Mediation has never been more popular or widespread. There are more cases than ever. It's all over the press and more mediators are sharing in the high fees that mediation continues to attract.
Well if all of this is true, why then is there a perception that mediation remains a greatly under-utilised service and why then do mediators still complain of little or no work?
Getting hired as a mediator and building a mediation business comes down to a lot more than just marketing.
Don't get me wrong, marketing is and will always be an important ingredient in building a sustainable business, I've written about this and have been a student of marketing for the past 7 years and continue to be. But there are a few more ingredients which must also be added to this mix.
And just like bread without yeast there's one key ingredient that every mediator needs in order to rise and be successful.
Now before I go any further I want to acknowledge that I know some will read this and see things very differently to the perspective I'm laying out here. There's no doubt that it's tough getting a mediation business off the ground, in fact it's tough getting any business off the ground.
In 2016 nearly 660,000 new companies were started in the UK. It's a fact that less than half of these will still exist in 5 years time.
I see this statistic reflected in my own neighbourhood in London as each day it seems new businesses open and close on the high street.
One of the benefits of living in London is the abundance of international cuisines and I'm fortunate to live very near one of the finest traditional pizzerias outside of Napoli.
It was there, one evening on a visit to my local pizzeria that I had moment of clarity.
I was there one evening to collect takeaway pizza for the whole family. Being the best pizzeria also means that it gets busy so with a 20 minute wait I decided to pop next door to the local Irish pub to quench my thirst and pass the time.
The bar is a little rough around the edges, should we say; not somewhere you'd take your mother but the Guinness was good.
As I sat down at the bar a stranger sitting on the stool next to me turned to greet me and insisted on buying me a pint! We soon got into a conversation about life and business. He was an Irishman who ran a small building company doing minor domestic work, installing kitchens, building extensions and repairing roofs - that kind of thing.
When I asked how was business he replied:
'Not good, it's tough out there. Lots of Eastern Europeans, the market is flooded with labour all competing for the work. I'm just about surviving but for how much longer I don't know.'
We continued to talk and as I reached the bottom of my glass I offered to buy my new and economically challenged friend a pint - he wouldn't accept and instead insisted on buying me another. Feeling slightly awkward yet humbled I accepted and stayed a bit longer to listen to my friends woes and it was towards the end of this conversation that I had an important insight.
I'll come back to this.
Opportunities or Difficulties?
You see it's not just mediators that experience a tough time, every business at some stage will be tested by forces outside of their control:
- Changing market conditions will bring new challenges (regulations, standards and frameworks)
- New entrants to the market will increase competition and test incumbents (newly trained mediators).
- Adjacent products and services will compete for market share (ODR, arbitration and other services)
Yet it sometimes feels like these problems are unique to the mediation field. Maybe what we are telling ourselves about our problems and our field of work are part of the problem?
So to figure this out who better to turn to in order to understand the power of stories and how to change them than one of the founders of Narrative Mediation- Professor Gerald Monk.
Professor Monk says that parties seeking mediation are often paralysed by their conflict-saturated stories. These stories impact on the emotions, behaviours and outcomes that parties experience. The narrative mediator thus deploys a number of tools and techniques to help enrich the narrative and change it to become more positive, empowering and useful.
What if we, therefore, were to change the mediation narrative? What if we changed the story from "There is insufficient awareness of mediation out there" to "It's a perfect time to be a mediator because there has never been greater awareness of mediation than there is now."
The problem with narratives and stories is that once we accept them and believe them, we view the world through the lens of that story. You may have heard of professor Daniel Kahnemann's discussions on confirmation bias - we form a hypothesis, and then only "see" data that confirms that hypothesis. (I recommend his book Thinking Fast and Slow.)
If we take on that story, we will only see mediators struggling, cases going to court, the phone not ringing... We're likely to feel powerless and resigned to the status quo.
Stories and the Perceived Wisdom of Groups
As newly trained mediators, even those long in the tooth (like myself) we might hear other mediators complaining about the lack of work, that not enough people know about mediation and it's a real grind trying to make a living from mediation.
It's normal and natural for us to rely upon the wisdom of groups - the phenomenon whereby the reasoning of large groups trumps that of an expert because the group can aggregate a larger pool of data and perceived wisdom.
This is the basis of a prediction market where people speculate or bet on future events and by aggregating vast amounts of data can help accurately predict behaviour or in some cases not...
It's a question I know many colleagues and friends still ponder both sides of the pond.
For the answer I need to turn to an 18th century French Philosopher and mathematician, the Marquis of Condorcet and his jury theorem about the relative probability of a given group of individuals reaching a correct decision. I'm skirting the limits of my fledgling philosophical knowledge here but bare with me because I think this is highly relevant.
Prediction markets fail because, as our learned French philosopher warned, when few people in the group have access to accurate data, then in all likelihood the conclusions of the group will skew in the other direction and continue to move further along the inaccurate continuum as the size of the group increases.
Put simply the more we all talk about how tough things are out in the mediation world the less inclined we become to look for data that invalidate our assumptions and thus unintentionally we perpetuate the dominant narratives.
Flip the Mediation Narrative
But what if we engage with the other narrative? What if we did a bit of research and saw that there is more mediation than ever happening out there, that mediation awareness is growing exponentially, by the day, that, in fact, more people are making a living at mediation than ever have been before?
You see, confirmation bias works both ways. If we accept those positive stories, we will see the cold, hard facts that back them up. Here are just a few examples:
- A number of recent surveys, including one by international mediation body CEDR, have shown year on year increases in numbers of cases going to mediation and a growing pool of mediators (lawyer and non-lawyer) sharing in the rewards.
- In Ireland, the family mediation service is groaning under the pressure of referrals and waiting lists for appointments and private sector mediators are now able to mediate every day, if they so wish.
- At state level, new mediation laws in many jurisdictions are creating new obligations on lawyers to refer cases to mediation and new powers for judges to do the same. Some countries have embraced mandatory mediation and court-connected mediation which are dramatically increasing the number of cases going to mediation. Now setting ideological differences to one side, if the goal is to grow the field then maybe we need play around with the choice architecture in some circumstances.
New niches for mediation are emerging every day
(Bet you never thought you'd see one of these on a mediation blog - wait for it..)
A California- based mediator now runs a full time practice in marijuana mediation, yes really (apparently he's been inundated with requests for co-mediation from unknown sources across the pond!)
Ireland's Mediators' Institute has just launched a farm-family mediation service. Not a Farm Mediation service or Family Mediation service but a Farm-Family Mediation Service. Sounds funny? Not if you consider that there are 139,600 independent family farms operating in Ireland in 2017.
As for Mediation Awareness?
At Mediator Academy for the past couple of years we have been running a very piece of nifty technology that monitors news alerts which have the word mediation in them. Initially the press and radio picked something up every other day. Now the alerts are going bananas because cases in which mediation was used, or should have been used, or might be used, are reported multiple times every day. This might be in relation to a local dispute over a school, or between the Spanish government and Catalonia but it is all mediation.
Law students are now learning about mediation at undergraduate level by participating in a myriad of mediation competitions - strange as that may sound- which are run all over the world. These students have embraced mediation before they ever become lawyers, and are changing they way they will practice law and dispute resolution dramatically.
I could go on and give many more examples but the message is clear. We need to make a choice as to which stories we allow to drive us and our endeavours. This is one of the key things I have found out that distinguishes those of us who are successful from those who are not yet.
Allow me to digress into a little Roman philosophy for a moment.
"Putting things off is the biggest waste of life: it snatches away each day as it comes, and denies us the present by promising the future. The greatest obstacle to living is expectancy, which hangs upon tomorrow and loses today. You are arranging what lies in Fortune’s control, and abandoning what lies in yours. What are you looking at? To what goal are you straining? The whole future lies in uncertainty: live immediately."
What he's saying is simple and yet complex at the same time. Sitting around waiting for the time to be right, for the phone to start buzzing with referrals, for the golden opportunity is a waste of time. Let me be clear, I'm not suggesting that's what mediators are doing but I do believe that the dominant narratives have a bigger impact than we think.
I'm also pretty confident that mediators could be a whole lot more effective in the way the go about their business.
We need to make a conscious decision to go out there are make it happen, and we need to do it now.
If we think about it, we can all identify someone whom we consider to be really successful. If we think about it further we will also recognise that those people work at their success and do things a bit differently to many others.
So I set out to discover what exactly it is that those successful mediators among us do differently.
What is it about the people that are mediating every day, or as much as they want to, in an area that interests and excites them?
What makes them different?
I think I have a pretty good handle on this now.
I found out that it is not one thing, but a few key approaches and strategies that the titans of the mediation world have adopted and which make them successful. I have shared a little bit of just one of them with you here, they start by thinking differently, by telling themselves a different story that empowers and enriches them and drives them to take action.
Yes, you need the will but you also need the skill.
We can also learn from people outside the field and in times when we least expect it, wisdom can come our way if we're open to it.
...and so as I reached the end of my second pint of Guinness and with the imminent threat of arriving home with cold pizza hanging over my head I thought it was time I made my exit. But I couldn't leave without returning the generous hospitality of my new friend, so I casually summoned the barman over and gestured that I wanted to buy a pint for my new friend. The barman turned to the man and said...
"Boss, this man wants to buy you a pint.."
Turns out he also had a 'portfolio career'; pub-landlord and builder!
I invite you to take what Seneca said seriously. There is no point wasting time and energy waiting around for something to happen in the future.
It is up to you to take action now, immediately!