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Go Wide Or Go Deep? A Mediator’s Dilemma

Go Wide Or Go Deep? A Mediator’s Dilemma

This is a dilemma that every mediator starting out might encounter. Should I become a specialist in a particular area of mediation or should I accept any and every mediation that lands on my desk, regardless of the nature of the dispute? I don’t know if there’s a simple answer but this interview with Phil Hesketh might help you make up your mind.

This is Part 2 of a 2-Part interview with Phil. Watch the first part here.

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Transcript

Full Transcript

Aled: Okay, coming up. What disputes are you most and least suited to as a mediator and how could you find out? How do we, as mediators, manage the dilemma of, on the one hand, needing to mediate anything just to put bread on the table, to becoming a respected authority in a particular mediation niche. All this and more, here’s the interview.

In the first part of the interview Phil, we talked about the journey that you’ve been on, some of the lessons that you’ve learnt and are still learning. And in the pre-interview chat that we had, you said to me that you felt a pull towards a particular type of mediation that you want to do. You talked about being less interested in the kind of fixed-pie mediation and more interested in the real people issues. You talked about contemplating, learning transformative mediation. You felt that you were gravitating towards that approach and towards a particular market.

And in the first interview, we kind of touched upon focusing in on a particular market, understanding your market, who are your customers, who’s going to buy from you. It’s not every Tom, Dick and Harry, you need to be really specific. So, I guess in this interview, I really want to understand a bit more about the thinking that goes into finding your niche, if you like. How do you identify that niche? Is it just a hunch, a sense that one has? Do you think it more strategically? Do you look at a particular market and go ‘I think there’s a problem here that I could solve’? Or do you go ‘I’ve got expertise in this. Let me go after that.’ So, tell me a little bit about that sort of journey from wanting to move into that particular market.

Phil: Well, first of all, it comes back to starting out and looking at information and I’m being advised to find a niche. I’m looking at this and thinking ‘Well, no. I’m just starting out. I need to do whatever mediation I can.’ And so, I understand the reason why you say ‘find a niche.’ It sounds very logical, but it’s simply not practical. So, that’s one of those things I’ve looking at that advice and deciding to do the comfort zone of just accepting any work that comes in.

Aled: Tell me why you don’t think it’s practical?

Phil: Simply, at that stage, I was thinking ‘Well, I just need every job I can do.’ And so, what that means is that you do the type of work which is not your best type of work. We looked a couple of weeks back at the types of what you do best, when you excel. So, picking a niche is about that. It’s about identifying an area where you’re going to produce your best work and you’re going to have the best value. It’s now refined for me into a couple areas.

One is the personal injury work. That’s my experience, that’s my expertise. So, I bring expertise to those disputes from my experience of 18 years or whatever it was, litigating. And the mediation experience I have of doing that work. So, that’s one area. That might be a reason why you pick a particular niche. You’ve got an interest, an experience. That’s one area.

The other area for me, now, which I wish to look at and concentrate on, is what I roughly call ‘people disputes.’ Where there has been a relationship, but the relationship has broken down. And it’s manifested in a dispute, which may be about the mother’s will. Or it may be about division of partnership assets. So, there is a clear substantive dispute who inherits the estate, etc. But underlying it is a broken relationship.

Now, my attitude has always been to resolve the dispute. And if, as a by-product, the family are talking to each other again afterwards, then that’s been a happy by-product. I’m interested now in looking at this slightly differently. Yes, we want to resolve the dispute. But is there some value in approaching it as transformative. I say ‘transformative,’ simply because we’re transforming the way people have reacted or worked together or had their relationship together, into something different. Because it’s not working at present.

So, I think I do my best work when I’m working with people who are heavily invested in the dispute for whatever emotional reasons such as a will dispute or a partnership dispute. If I did matrimonial work, that would fit in the criteria. I don’t do matrimonial work, but it’s that type of…

Aled: Why do you think you do your best work when you’re in that sort of context?

Phil: It’s the relationships I can develop with people, with the parties in those disputes. I think that I am capable. I do create an atmosphere where they can speak to me, can trust me. And that creates the atmosphere needed to investigate what’s really important to that dispute.

Aled: So, you feel almost like you’re ‘in the zone’. And what I mean by that is that you are really performing at your very best when you’re in that situation. You’re in the zone. You’re in a flow state. You’re saying all the right things, doing all the right things. Authentically, I’m not sort of, you’re just present, alive.

Phil: I’m going beyond ‘Well I’ve been taught to do this, so I’ll do this for this reason.’ But it’s a much more instinctive certain times reaction in my situation or proactive behaviour through an understanding you’ve obtained from the people that you’re working with.

Aled: Okay. And do you think your experience as a lawyer, in the field of personal injury, has sort of given you that orientation?

Phil: No. I’m a lawyer. I call. It’s a completely different mindset to mediating and in the mediation room. So, however long I was in practice, I never once asked the client what did they want. They come to me with an injury and I assumed they wanted as much money as possible. And so, that’s what I sent out to do.

And the mediation dispute. The vast majority of them, resolve – the answer is not the solution, it’s an old cliche. But what I’m talking about is what happens in trial. Probably, there’s no resemblance to what happens in a mediated settlement. Because of trial, often one side will be right and one side will be wrong. And you’re never going to get the parties to agree to one party being right and one party being wrong. So, the legal, the technical answer, will never be the solution in mediation.

But that’s the mindset you come to it, as a lawyer. You’re looking at the facts, you’re applying to the law, you’re applying precedent and your estimate of how it’s going to appear in court and so on. And you’re putting all that into your work. In the mediation, it doesn’t apply. Because if they wanted that, they would go on and as the Judge to sort it out for them.

Aled: I guess I was asking, whether your experience in that field as a lawyer for 18 years. Because, I’m thinking if I’m a mediator watching this now and I’m thinking ‘I want to try to figure out where I’m most suited. Where I’m at my best.’ Do I look at the last 18 years of my previous career and say, Okay. That particular aspect of dispute or this area of construction or medical negligence, whatever.’ Do I draw on that experience or do I go with some kind of gut feeling around the work that I want to do? Is it a combination of logic and our heart? What would you say?

Phil: Well, doing the personal injury work, I loved being a personal injury litigator, I loved going to court. It didn’t happen very often in the latter days. And so, I loved that feeling. I liked working with the barristers and the solicitors and the client. So, I liked that whole environment. And so, I was comfortable with it. And that’s a driver for me to retain and to want to continue doing the personal injury work.

There’s also some authority. I’m not saying there’s huge authority. But the experience does bring some authority with that. And some people may have a confidence in you. Not that you’ll be making a judgment on the case. You understand the language and you understand what it is. So, that’s all arguments for doing something which you have experience in. And a wish to retain that and a wish for that to be a part of my niche.

Then the other thing, it’s come to me, really through experience of looking and understanding the types of disputes and the aspects of those disputes which I feel I work best in. I enjoy as well is important for the future. So, either you can do that self-assessment when you’re starting out and deciding on a niche. If you’re capable, if you’ve got the insight to do that, if you’ve got people to tell you about you and say ‘Oh, you’re really good in this type of situation.’ Then, that might point to a niche area for you. Or, in my case, in that aspect of the niche, it’s through my own experience.

Aled: Okay. So, another way is to go out to friends, colleagues, family and say ‘Look, I’m thinking of going into mediation’ or ‘I’m in mediation, but I’m trying to think what I’m best suited to. Give me some feedback, tell me what you think my best qualities are. Tell me what you think.’

How about this? If you’re in a dispute or a conflict, what kind of conflict would you want me to be involved in as a mediator? And what kind of conflict wouldn’t you want my help with? That might be interesting.

Phil: Sure. Very interesting exercise to do. And if you’ve got people to speak frankly to you, I think you’d learn an awful lot from that.

Aled: Yeah. I did a interview recently with Bill Marsh. By the way, if you’re watching the interview and you haven’t seen it yet, go and check the interview with Bill Marsh out. That guy has got some experience behind him. And he talked about ‘being the non-anxious presence in the room’. Being the one person in the room that, despite all the carnage going around you that just held everything together, not by saying anything, but just being really comfortable in that place. And I think I was talking to him about being able to say ‘Bill or Phil or Aled.’

If I was in a mediation and it was around a catastrophic personal injury, I’d want Phil in the room. I wouldn’t want anyone else. I’d want Phil in the room. Or if it was a mediation. If I was in a mediation and I had a dispute with a sub-contractor on my builder, the guy building my house, the last person I would want is Phil, because he would just be all empathetic and that’s the last thing I want. It would be good to know that, right?

Phil: Yeah. Absolutely.

Aled: It’d be good to know that. So, there’s a task if you’re watching the interview, there’s a task for you. And it’s definitely not a task that’s in your comfort zone. It’s an outside your comfort zone task.

Phil: And added to that difficulty is the fact that if people are starting out, they’re saying ‘Well, I’ll mediate anything. Just bring it on.’ And there’s a huge incentive to want do that and absolutely go there. But it’s about identifying to what you’re going to do best. And so, if you do your best work, people are more likely to want to come back and use you again.

Aled: Okay, so what you’re suggesting is rather than start out and go ‘I’ll mediate anything.’ To right from the outset, from the ‘get-go’ as they say in the U.S., which I love. From the get-go to go right ‘I’m not going to do everything. Here’s what I’m going to do. I’m just going to focus on that 1% of personal injury claims that are really, really tough. That’s all I’m going to focus on.’ And go after that with tenacity.

Phil: I’ll do that, because that’s the thing I’m going to really excel at and that’s what people will appreciate. ‘This isn’t just an ordinary mediator. This is somebody who’s added this and the other and we’re going to back to this person. And what’s more, we’re going to tell other people to go to this person.’

Aled: Okay, so let’s say you’ve identified the need.

Phil: But, I appreciate Aled, that’s a huge, huge risk. Or if I can understand that people want to say ‘Whoa, there’s bills to pay.’

Aled: Well, there are bills to pay. And I’m not suggesting, by the way, that if a case happens to land on your desk, that you go ‘Oh, no. That’s not within the 1% that I won’t to do it.’ Because I think you need experience when you’re starting out. What I am suggesting is, from the get-go, you get very strategic and have some specific goals. You keep slicing, they talk about going wide or going deep in terms of marketing. Rather than going wide, and go ‘I can do any case. Yeah, I can do any case, but I’m only going to focus my efforts and energies and resources in finding this thin slice. Finding the opportunity, creating, becoming the trusted authority, the recognized authority as a mediator in this field.’

Phil: ‘So, who’s the boundary dispute mediator? Oh, it’s Jim. You need Jim. He’s brilliant at boundary disputes.’ And if you’re known as that person, then, A, you’re going to be doing the work that you want to do. And you’re going to enjoy doing it and you’ll give it your best. And you’re going to add an awful lot to the people who buy your services.

Aled: As you’re talking now, I’m thinking it will be great, again, to be able to break this down into, first of all, how do you identify that sort of thin slice? And then, how do you become the respected authority in that field? What are the tasks that you need to do? So, I’m thinking, do you set up a LinkedIn group in this field? Who are the target market that would be the economic buyers of that service? Where do they hangout, what are their issues or their concerns? How do you start marketing very specifically to that group, what kind of content do…? So, it would be really interesting to break that process down into a series of steps. Because, again, it’s hard starting out.

Phil: Yeah. So, you’ve identified the niche. So, you look at who’s going to buy those services. For the personal injury field, it’s always the solicitors. A person who’s had an injury does not ring up a mediator and say ‘I’ve had a terrible injury. The insurance company won’t pay me what I want. Can you please help us’? No. They go through solicitors.

So, you then identify, clearly, who are buying these services. It’s not just the solicitors, though, barristers, as well. Because they’re very involved in the decision of whether or not a matter gets referred to mediation. So, you identify clearly. And every message you send out, you have to think this is going to be consumed by a person in target ‘A.’ And where are they? You have to identify where they hang out. And you have to be there. And then, you have to establish authority in that field. Whether it’s by writing articles in the publications or a blog or speaking at training events or delivering training.

So, that people have confidence in your authority. Not just in what you might know about personal injury law, but what you know about mediation. So, it’s identifying the work, the people who are going to buy that work and creating that authority. There are three stages.

Aled: Okay. It sounds like a big part of this process is education. It’s really interesting. I did an interview, yesterday, in fact, with someone in Tel Aviv who works for an organisation that does multi-track diplomacy. And the first stage in their process is education. And they go out and they educate people to give them a language for mediation. To give them a concept. Because before they can even start imposing this process on anyone, they need to give people a language, it was really interesting, actually.

I was always thinking ‘What lessons could I take from this’? And apply to what I do and what others could do. And it sounds like what you’re saying, you’re talking about speaking at conferences or running training events. That’s education, but it’s also, implicit in that, is that if you’re the speaker, you’ve got some authority in that field.

Phil: Yeah, and absolutely making sure you put into the speaking engagement, every effort you would put into mediating. So, it’s not reading boring PowerPoint slides, which people can read for themselves. It’s about thinking about how you get into that and engaging with people in the training and not lecturing. You only get one shot at it really, or if you do it badly, you only get one shot.

It’s an opportunity. It’s an opportunity for you to showcase your personality. Because a lot of selection of mediator is about personality. It’s an opportunity to educate, not just about the process, but how they can best be effective in the mediation. And how they should prepare. And the simple fact that they must prepare is a key educational fact. All of that comes back to, then, if they’re using you, that you’re already set up to do well at the negotiation. Because they know what it’s about. They know what to expect. They know how to prepare their client. And they know how to prepare themselves.

Aled: Okay. All right. So, I’m wondering if you’re watching the interview now and you think this is an area that you’d like more to be developed further, just let me know in a comment below. Because I know from my perspective, certainly when I started out, I struggled with this Phil. I can remember spending more time making sure that my templates for mediation agreements were refined. Making sure that my C.V. was updated. Doing all the things. I’m sort of referring a little bit back to the interview we did earlier.

And not really thinking about and also, being so desperate for work, I would do anything. And I did and, okay, I put bread on the table and it was a priority, it was a requirement. But it was a distraction as well, because I didn’t specialise early enough. And I’ve got round to specialising now. I’ll give you one example.

One aspect of my consultancy is I do executive coaching. Not a great deal, it’s a proportion of my revenue. But I would be invited to these panel interviews to big FTSE 50 companies to be one of their panel of executive coaches that would coach senior execs. I used to dread these things. Because most of the people that we’re also interviewing, they were former M.D.’s of organisations. They were in their later years. And I thought ‘What could I bring to the table that’s going to make me stand out’?

And eventually, I decided. When I cottoned on to I needed to focus in on a niche. And I knew it was, but I just didn’t do the things that I knew were good for me. I went to one panel interview with a big company, I won’t say who it is. And at the interview, they said ‘So, tell me. Tell me a little bit about your coaching. What sort of work do you do? Is it leadership, strategy’? I said ‘I don’t do any leadership, I don’t do any strategy.’ I can’t remember, they gave me a list of things. ‘All I do is conflict. If you’ve got a conflict in your organization between people, that’s what I do. Don’t ask me to do anything else. I won’t do it. That’s not my area.’ And the reaction I got was very interesting. It was ‘I’ve never heard of that before. Tell me more.’ So, I could give a couple of examples of where I’d worked and the assignments that I’d done and the outcomes that I’d reached. And they said ‘We’ve never had anyone.’ And it was really interesting.

I started getting on these panels. And what was also really interesting was the assignments that I was getting weren’t necessarily conflict-related. They had to do with leadership and they had to do with strategy. But because I stood out in people’s minds, they remembered me. And they thought ‘No, actually, I really connected with this guy.’ Because I had an opportunity to talk about my passion, they got more of me. I was less preoccupied by how I came across. And that was a big lesson for me to be really transparent. To have a little bit of courage in those conversations to say ‘You know what? I’m not interested. Here’s what I’m interested in. Why? Because this where I think, this is my groove. This is where I’m at my best, this is where I can add the most value.’

Phil: Yeah. It’s brave, but I think it’s the right thing to do.

Aled: And it paid off. It paid off, definitely.

All right, Phil. Look. I mean this. I really appreciate your time today. And for you being really, really open in both interviews. I know people are going to get a lot of value from this. I know people are going to be really excited about the follow-up interview and accountability. And I really appreciate you doing that. And I’m really hoping that you’re going to get value from it.

I want it to be a valuable thing for you to be able to say ‘You know what? Putting myself out there. Holding myself, your audience holding me accountable,’ effectively, is going to get you outside your comfort zone and get you some results that you want. But time will tell.

Phil: Time will tell, yeah.

Aled: So, Phil, if people want to reach out, find out a bit more, because there’s not just mediators watching this interview. There will be lawyers watching this interview. If they want to find out a bit more about what you do, how you do what you do. If they want to reach out and say ‘Thank you for this interview,’ what’s the best way for them to get in touch with you?

Phil: The best thing to do is to give me a call. But to find my number, it’s at the website, heskethmediation.com. Search for Phil Hesketh on LinkedIn. My number’s on my profile in LinkedIn because so many people hide to get in touch with you. But, yeah. Give me a call. It’s always the best way. Or if you can’t pick up the phone, drop me an e-mail, I’ll get back to you.

Aled: I want, if you’re watching this interview now, shame on you if you don’t pick up the phone, just to introduce yourself to Phil and say ‘Thank you.’ Phil, you’re the first person that said ‘Give me a call.’ So, I want people to pick up the phone and give Phil a call. Say ‘Thank you.’ But before anyone does that, Phil, I want to be the first. Thank you very much for doing this interview.

Phil: Thanks, Aled. I’ve really enjoyed it. And carry on doing this terrific work you’re doing.

Aled: Thanks, mate. Thank you. Best of luck. And we’ll see you in six months.

Phil: Cheers.

Aled: All right.

About the mediator

Phil Hesketh Profile Pic

Phil trained as a Civil & Commercial Mediator with the ADR Group in 2006 and became a full time mediator in 2008. Since then he’s mediated a wide range of disputes including catastrophic injury claims, will disputes, commercial contracts, boundary disputes to name a few. He is a former solicitor with 18 years litigation experience with two of the countries leading claimant personal injury claims. Phil is incredibly passionate about... View Mediator