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Where Are All The Great Employment Mediators In New Jersey?
7 January 2008It seems to be a mystery.
I know a couple.
I don’t want to start our new year conversation off on the wrong foot. Heck, I’m still aglow with the wonderful possibilities of a new year. But, I have to tell you, there may be a reason why so many mediators struggle to make it.
Let me share some excerpts from recent conversations I’ve had.
Attorney: Who are the good employment mediators in New Jersey?
This attorney has been practicing employment and labor law for over twenty years and had no idea who to turn to for a good employment mediator.
I know a plaintiff’s employment lawyer in New Jersey who has a short list of mediators he uses. He goes all the way to JAMS New York for one of them! (Ok, New York is our neighbor).
I know another long time employment lawyer in New Jersey who also mediates and gets a steady stream of cases through word of mouth referrals and her professional network. She is also on the court’s employment roster. Her marketing consists of participating in ABA panels on employment mediation and is based in large part on her reputation in the legal community.
Another attorney recently said to me, “I am going to become an employment mediator!” “I have had a string of mediations with court appointed mediators and they have been just HORRIBLE. I know I could do a better job!”
I know a former plaintiff’s employment lawyer who mediates and networks with former colleagues and gets hired pretty regularly.
Another attorney just had a mediation with a court appointed mediator and said to me, “We settled but the mediator didn’t really do anything. He just wasn’t any good.”
What is wrong with this picture?
Is this a case of a market disconnect? Overly critical attorneys? Or do we need to listen up?
Remember our prior conversations about matching the service to what client’s want?
In some cases, attorneys want a settlement conference — at least in litigated cases. If you are going to target litigated cases or you are doing mediations on the court’s roster, spend some time investigating what the parties and the attorneys want. Ask them what they hope to accomplish through the process.
Mediator’s Resolution Number One for the new year: Spend time each week improving your skill.
In a market like New Jersey, in a niche like litigated employment disputes, word of mouth marketing is key. If no one is going to recommend you after mediating with you, your practice will not take off.
But the lessons to be learned from these conversations I excerpted above, apply to your neck of the woods too.
Rule No. 1 — Do Good Work
Rule No. 2 — In litigated cases parties and lawyers want someone who understands the substantive law. Many mediators wish it weren’t so — but it is.
I know many mediators who dogmatically exclaim, “if I provide an evaluation, it’s not mediation.” Sadly, a narrowly defined service may not match what the market wants. Remember Ken Cloke’s book we highlighted last January? He had the entire spectrum of mediation techniques laid out on a canvas like colors on an artist’s palette. Pick and choose as the light of the day dawns and unfolds before your eyes. Sometimes, you may choose a bright red hue that requires you (with the appropriate disclaimers) to reality test in such a way you are evaluating the case. At times you will work in pale blues and be empathic and facilitative. Sometimes you will be hot pink directive in someone’s face to get control of a room running wild.
I think you get the idea. I hope so!
If you want to break into a market and maybe you’ve practiced law in the community for many years, ask your colleagues who the go to mediators are. You will learn a lot from the answers.
We can do better than this. Yes we can.
NEVER GIVE UP! (no matter how bad it may seem sometimes)
Kristina Haymes
Kristina is an employment lawyer and mediator in New Jersey
p.s. I haven’t been regularly reading other blogs but I just saw this on LinkedIn and Vicki Pynchon posted it on her blog: Lawyers answer Colm Brannigan’s LinkedIn question: “What Qualities Do Counsel Look For In Mediators?”
Posted in Keys to Technical Mastery, Marketing Strategies, Practice Building Advice, Coaching Corner
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January 9th, 2008 at 10:04 am
The people who study skill development tell us that practicing your skills without observation, self-reflective follow-up or solicitation of constructive criticism does not improve our skills. It just keeps reinforcing what we’re doing wrong (and we’re ALL doing SOMETHING wrong, i.e., ineffective).
Here are some of the ways I follow-up mediations to insure that I am in a constant process of skill-development instead of flaw-reinforcement.
1. I ask the parties what I could have done in addition or more effectively.
a. I no longer wait until after the mediation to do this.
b. I often pull the attorneys aside and say, “I don’t seem to be creating any movement with” i.e., “your client” or “the other side. Is there anything you think I should be doing that I’m not?”
c. I have also directly said to parties — “I know you want to settle this case and I believe we’re in a reasonable range — yet you’ve stopped taking the movements necessary to close the deal. Is there something I’m missing? or failing to do for you?”
2. The immediate mediation post-mortem. There’s never a time when I leave a mediation without asking myself what I could have done better or differently.
a. Sometimes I call colleagues and share these second-thoughts, asking for constructive feed-back.
b. Sometimes I go back to my office and call counsel for the parties asking whether they, i.e., would have liked me to make a mediator’s proposal or — more open-endedly — what I might have done that I didn’t to bring the parties closer together.
c. I often write a self-reflective journal entries about the mediation (a habit from my LL.M studies). Many of these post-mortem’s find their way into my blog or in an article for publication — with facts changed to protect the confidentiality of the proceedings. This serves the dual purpose of finding flaws in my own process AND providing me with marketing material, i.e., “content” for publication.
As I grow in my practice, I find it much easier to ask for assistance from the attorneys. I tell them we are a team and we should strategize together. That they know the case at depth and I know only its surface. When they are drawn into the process in this way they are invaluable allies in the process. I also find it much easier to admit that I haven’t been as effective as I wish I could have been. Earlier, I was frankly afraid that if I asked for feedback I’d be told I was just AWFUL — and I didn’t think I could continue putting myself out there day after day, learning this new skill-set like a 2 year old learning how to walk. Now that I have some confidence, i.e., now that I’m toddling, I find I can ask for feedback on how my walking’s doing. Sometimes I actually run and . . . oh so rarely . . . but you always know it when it happens, I am FLYING!!
You nail THE MOST IMPORTANT ABILITY TO IMPROVEMENT — being willing to acknowledge that you’re not 100% great (SUCH a relief, by the way) and then choose those areas of your weakness to work on.
Thanks Kristina!
January 16th, 2008 at 9:35 am
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