Just when it may seem as though there is no hope, an important statistic should revive the aspirations of novice mediators: for the most part, private attorney-mediators are fighting over auto accident mediations.¹⁵⁵ In these disputes, while one may need to have a basic understanding of punitive damages, pain and suffering, and contributory negligence, she would hardly require years of legal practice.¹⁵⁶ And, while retired judges often get paid the highest salaries for mediating cases, they handle most of the more complex issues,¹⁵⁷ which lawyers still may not have the expertise to handle. Consequently, in the realm where lawyers operate, the standards of practice may be too high for recent law graduates. However, it may still benefit the recent law graduate to consider the drawbacks of operating within a set framework like these lawyers. These limitations share two key characteristics. First, for the most part, lawyer-mediators are dealing with cases that have predictable settlement values and timeframes. Second, these cases draw a predictable type of clientele. On these views, attorneys benefit more by creating positive relationships with auto insurance companies who have an ability to provide a steady stream of referrals and mediation fees for splitting between disputing parties. This practice plays directly into Professor Kovach’s notion of a settlement-driven society of mediation professionals.¹⁵⁸

A successful mediation marketing strategy for beginning mediators should exploit these two factors by attacking their bases. Accordingly, the opportunity to mediate should arise where: (1) overall settlement rates are less predictable across cases and (2) disputants vary less across social strata. With regard to the first basis, a newer mediator might find business where conflicts depend on healing relationships and more subjective factors, rather than achieving a minimally acceptable settlement value. While these cases may implicate some of the therapeutic notions that family mediators want to protect, targeting these issues should take a mediator beyond the contentious issues associated with attorneys’ tactics.

In line with the second basis, newer mediators should seek out cases where there are fewer power imbalances between disputants. This may also mean charging fees far less than the norm of $150.00-$200.00 per hour. Examples of slight power imbalances might be cases of disputing neighbors, roommates, or family-related disputes. Each of these disputes lies far away from the all-powerful insurance company model, which perpetually generates cases for attorney-mediators. Similarly, while hourly fees for private mediations might hover in amounts above $100.00, a beginning mediator may want to charge $50.00-$75.00 per hour or less. In this sense, she can still make a decent wage while capitalizing on a client pool that would not draw the interests of attorneys who live by very high financial standards.

Mediation practitioners want predictable clients and cases because it is very difficult to attract new business. Simply opening the yellow pages of a phone book and turning to the attorney section should reveal that print advertising has been a reliable way to attract clients. In fact, the beginning mediator should take out an ad in the yellow pages as the first step in a marketing strategy. According to one commentator, mediation should include a number of traditional advertising methods.¹⁵⁹ But, most confirm that word of mouth remains the primary way that mediators stay afloat.¹⁶⁰ And, while all mediations do not require catered meals, one mediator suggests that providing well-kept rooms, designer stationary, and a voice mail system, may just save new mediators four years of "eat[ing] macaroni and cheese" for dinner.¹⁶¹ To overcome the financial implications of these requirements, mediators can simply share office space as attorneys and therapists often do.¹⁶² The former revelations about marketing mediation emphasize the need to make disputants’ experiences as pleasurable as possible, thus providing them with a reason to provide necessary recommendations. Two accommodating ways to advertise mediation involve the Internet and mediator referral lists, both of which a number of companies have begun to combine in interesting but very risky advertising packages.

There are no guarantees that any advertising concept will succeed. Mediation advertising is no different. Yet, mediators are constantly trying to simplify the advertising process. One mediator offers an entire mediation start-up regime for those interested in developing awareness of their services through the World Wide Web. Accordingly, all a perspective mediator must do is fill in a few blank spaces, link to a few existing sites, and she will be in business before that nightfall.¹⁶³ However, the World Wide Web is far from being what most mediators hoped it would become. While it is now possible to mediate an entire dispute over the World Wide Web, a number of online mediation advertisers are failing to meet their stated objectives. In fact many resemble the get rich quick schemes that bring to mind the popular and oft quoted maxim, if it seems too good to be true, then it probably is.

Consider, for example the professional-looking Promediation Website, which advertises as everybody’s "source for mediation information."¹⁶⁴ The service’s pledge is simple enough: for a membership fee of "$75.00 per year with a $25.00 application fee for board review," the service will provide mediators with a listing on both their mediator locator service, and through a toll-free phone number. Additionally, any mediator listed with the service may use an e-mail address ending in "ProMediation.com."¹⁶⁵ However, while these services seem extremely beneficial, fewer than ten individuals are listed on the elaborate network, and the 800 number referenced on the website is not posted. In fact, it seems as though Promediation uses its elaborate website to advertise expensive mediator training programs, rather than to offer services to the public.¹⁶⁶

Similar companies offer to develop Websites for mediators and combine this service with listings on a referral server, rather than providing mediation training, as evident in the former case. Mediate.com, for example, offers a number of Web-design services, some costing as much as $1,490.00, simply to develop mediation "brochure[s]." Note that the company charges an additional annual fee of $360.00 to keep the site operating.¹⁶⁷ While these programs may be appealing, new mediators should consider how profitable the sites have been to those who have already enrolled. The simplest way to test the quality of these services is to use the referral services as if you were a client to see exactly how they operate.

C. Mediator Referral Lists

Practitioners often applaud mediator referral listings as great ways to advertise services.¹⁶⁸ However, with a number of listings in existence, distinguishing between them is a great challenge. The toughest place to secure a listing is through a court-based mediation program. In many cases, courts have adopted model rules such as the stringent requirements advanced by SPIDR.¹⁶⁹ Furthermore, even if the courts do not adopt these limiting recommendations, many court districts treat lawyer-mediators preferentially.¹⁷⁰ One commentator notes that, in Texas, referrals are often "based upon prior professional or personal acquaintance" with the judge.¹⁷¹ The same result may also stem from the widespread practice of drawing mediators strictly from local bar associations, thereby restricting opportunities for non-attorneys.¹⁷²

Even if referral systems are designed to treat all mediators fairly, regardless of their professional associations, "[s]electing the right neutral—or more commonly, apt panel members—is sometimes random, sometimes subjective, and often a mix in a process that may occur behind closed doors."¹⁷³ These drawbacks may explain why it is often the case that lawyers and judges are the "heavy hitters" as a result of disproportionate mediation referrals.¹⁷⁴ But, if all else fails, nothing can match the effect of forging one’s own contacts with members of the community who are more likely to refer disputants to a mediator. These individuals may be overburdened lawyers, psychotherapists, members of the clergy, or even law enforcement officers.¹⁷⁵ Luckily, mediators are not limited to established referral lists, as evidenced by those successful mediators who do not elect to use such services.

This theoretical framework should be applicable to a number of unexplored or growing dispute resolution markets. For example, beginning mediators might consider mediating in educational settings. If mediation experience depends on years of experience in a given setting, recent university graduates, notably law school graduates, are probably the best suited for university mediation programming. This may be the only area of mediation practice where it is better not to enter any legal specialty, as mediators should be able to identify with the issues faced by their clientele: students with no specific legal calling. A number of commentators note that campus dispute resolution centers are "a necessity rather than a luxury."¹⁷⁶ Yet another rapidly expanding area requiring professional mediators exists in the governmental sector. Many local agencies are still coming to grips with legislative mandates to develop dispute resolution programs.¹⁷⁷ When it comes to contracting with government agencies, a little-known, but extremely helpful, fact is that a mediator can "[ask] [her] local Small Business Administration Office to help…search for [government contracting] opportunities."¹⁷⁸ In sum, rather than obsessing over the practices of competing attorneys and trying to achieve their status as mediators, beginners should consider the mediation territories that remain uncharted because of the norms that practitioners have developed.

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155 See Rolph, supra note 54, at 6 (noting that in big cities like Los Angeles County "[m]ore than 40 percent [of mediations] are automobile personal injury cases").

156 Consider the numerous do it yourself books and software programs designed to aid litigants in this area. See, e.g., Editorial, States Challenge Do-It-Yourself Legal Software: Texas Judge Battles Quicken Family Lawyer '99, available at http://www.channel3000.com/cyberlink/stories/cyberlink-990202-223433.html (describing the high number of legal assistance programs available to consumers).

157 See Rolph, supra note 54, at 6 ("[f]ormer judges are more likely to see atypical cases of higher –value disputes [where they] more commonly provide court-like procedures"). Cf. Frank E.A. Sander, A Friendly Amendment, DISP. RESOL. MAG. 11, 11 (Fall 1999) ("There are at least four concerns about judges doing mediation: 1) undue coercion; 2) role confusion (and possible misuse of confidential information) if the same individual performs both functions; 3) competence and training; and 4) appearance of impropriety."); James Alfini, Risk of Coercion Too Great: Judges Should Not Mediate Cases Assigned to Them for Trial, 6 DISP. RESOL. MAG. 11, 13-14 (Fall 1999) (noting that many judges have "an ‘assertive’ judicial ‘style’" that can easily materialize in an automatic tendency to "bash[]" disputants during mediation sessions (citing the case of Dodds v. Commission on Judicial Performance, 906 P.2d 1260, 1270 (Cal. 1996) (observing that "when a judge clothed with the prestige and authority of his judicial office, repeatedly interrupts a litigant and yells angrily and without adequate provocation, the judge exceeds his proper role and casts disrepute on the judicial office.")).

158 See Kovach, supra note 61, and accompanying text.

159 See Della Noce, supra note 10, at 11 (suggesting that "possible [advertising] media include word of mouth, educational seminars, public talks, videos, brochures, posters, plays, dramatic events, and public service announcements").

160 See generally Fragnoli, supra note 9 (stressing the importance of client referrals).

161 See id. at 13.

162 Id. at 13-14 ("[n]ew mediators may want to join together to share space and administrative help if they are unable to become a member of an established mediation firm").

163 See Basic Tutorial for Mediator Web Site Design, available at http://adrr.com/tutorial/index.htm (describing a step-by-step guide for creating a Web-based mediation advertising and communicating medium).

164 See Promediation Homepage, available at http://www.promediation.com (advertising an elaborate mediator referral service that extends across the United States).

165 Promediation Member Web page, available at http://www.promediation.com/membership.html.

166 See Promediation Training Page, available at http://www.promediation.com/schedule.htm (offering a basic 48-hour mediation training class for $1,275.00).

167 See Internet Services Page, available at http://www.mediate.com/service/ (describing a range of Web-based mediator services and concomitant prices).

168 See Charles Pou, Jr. "Wheel of Fortune" or "Singled Out?": How Rosters "Matchmake" Mediators, 3 DISP. RESOL. MAG. 10, 11 (1997) (describing successful mediator referral services such as FamilyNet, a "‘managed mediation network’ that offers an array of dispute resolution services that a corporation can purchase at a discount for its employees—much like health insurance—from a national network of more than 600 experienced family mediators").

169 See Susan Keilitz, Court-Connected ADR: New Qualifications Guidelines say Quality Buck Stops at the Court, 3 DISP. RESOL. MAG. 7, 8 (1997) (noting four limiting recommendations, such as refusing to "accept prior training in a dispute resolution process as satisfaction of the court’s training requirement" unless the court decides otherwise).

170 See Bermant, supra note 53, at 49 ("The Maryland courts and legislature, the Virginia Court system, local jurisdictions—all have proposals or practices that in some way anoint lawyers with special privileges as mediators. And the restrictions seem to bear little relationship to improving the quality of mediation.").

171 Kovach, supra note 102, at 6.

172 See Pou, supra note 168, (same).

173 Id. at 11 (noting additionally that all referral practices have the potential to "give rise to perceived opportunities for favoritism" if they lack effective oversight mechanisms).

174 Rolph, supra note 54 (same).

175 See, e.g., Joyce Hauser, An Analysis and Feasibility Study of Divorce Mediation and a Program for Its Marketing, 11 MEDIATION Q. 171 (1997) (describing various referral-producing strategies).

176 See Jessica K. Jameson, Diffusion of a Campus Innovation: Integration of a New Student Dispute Resolution Center into the University Culture, 16 MEDIATION Q. 129, 129 (1998) (noting the varied needs of institutions of higher education).

177 See, e.g., McClellan, supra note 6, at 17, 18 (noting the growing need among government agencies for "ADR evaluation mechanisms…[to] collect and measure quantitative, qualitative and customer satisfaction data" in line with the adage "If you can’t count it, you didn’t do it.").

178 See Fragnoli, supra note 9, at 14.