got, whether it’s personal, family, business, whatever?”

Talk to people. You’ve got to build, draw on your energy and your enthusiasm and, loved your expression of the neural pathways dissolving over time in terms of the actual skills a mediation, because they are. They are skills.

The things that you can learn about mediation and how I can be most effective in communicating and helping people with their own communication.

I always encouraged newly qualified mediators. You’ve got to go out and build your own brand, your own reputation as a mediator and take every single opportunity that comes your way to network, to speak to people, to attend many business gatherings or business meetings.

If you’re a lawyer or a nonlawyer. It doesn’t matter who you are, but you’ve got to start promoting it almost as yourselves. Say, “I’m ADR Group accredited but I want to do mediation. Let me come and talk to you. Let me come and see if I can assist you on a particular dispute.”

I think it was more just giving people the encouragement and sort of the psychological confidence that it’s all right to go and talk about mediation. This is not a . . . I know I had some very funny discussions with some litigators in some of the big firms, where these “redmeat eater” litigators, who trained as mediators are really viewed with a huge degree of skepticism by colleagues in the corridors.

Saying, “Well, we’re litigators. There’s a funny [anorak] person in room 36B down there, he’s trained as a mediator. We’ll give him a little space to just calm down and do his little thing, but, really, we just do litigation,” and just try to get people to break that down.

When I started, in the mid-90s and late 1990s working with some big law firms in the U.K., that was very much the position. You know? Mediation was almost seen as the second rate service which a law firm might offer. It wasn’t mainstream.

Over the last 10 years, I’ve just seen that completely change. When I was instrumental in helping a lot of law firms change their litigation department to dispute resolution department.

They realized as a firm that they had clients who might be interested in a proactive, practical resolution, which could be obtained more speedily, more cost-effectively and be more in their commercial interests than running a litigation.

There was a lot of change, which we saw and helped facilitate, but it was all down to individual reputations, individual. Mediation’s not this big colossal process which you can just outsource and you can get. It’s down to the personal traits and characteristics of each individual mediator and how they portray themselves, how they conduct themselves.

That’s a lot of what I did. Many mentoring, newly qualified mediators, give them confidence and the strength to say, “This is a good process. Be confident about how you conduct yourself as a person and how you present your skills, your newly acquired skills so your pathways don’t dissolve into a really value-added service, which you can offer.”

Aled: There’s a couple of things I want to come back to. First of all, you talked about the 30
second elevator pitch. I want to get into that in a moment. Then you talked about kind of spreading the word. You drop the kids off at school, talk about mediation. Then, you talked about networking events.

Then, you said something about how you’ve helped many law firms change their litigation practice or the sign above the door from “litigation” to “dispute resolution.” It got me thinking about the market perception of mediation.

Sometimes, when I go in and talk to clients about mediation and they come around to the idea, they say, “Yes. We’ve got a situation and can you help us mediate? By the way, don’t refer to it as “mediation.” Refer to it as a ‘facilitated meeting,’ please.” Mediation, kind of evokes a particular response that people don’t find helpful.

You know, changing a word from “litigation” to “dispute resolution” doesn’t necessarily change what they do, but it might influence other people’s perception of what they do. Is that right?

Mike: That is right and that’s just a strategic issue. Some law firms wanted to portray the fact
that the way they conducted litigation was in a much more widely-accepted or widely-structured concept in the sense that there will be certain cases that their clients have where, you know, a straightforward litigation procedure wasn’t going to be in their best interests.

They saw it as a commercial opportunity. “Look, the law is changing. Our business is changing. Our customers are going to have differing needs. Let’s make sure we don’t only offer litigation, but”, whether they only called it “mediation,” or whether they called it “round party settlement discussions with counsel,” or “facilitated meetings,” there a lots of different ways in which, you know, the cat can be skinned, to use the analogy.

I saw it as a real sort of mind shift that law firms are going through, that they recognized that, you know, as a result of Lord Woolf’s reforms, mediation was part and parcel of how cases should be conducted, that there was an obligation that they had to consider mediation at some stage and they wanted to make sure that they were consistent with their view.

Admittedly, that’s only in civil and commercial work. I don’t think we should forget the huge leaps and bounds which the family law and family mediation community have taken. Family mediation is incredibly, tightly embedded in the process now, rife with legislative requirement and judicial acceptance.

Also, it fits very sweetly, in terms of how stressful a divorce proceeding can be on children and the negative impact it can have on well-being and personal and psychological development. Mediation helps provide a different framework for that to take place.

And then, Aled, you’ve spoken about your work within corporate’s and workplace mediation. I mean, that’s, again, a slightly different environment, but it’s still . . . It’s just showing how different sectors and different interest groups are moving forward.

Most of my experience was certainly in the commercial mediation area and working with law firms. When I look back and reflect on how some of those big firms changed, I think, “Yes. That was quite a big move for them, strategically, to change the name above the door from “litigation” to “dispute resolution.”

It was done after lots of meetings and lots of analysis of what the impact of that’s going to be. As most law firms will know and you’ll know, Aled, but lawyers operate around fee targets and billable hours and litigation provides a very clear framework where you can conduct that.

Mediation is looking a bit nebulous. We had to work out ways in which any fear factors on fee income and revenue could be overcome and actually could work on, “Well, how can we integrate this and get a successful outcome and that case and a happy client?”

We might be 10, 15, 20% lower on revenue in that particular case, but that client will be happy and, therefore, they’ll maintain their relationship with the law firm and that’s good going forward. It was really trying to look at the bigger picture, as well. I think that level of discussion and interaction and focus was very important for a lot of law firms and mediators within those firms.

Aled: Yes. For thinking about one’s 30-second elevator pitch, you know, should we be talking
about, “we’re mediators,” or should we be talking about our expertise in conflict resolution or dispute resolution? You know, what goes into that 30-second elevator pitch, Mike?

Mike: I think what goes into it is the personal side. People buy mediators or buy people
because they’ve got confidence that you, Aled or, me Michael, whoever the person is who’s the mediator, is a trusted person and that if someone’s involved in a conflict, that they feel actually, “Yes. This person, I feel, could make a difference in helping us overcome a couple of tough nut to crack.”

It’s not a sales pitch, 30-second elevator pitch saying, “You must buy me. Here’s my card. Next time you’re in a dispute . . . ” You know, it’s not a sort of [glazing] sales or [glazing] window salesman’s pitch.

Aled: Not the transactional conversation.

Mike: Yes. It’s much more about the person. Say, “I’m trained as a mediator. Mediation is
about helping people find sensible, practical outcomes to difficult situations,” and if you just pick up . . . It’s not that you have to speak first, but if someone talks to you and says, “Yes. I’m involved in a pretty difficult incident at work,” or, “my business,” or, “my private life,” say to them, “Have you thought about mediation? Did you know this is how it works?”

Just very quickly and concisely be able to explain that. “It’s facilitated negotiation. No decision is imposed on you but we help you find your own solution. If it’s not me, it’s another mediator,” but talk about quickly about the process, and you’ll soon get a feeling whether someone’s interested in it or not. If everyone was able to do that, talk positively and say, “That’s what I would just encourage.”

Make sure, on your business card, if your partner in a law firm, put “partner and mediator.” If you’re an individual person, make sure on your business card you’ve got “mediator.” Have you got a website? How do you communicate the fact that, to the wider world, that you are mediator.

I would just encourage people, you know, join ADR Group. Become part of a network because that’s going to lend credibility to you as an individual. It’s going to give you an opportunity to say you’re part of a respected organization which is promoting mediation. You’re part of that movement.

That gives you, you know, an extra angle to promote when you do speak to someone, to say, ‘Yes. I’m ADR Group accredited. I’m senior accredited. I am Chartered Institute of Arbitrator accredited. People say, “Oh. This is not a cottage industry. This is something which has, you know, got real credence and strength.”

Aled: Yes. Yes. Yes. Networking events. Right? When I go to sort of mediation events, if it’s,

you know, I go there to network, hopefully to meet mediators that I can interview. I suspect a lot of mediators go to mediation networking events in the hope that they will network with other mediators.

I’m like, “No. You’re at the wrong event.” You want to be the only mediator in the room if you go to net-. What kind of networking . . .

Mike: You do. Yes. No. I totally agree with that. It’s tricky, but I don’t think you should
discard too much mediator network events, because I think mediation’s also quite a lonely area to be in. It’s quite a lonely space. The confidentiality of the process always means, you know, you are restricted about what you can say and what you can discuss.

It’s really useful for your own personal development to talk to other mediators. I wouldn’t knock mediator network events at all. I think you can learn a huge amount. “What did you do in the last month, Aled? How did you get your last three cases? Where did you get them from?”

The more you speak to people and the more ideas you get about other people in the same zone, you’re going to learn. I wouldn’t, as I said, knock that too much. I still encourage mediators to be part of any mediator networking groups that they can be, but don’t expect solely to focus on that and don’t expect too much work from that.

You’ve also got to have your other networking events where you join your local Chamber of Commerce, Federation of Small Business, breakfast groups, school groups, or whatever, and just, you know, don’t try too hard to get into every networking group, but be selective.

Think about where are your contacts? Where are your strengths? Who do you normally deal with? Do they all know that you’re a mediator? Have you had a chance to discuss it with them over a cup of coffee?

Just make every effort, choose every opportunity to promote yourself as a mediator to your own individual network. I think that’s where I’m coming from.

I think you’ve got to try to . . . You’ve got keep the two separate but they really feed off each other in terms of trying to get you, ultimately, work, which is what you invested in your training. You want work and it’s quite hard to get work. You’ve got to fight to get work.

You’ve got sell yourself as an individual, because mediation is about you as an individual, your reputation, your ability to communicate and to manage a discussion of pretty difficult issues between two parties or more than two parties as the case dictates.

Aled: Here’s the challenge I see, as well. You know, I was listening to David Richbell [SP]
talk about the qualities of an effective mediator and he talks about humility is a core quality.

Mike: Sure. Yes.

Aled: How do you, kind of, sell yourself and promote yourself when, you know, humility is at
the heart of what you do? There’s almost a tension between them.

Mike: I’ve had this discussion with David a number of times, actually, and I couldn’t agree
more. Like, humility is there, but you also have to be, you know, mediations aren’t going to land in your lap. If you just say “I’m a mediator,” and sit back . . . I always used to use the expression [with an open market], expect to be fed, that’s not going to happen.

Even a lot of lawyers for many years advertising and promoting legal services was not allowed. You never saw a law firm advertising this legal services because, traditionally, you know, lawyers were, as upstanding members of the community, you weren’t allowed to. You didn’t have to promote yourself.

Those notions of humility run across many years of tradition and I think the same as in mediation. I’m not saying to you you’ve got to stand at a traffic light intersection and walk across the road and try to speak to people saying, “I’m a mediator. Mark told me to talk to everyone at traffic lights.” That’s not what I’m saying.

Aled: [inaudible 40:08] I’ll clean your windscreen.

Mike: Yes, yes. Here’s a card. Use your own networks, maintain your humility, but you’ve still
got to promote yourself. You’ve still got to say, “I’m a mediator. I’m available for instruction and this is how you can get a hold of me. This is what I do. This is what the process does. You know me as a person through my other professional background but I’m also a mediator now.”

Yes, you do have to challenge your view on humility to a certain extent but you’ve got to make yourself known whether it could be speaking engagements. It could be writing a blog. It could be commenting for a local village newspaper or a national newspaper.

There’s lots of different ways you can raise your own profile but you got to do that alongside whatever professional affiliation you have with ADR Group, CEDR, Chartered Institute of Arbitrators, etc. That will help you at one level. You’ve got to help yourself at the other level and that means telling people this is what you do.

Aled: Is there something else that mediators can do to develop their brand? I guess I’m
thinking about, how do you distinguish yourself from other mediators in the market? Do you go down the route of, “I specialize in a particular dispute or in a particular culture”?

I’ll give an example. I got a call the other day from a lawyer looking for a Welsh speaking mediator. There can’t be many of us out there.

Mike: There can’t be many. There’s a rare breed. [Inaudible 41:54]

Aled: Welsh people, you know, they don’t like to talk about their conflict. I think we’re a
passive nation, either conflict avoidance or if you go right up into the deepest, darkest valleys, their slugging it out on a Friday night outside the pub.

What else can we do to shape our brand to get our brand out there?

Mike: That’s a very good question. It’s something, again, which I think I’ve touched on when I
spoke at the mediators breakfast, but this idea of specializing as mediators. I think, in a way, going forward, it’s inevitable that mediators will become more specialized.

I think half of me is saddened by that concept because a good mediator is a person who can communicate effectively and has really good dialogue skills. First off, you’re not being appointed as a specialists. You’re not being appointed as a judge to determine issues. You’re being appointed because you’re a good listener and you can help people with their problems.

By inference, you should be able to do any type of dispute, but, the reality is that people expect you to be fairly clear on the type of issue that’s being discussed. I think it does help and, certainly in my experience it helps, if you are knowledgeable about the area or sector of dispute, not so that you can point the parties in a particular direction or influence the discussion in any way.

Simply because your knowledgeable about, “This is how the lay of the land is in this type of area and, in my experience, I’ve seen 50 of these types of disputes. If you were to go down the route of “X,Y and Z”, this would be a probable outcome. Are you comfortable with that? If we aren’t able to settle today, this is probably where you’re going to be going.” Help people with trust and confidence in that process.

I think, in terms of people developing a brand, I think you’ve still got to be a generalist at your core. I think if someone comes to you and says, “Could you do this certain type of dispute?” You’ve got to take a view on it, whether you actually, genuinely feel it’s within your experience you know, any workplace issue, Aled, you’d be able to do comfortably, because you’re familiar with that area.

You know how HR works. You understand how the unions operate in big organizations. You understand what business metrics drive the employment relationship and you can speak with confidence.

If someone were to contact you tomorrow and say, “I’ve got a very technical intellectual property dispute, regarding the ownership of a mobile application that I’ve developed and someone stealing the intellectual property. Could you come in mediate that for me? It’s worth millions of pounds. Would you feel comfortable doing that?”

You, yourself, as a mediator have to ask yourself that sort of question and part of you might say, “Well, yes. I feel I do have the skills to facilitate that,” and as long as the parties know you don’t have the detailed intellectual property law background, if they’re comfortable with that and they bring that knowledge to the table with their own advisers.

You can deal with that but you might say, “Actually, no. This looks a challenging bit but I know a person who can help you,”, that’s where the value of a network comes in, because you want people to have good and positive experiences of mediation.

Looking at other jurisdictions around the world and seeing how these areas of specialization are developing, I think we are, our clients are going to expect you to have an area of knowledge around the dispute, in a way, that’s going to limit you to a certain type of dispute category and you will be pigeonholed in there, possibly. It all depends on how you do it.

I think it’s an area that’s going to develop over the next few years. I think some of the very big names in mediation in the U.K. at the moment are probably lucky in the sense they’ve got the gravitas and the knowledge to do a broad number of cases across lots of different sectors and backgrounds.

Whereas, you’re more newly-qualified mediator’s probably going to struggle with that same level of gravitas and experience to talk through any number of situations.

My advice to newly-qualified mediators would probably be to choose one or two areas where they feel more comfortable practicing in and focus on that. Don’t take off more than you can chew or handle in your early days.

You can always develop or widen your practice in due course, but develop a name and reputation for doing mediation in areas which you are competent and comfortable, in the early stages.

Aled: Yes. I want to move onto pricing. I did some research recently into pricing. I’m really
trying to understand why the rewards for mediation were concentrated in the hands of the few and I’m specifically thinking about sort of commercial mediation.

One theory is that mediation is a winner-takes-all market. You know, there are special conditions on the supply side, supply and demand side of the curve that sort of reinforce this market phenomenon.

If we think about on the demand side of mediation, where you’ve got economic buyers who invariably are lawyers, to what extent are they motivated by the avoidance of adverse outcomes from appointing the second best mediator?

They’d rather go for someone who’s well known in the legal profession and legal circles to kind of reduce that risk but if there was an adverse consequence, at least they can be reassured that they’d bought the best. Now, to what extent is that an issue and what can we do to get around that?

Mike: Yes. Again, it’s a perennial issue, which is discussed at conferences probably around the
world. Looking at the U.K. context, I think, yes, there is an element of sort of risk avoidance and mitigation on the purchaser’s side.

Those procuring or commissioning the appointment of a mediator are going to look for the best mediator for their client on that particular case. The principal issues that mediators or commissioners look for, I think this is borne out by the Seeger [SP] research and I think the Civil Mediation Council’s done quite a lot of work on this. It really is the experience and reputation of the mediator.

If there are people who are proven to be good communicators, have handled mediations effectively, those, almost before price and availability and other things and I think it’s becoming less of an issue because, I think, the market is expanding.

There is more and more mediation happening and I know we’re going to have a little chat shortly about regulatory issues but there some huge changes coming along in the legal profession over the next two years, again, with the Jackson reforms.

The reality is that the top mediators can’t do all the work. The mediation appointments will cascade down to second and third-tier mediations and mediators. If you just look in Chambers Directory or Legal 500, you see new entrants coming along all the time.

I see there’s still a bit of the 80/20 rule that 80% of mediations are being done by 20% of the mediators. I think it is changing. It naturally is going to change. How quickly it will change, it’s really difficult to put a figure on that.

I think the reality is there will be more mediation. There are more good mediators coming through and as that will start generating, you know, Malcolm Gladwell’s tipping point.

I think lawyers are at risk of diverse profession, by nature. They like to assess every situation and how they’re handling it appropriately and professionally and part of that risk-averse or risk management culture in governance is implicated in how they appoint a mediator or an arbitrator.

The reality is they can’t use a judge on a case. They can use a mediator, but I think there will also be price pressure points. Not everyone can afford a mediator at £500 an hour whether some perfectly good mediators who can do it for half that or less than half of that.

I think as more and more people get out and the profession matures, which I think it is maturing fairly rapidly, I see price and seniority and experience becoming less of an issue, as long as training is done competently.

There’s still a quasi-regulatory framework regarding the practice and accreditation side of mediation. As long as the public has confidence. It’s fairly easy to identify the cowboys in the market, the cowgirls, but, hopefully, there won’t be that many, because it’s developing at a fairly measured and on a professional footing.

Yes, my view on that, it is an issue. I know people get pent-up about it, but, you know, I’ve always had a pretty brutal view. You don’t cry over spilt milk. There’s very experienced mediators in London who are doing a lot of work. They started 20 years ago. They struggled for the first 10 years. People often overlook that.

When everyone was calling these weird anoraks who tried to change litigation practices to dispute resolution practices, they went through hell to promote the process, but they succeeded. They got in the early and there at the top of the ladder at the moment.

They’re doing a good job, making good money, but they’ve got there through a lot of sweat and hard work and that’s easily overlooked by a lot of people.

I think it’s just natural market phenomenon. They’re not going to always be there. They can’t do all the work. The market is expanding. The market is maturing. Where will it plateau out? I don’t think anyone knows.

I think people make too much of an issue out of this 80/20 split. Why are all the big mediators getting all the work? Well, they’re good. They started a long time ago and they’ve got a good reputation. You know, just accept it. Move on. Create your own brand. You know, develop your own relationships. You will succeed if you want to.

Aled: Yes. Yes.

Mike: That’s sort of the message. You know, you’ve got to be fairly pragmatic about it saying
the big mediators, they didn’t just open up their practices yesterday. You know, they worked very hard to get where they’ve got to and it’s like a Ph.D. and a barristers environment. You know, they’ve got there out of effort and recognition from their peers. I think it’s a very important point to make on that.

Aled: Yes. Just very briefly, what’s your advice on fee setting for a newly-qualified mediator.
How do they pitch it? Are they flexible? Do they compare themselves with others? What’s the approach for doing that?

Mike: I do think you got to be flexible. I think, on one hand, it’s a balance between not
undervaluing yourself. Your professional in your own right. You should command a professional fee but you got to moderate your fee expectations, vis-‡-vis your experience.

Have you done no mediations, 10 mediations. There’s a lot of pressure for newly qualified mediators. Say, “I’ve invested this money. I need to get a return on investment. I need to do 5 cases a year at 250 pounds an hour,” and they go into that.

there’s a lot of mediators in that zone, a lot of people who have similar levels of experience, similar charging structures. How can you be different? Do you do pro bono work? Do you get involved in some of the [inaudible 56:01] schemes?

Should you be looking to structure a mediation where there’s no-win-no-fee. You know, that’s been frowned upon by many of the political and legal commentators that “No, we can’t.” There’s no decision-making process involved in mediation. It’s very difficult to do a no-win-no-fee model but there are very successful running where that does work.

I think your pricing model, you’ve got to be flexible. Your key selling point to being good mediator is reputation. I know from the late ’90s and early 2000s, a lot of very successful mediators now.

They got their flying hours doing court-based mediations and after hours from 4:30 to 7:30 for 50 quid. They did 20, 30, 40, 50 of those mediations to build up their experience and they didn’t make any money out of it. If anything, they got their train fares from Newcastle and Cardiff and Birmingham covered to get into Central London County Court.

That’s where they learn their skill and, you know, to simply say you got your accreditation and there for you are entitled to mediation at £250 an hour is tough.

You’ve got to be flexible and you’ve got to find . . . Each circumstance of each mediator’s different. If you’re a mediator within a law firm, your time is valuable to you and your colleagues. You’ve got [inaudible 57:45] targets to meet.

The pressures are different for someone in an employed or partnership structure to someone who’s recently retired or younger and going down a different professional route, where they might have different financial pressures and they might say, “Well, actually, I can afford to do mediation at £100 an hour or £50 an hour for the first year, just so I get experience, because I can see, if I can get past 10”, which is generally the minimum number of mediations you need to do to be at least semi-experienced.

You’ve got to find a way of doing those as quickly as you can, and if that means being flexible on fees, that’s what you’ve got to do. My advice would be it’s down to each individual person, but getting the flying hours is more important than the money, in the short term.

Aled: Okay. I want to come onto now, you know, regulatory environment changing and what
opportunities at my present for mediators. I did a paper for the Chartered Institute of Arbitrators’ Mediation symposium last year, where I compared mediation as a product or service or the development of the mediation market with the development of tech, new technology products.

How you go through, you have early adopters and then you have the Bell curve mainstream market. I think mediation is still in early-adopter phase as a product.

There are some that are willing to take a risk and give it a go and there are generally the kind of mainstream market to either don’t know enough about it or are just happy with what alternatives are out there, which is, you know, litigation or do nothing and face the consequences.

You know, what’s happening in the market, Mike, that might mean that mediation could shift and become a mainstream sort of product or service?

Mike: That’s a very good question and I think, obviously, it’s something which has been looked
at by many, many commentators and academics and practitioners and I think the Jackson reforms are going to pose a number of opportunities for mediation.

On one level, if we just look at the base type cases, the small claims limit is being increased from £5-£10,000. There is currently a very successful small claims mediation model run within the court system by the ministry of justice and that’s going to effectively have to doubling its capacity, if not even more so.

Will the existing court-based trained mediators be able to cope with that increase in capacity? I’m not sure. I have my doubts.

There will be probably a need for some of those mediations to go into the private sector. Are organizations, are mediators, are groups of mediators going to be approaching courts to say, “We can do some of these mediations, which are overflow mediations from your court-based scheme and we can do them for free. We can do them at pro bono right. We can do them at a low rate.” There’s lots of opportunity on that side.

I think if you look in the personal injury market, the reforms which are, obviously, huge on there are going to create pressure for parties to settle cases earlier. Mediation, undoubtedly, has a role to play in that.

Lord Justice Jackson made a couple of recommendations concerning mediation in his report about the need for a directory and a guide and certain ways of promoting the further education of the legal profession and mediation.

They didn’t per se adopt mediation as an integrated part of reforms, but certainly, they provide a very general endorsement for mediation.

I think it’s down to the mediation community, in the broader sense, to respond appropriately in picking up opportunities there and not being seen to take work away from lawyers. That’s going to be counterproductive.

The legal profession’s a very well-respected, well-structured professional body. It’s going through reform. It’s going through change. It will be looking at every opportunity and the mediation community being part legal already, I suppose, has one foot in the door.

How they are able to facilitate the implementation phase of Jackson and smooth over the edges is going to be very interesting. I do see there’s going to be a lot of litigation and uncertainty and collateral damage coming as a result of Jackson and some unavoidable, some avoidable, but how it’s managed and how it’s resolved is going to require lots of different stakeholders.

Lots of different people working together, because the underlying principle of what Jackson stands for is very positive. It’s very plausible. It is a required change.

How it beds down, how it gets adopted, is going to require a lot of work and I think there is opportunity for the mediation community to get in there. I don’t think it’s black and white saying, “Look. All mediators, there’s the door. Everyone run through that door.” It’s not as simple as that.

I wish it was but I do see that there will be further opportunities over and above, you know, a general, broader acceptance of mediation taking place. I’m working with the ADR Group and other mediators are working separately, I know, to try to identify what sort of opportunities are available for mediators, post implementation of Jackson.

It’s just another stepping stone in the evolution of mediation. Hopefully, Mr. Gladwell’s tipping point is not going to be far away.

Aled: You talk about tipping point, I was listening to Radio 4 the other night and they were
talking about the “nudge concept.”

Mike: Yes.

Aled: Are you familiar with that?

Mike: Yes. I am. Yes. Yes.

Aled: Yes. Encouraging small changes of behavior or enforcing small changes of behavior
until something, until you get a bigger shift. Almost if you’re moving that, moving the market to a tipping point.

Mike: Yes. Yes.

Aled: You know, it’s almost as if you talked about one of the core values of mediation, free
and informed consent, how it’s the strength of mediation. Also, you know, it could be a barrier in terms of moving this profession forward.

Mike: Yes.

Aled: To what extent can we coerce parties into mediation? How can that be done in a way
that’s consistent with the core values of mediation but helps parties reach an outcome?

Mike: I think there are and I think, as in any process, there are positives and negatives. My
experience as a mediation enthusiast, obviously, see more positives than negatives, because I’ve been involved in the process for a long time and I know its value and the value it can bring to the table.

I also recognize . . . I’ve seen enough instances where, you know, people often talk about mandatory mediation. Should we be adopting that? You look at the experience of other jurisdictions, it does vary.

I think it’s wrong to say it won’t ever work, but a very good friend of mine, the late David Shapiro, always use the analogy about, “You can take a horse to water but you can’t make it drink,” but if a horse is in proximity to water, they probably will drink.

His argument is always very strongly, we should try to move down the route of some form of mandatory mediation.

At the moment, not enough people know about it. It’s just an option. People are just told about it. They don’t really understand what it brings. Whereas, if it’s something which everyone has to go through, so it’s an opt-out process, as opposed to an opt-in process, it would make a difference.

I think those sort of incremental changes absolutely are consistent with the nudge principle saying, “If we can just get more people coming to the water table, there will be more of them who will slowly start drinking,” and you’re eventually going to suddenly get to that point where it does tip. That’s not too long away.

Aled: Yes. Yes. Absolutely. Absolutely. Of course, embedded in the notion that mediation
shouldn’t be mandatory, is the assumption that if it was, it would be problematic. I think that’s a massive assumption not to be tested out, at least in some way.

So creating the expectation that you will mediate and you can choose not to accept an offer that doesn’t meet your needs but the expectation is that you go through this door.

Mike: Yes. That’s right. I think the biggest objection to that sort of mandatory mediation
approach is really the notion that if it becomes just a [tick box] exercise that, “Yes, we’ve got to go through mediation,” and you’re forcing everyone through that door, it will lose some of its gloss.

It’s not suitable in every case. There are certain cases which do need to go down a judicial intervention route and there’s some cases where settlement is not an option. You could tarnish the real value of mediation if everyone is forced on that route.

That’s why I said it would be probably better if it wasn’t quite mandatory but it was an opt-out instead of an opt-in procedure. You’re probably getting closer down that route of raising the awareness of mediation to a much broader group of stakeholders and users.

Aled: For example, workplace mediation, some organizations now are writing into their HR
policies, you know, before you enter a formal process, a grievance process, you will have a facilitated conversation as a starting point, to see where you get to.

You escalated to, still, an informal process but the expectation is that “This is what we do in this organization before we [consider] this level.”

Mike: Yes. I’m aware of that and I’ve seen quite a lot of policies which have been drafted on
that sense and I think it’s going to take time but it’s going in the right direction, which is really, really encouraging.

If that can happen in other . . . I mean, on family law, you’ve got the [Mayan’s] meetings as mandatory information and assessment meetings, [inaudible 10:02] mediation information at assessment meetings, which are required process to go through.

I think they’re starting to show real value in informing and educating separating couples and divorcing couples about, you know, the real value of mediation. Is it making a huge difference? I think it’s too early to say, but it certainly is making a difference.

I think all the small, incremental steps and different practice areas are all to be encouraged and they are all effectively going in the right direction of saying, “This process is good. It is credible. It brings real value to the table and should be used more.”

Aled: Yes. Yes. Look, my, I’m really conscious of time. You’ve already given me, you know,
a lot of your time this morning. I want to kind of bring our conversation to a close. Before I do that, I wanted to quickly, you know, where are you heading in terms of your career?

I know you’re working in the family business now, but you still got your, one foot in the mediation profession. Where do you want to go with your career because, you know, you’re still young guy? Right?

Mike: Yes. So, some people say that. I’m still very open-minded about exactly where I go. I
think my competencies and my passions still line mediation. I still believe in the process. I think there’s a lot more which could be done to raise the importance of mediation across, sort of, the key stakeholders of government and the judiciary.

I think there’s more work which could be done there to really articulate the real value of mediation to both community and business and, therefore, the broader economy.

I think, you know, the fact that we’re still in a recession since 2008, I think there’s a lot that mediation can do to facilitate, business facilitate dialogue, create movement. I think it’s very easy to sit behind professional advisors, be they lawyers, accountants, etc.

Business owners and entrepreneurs and people who want to move and grow their own lives and businesses and environments, sometimes just need the help of open dialogue and communication and that’s without it being sort of evangelical.

I think there is a lot more that mediation can do to help stimulate business growth and that sort.

I see myself as being involved still in that. I’m still, as I say, passionate about it. I love my family business, as well, which is nothing to do with mediation. It’s “The Garden Center” and it’s very close to my profession of being outdoors and living outside.

I think, in terms of mediation, it’s got a great future and I’m going to be involved in supporting it in one way or another. I look forward to being involved in the future of its success.

Aled: Yes. I think, certainly, the profession’s going to be better off with you in it, than out of
it.

Mike: Thank you very much. I love the people I work with and have worked with from ADR
to all the other big professional mediation bodies to the individual mediators, to the judges, to, you know, lots of folk in the Ministry of Justice and international connections.

There’s a lot of goodwill in mediation and it’s worth capitalizing on that, because it’s a great process, with great people involved, like yourself.

Aled: Thank you, Mike. Look, I know people are going to want to reach out to you, say
“Thank you,” maybe connect with you. How can they do that? What’s the best way of reaching out to you, Mike?

Mike: Really, the best at the moment is through LinkedIn. I think it’s . . . I really have very
close links with a lot of people through there and that’s probably the easiest, just to make contact through my LinkedIn profile. If I can help in any way or be involved in individuals or organizational development, I’m very happy to do that.

Aled: Fantastic. Okay. I’ll put your LinkedIn profile link underneath the interview on the
website.

Mike: Yes. That’s cool.

Aled: Look, I want to be the first one to say “Thank you.” I really, really appreciate your
investing your time this morning. It’s just been a really interesting interview. I’ve written three pages of notes here. Which I’m hopefully going to try to make sense of.

There’s been lots of useful tips, tools and advice for mediators and, next time, we’re going for the grand slam. I’ll come down to your neck of the woods and we’ll have a pint and . . .

Mike: That sounds excellent. And congratulations to Wales fantastic tournament and what a
classic way to lift the silverware with their crushing victory over the men in white.

Very well played to Wales and I’m sure England will be back fighting for the silverware next year. But, in the meantime, I hope the Lions do well down south and I’ll be watching that with great interest.

Aled: Brilliant. Brilliant. Mike, thanks ever so much.

Mike: Nice to speak to you.

Aled: Okay. Great.

About the mediator

Mike Lind Profile Pic

Mike is an Internationally recognised authority on mediation and dispute resolution. He started his career as lawyer in South Africa in the mid nineties, came to the UK shortly after that and joined the department of trade and industry as a insolvency and corporate recovery lawyer. It wasn’t long after that he left his legal career to leaving join one of Europe’s leading specialist providers of mediation and dispute management services where ... View Mediator