Thoughtful Guidance From Skilled Attorneys

Mediation A Business?

| Jul 23, 2020 | Firm News

If you are going to run mediation as a business you need to begin by thinking of it as a business person.  As we all know law schools do not prepare you for business.  What did you do when you started your practice and what should you have done differently.   Next you must determine how much per hour you’re going to charge for your mediation. While my normal hourly rate for practicing law is $295 per hour, however for mediation I charge $150 an hour. One of the things I have learned long ago was that in mediation you did not do the mediation unless you verify before you start that the person can pay you. I normally ask for four hours up front before I start the. At $150 an hour that is $600 total. If the people told me at the beginning that they cannot pay, then I stopped at mediation after 4 Hour.  Sometimes the other party will pay if they see the case is making progress.  Some mediators will not schedule a mediation until each party pays $500 each up front.  Such a rule delays getting the matter scheduled.

How to Get Business

            If you want to develop mediation clients you can do so either by sending expensive notices to many lawyers, who if they are like me, I throw them in the trash. Marion County, has a program called modest means mediation. They are currently, I believe, 26 mediators accepting modest means mediation. The program pays you $100 per hour.  When you are assigned to mediate you receive an order stating how much each party pays and then the program pays the difference up to $100 per hour for 3 hours.  You should make it clear that at the end of 3 hours mediation stops or they pay your normal hourly rate.  The program needs more mediators.  Our office receives about 1 per week. 3 of the lawyers in our office do modest means.  As a result of this, all of us have obtained repeat mediations from attorneys who previously did not know or use us. You should also market yourself on your web site.  If you do not have a website you should get one.  Most people do not use nor many of the younger generation do not know how to use the telephone book.  We are seeing more pro se parties hiring us to mediate their cases.  Do not advertise mediation as a specialty as it is not and to do so is a violation of the Rules of Professional conduct. See Rule 7.4 of the Indiana Rules of Professional Conduct.

You Have Been Appointed Now What

            Once you Market yourself in the manner would you feel comfortable with, then you have to get down to the actual mediation process. When court appoints me or an attorney contacts me to say that they have agreed to use me, the first thing I do is let him know my hourly rate if they do not know and that I use a program called Doodle.  Doodle is a calendar program where I send potential dates and times of mediation.  You could break it down and information about 15 minutes or as large as all day.  I typically send everyone dates and increments of eight hours.  Some lawyers will not use the Doodle program as they just refuse to use anything that is easier and more technology.  If that is the case, you can send out calendars by fax, e-mail pdf, or by mail.  If you delay the scheduling of mediation then you increase the possibility that either your calendar fills up or one of the other parties calendar fills up before everybody completes their calendar circulates the calendar.  I also typically do not start mediation before 9:30 a.m.  There are two reasons for this: first I do not like to get up with the morning, and secondly, I find it if I scheduled an 8:30 or 9 at least one or all of the parties do not show up until 9:30 a.m.  So many people are used to getting into the office at 9 or going to court at 9 plan their life around being able to be somewhere no earlier than 9 o’clock.  If one party shows up sooner than the other party, I will typically start the mediation with them.  At the end of this document, I have included the form we use which talks about asking for mediation statement and the rules of mediation.  Once mediation starts I go through the standard language of warning them about confidentiality and whether or not they want to release information.  A common issue in family law is what happens if you have non-party non-attorneys wanting to attend mediation.  There is a case from another jurisdiction that is held that the confidentiality provisions did not apply as in mediation is meant for only the party and their attorney.  I always inform the parties of this possibility before I discuss their case.  I also tell them if the person becomes a problem I will make them leave.  My policy is to allow them as many times they are making the decisions and if they do not hear everything that goes on they might kill the deal.

Technology Make it Your Friend

            Another thing I find is that some people cannot afford to pay the mediator and pay their attorney to attend the full mediation.  If you have attended a mediation, you are well aware that there are long periods of time where a party just sits in the room with their lawyer.  I have lawyers who send their clients and then conference in when I am in the room with their client. To make this work, I use a program called Zoom, which is an encrypted ideo conferencing program.  It allows you to video conference with up to 50 people at a time in 30 different video conferences therefore maintaining confidentiality.  The video conferencing also allows you to have separate video conferences running at the same time with different people.  These people have no access to the other party and leaves you as the moderator to move about the “rooms”.  The breakout section even allows you to call the lawyers out of the mediation somewhere other than where their clients are and talk with the lawyer separately.  In one mediation, I conducted a mediation where one party was in Florida, the other in Georgia, one lawyer was at home and the other lawyer was at the office.  I also find this is an excellent method when domestic abuse is an issue.  You can show people the documents and exhibits.  This is an excellent program even if the party don’t have video capabilities, if they have a Smartphone they still do conference and even with a Smartphone with a working camera that can video conference.  You can also display documents with this program to review and even allow them to modify it.

            The Indiana Supreme Court adopted a rule that I recommended i.e. Rule 83(7) of the Indiana Rules of Trial Procedure.  This rule allows agreements to be signed immediately rather than mailing because the long-distance situations, once the person talks to their boyfriend, girlfriend, wife, my mother, you expect that it could fall apart.  I also use a program called DocuSign to have the people sign the documents if they do not have a scanner.  I believe some smartphones now have the ability for someone to sign documents.

            Since we are in a society of instant gratification I try to use that for my benefit.  I have for years now I used a computer system, which linked with the big screen TV up on the screen so when someone says I think he or she makes $5 more a week you make the change and put it on the screen and show that low and behold we just wasted time finding out that the child support would change less than a penny.  Otherwise, you would have to go to another room, print it out, and then bring it back to them.  Technology is such now that at least with Windows 8.1 or 10 computers you can now do this with a dongle, the Microsoft version is Miracast.  You can now buy a Samsung Smart TV 32″ for $250 and if you have the windows 8.1 or 10, you can sync without additional software or a dongle.  I also have printers that on my network that I can print to wirelessly, so if the party sends me some information or say we call a third party and have them email it to my phone, I can print directly to my secretary’s printer.

            I also use a West software that allows you to enter the debts and assets of the parties into a program and then assign assets and debts to either party.  In doing so it automatically calculates the percentage division of property.  I would not recommend buying this software unless you already have a family law practice otherwise it is not worth the cost.  It is called FinPlan.  Some attorneys have excel spreadsheets that work similarly but not as seamless.  I am not good at excel so I stick with FinPlan which we use regularly in our practice.  Using this method in conjunction with the big screen tv speeds the process and keeps people moving toward settlement.

            At our office we have 2 wireless systems.  One is for our office internal use and is totally separate from the other system.  They are both secure except the one for use by others, we give out the password to the lawyers participating.  This allows them to receive things from their office, to draft proposals and email to me for printing or showing to the other side and also allows them to work on other matters so they can bill their down time during mediation which should make their clients happier.

Other Tricks

            For most mediations I do not receive a confidential statement.  Most times I receive a cause number so I always look up the ccs on a case so I at least know what is going on. Now with e-file I have my secretary or paralegal download all the relevant documents if they have not been provided.  I also always ask that the lawyers supply a draft in Word of a proposed settlement.  If I do receive a confidential mediation statement and the ccs is not online, I try to determine by the cause number what the subject might be.  For example, if it is an old DR case, I figure it is either college, custody, or support.  If it is a new one then I assume it could be all of that.  If it is a new JP case I assume it is support, maybe name change and sometimes custody. If it is an old JP, then I assume support, college, or custody.  Also if I receive nothing, I have my secretary call the lawyers’ secretaries and ask they fax over or email a copy of the pleadings and counter pleadings.

            I have a standard report of mediator prepared for each case and before the parties leave, I give them a copy of what I am going to file.  If the case is settled, I offer to file the settlement when I file the report of mediator.  I think this is a best practice as I have heard nightmares of people changing their mind and lawyers not filing the agreement.  I have just saved 4 envelopes and stamps over if I had mailed them all myself.  Now with e-file you also need to ask to be removed or you will continue to get notices from the court.