Mediation and Marketing: Complementary Skills

Published November 1, 2013

From New York Law Journal, November 2013Litigation is often time-consuming and always costly, and even a victory at trial may not be the best way to meet a client’s objectives. Increasingly, litigators look past the emotion of going to court and pursue alternative dispute resolution through arbitration or mediation. Doing so successfully, of course, requires understanding the law and the appropriate ADR techniques. But what is often overlooked is that the process of securing agreement to pursue alternative dispute resolution is very similar to the process of successful marketing. A successful marketer develops relationships, builds bridges and wins confidence. Marketing in this sense means learning about a client’s needs, pinpointing how to meet them, and making clients feel valued and understood when they receive such focused attention. Creating such a foundation of trust is essential in ADR and marketing, and the skills for doing so are similar.

Relationship Management

One of the great frustrations for many lawyers is when opposing counsel do not take the time to delve into and understand their client’s case, such that they could engage in meaningful settlement discussions before trial. As a result, the client must often be told that there is no alternative to the time and expense of preparing to go to court. Opposing counsel may think this tactic puts them in a position of dominance to control the proceeding. In reality, of course, they are not, because they didn’t have control of the facts. The result is often a settlement that is reached on the courthouse steps when heading for trial—a settlement negotiated exactly in line with an understanding of the issues at stake, and one that could have been reached much earlier through a more collaborative process.

The relationship management techniques that are fundamental to effective marketing can be highly useful in such situations, even apart from formal ADR proceedings. The adversarial nature of lawyers’ training risks creating a win-lose mentality when dealing with opposing counsel. Such behavior often merely entrenches the opposition further. Being open to discussion and practical settlement does not equal caving in to an adversary’s position. Zealousness should not be confused with what might be termed the “cobra approach”—churning the ground, striking out indiscriminately and seeking to inflict the maximum damage on anyone in the way. Thus aiming to “win,” sometimes under the pressure to generate fees, is counter-productive.

Client’s Interests

The lawyers who serve their clients best are problem solvers, not cobras. This is far more than an issue of civility. The real concern is that a client’s interests—whether in a family law dispute or a billion-dollar litigation—is always best served by reasonable, rational legal counsel. Clients, like all people, like to buy from people they like. Doctors receive training about developing “bedside manner” and treating patients with “compassionate care.” Yet law schools do not teach lawyers how to interact with clients or opposing counsel in a collaborative way, any more than they teach the collaborative techniques of marketing.

A study in The Wall Street Journal several years ago discussed how medical schools are recognizing the need for doctors to communicate better with and show more compassion to their patients.1 The article called this extra communication that lowered the risk of malpractice “marketing.” In this sense, the focus of the conversation between a professional and a client/patient/ customer must be to understand the intent and desires and wants of the client. Only then can you shape your professional service. And that is the essence both of an ADR strategy and a marketing strategy.

Communication Skills

Communication skills are obviously vital ingredients to a successful lawyer-client ADR relationship. It’s essential that the client knows what the lawyer is doing, and that the client approves of the tactics to be taken to achieve the client’s strategy/goal.?? Effective mediators find out not only what the parties need, but also what they want. That requires communication with participants at their level of understanding, finding out how they best receive information and then provide it to them usefully. The obligation to promote quality communication and to assure a good??understanding of what to expect lies squarely with the mediator, as part of his or her professional responsibility.

The best way to define the application of that lesson is to describe it as collaboration. Mediator and participants work together to assess needs and develop a proactive, interactive law approach, taking actions and decisions that are mutually beneficial. This collaborative process defines the essence of marketing, and as well defines the successful approach to alternative dispute resolution. A “satisfactory” result may leave clients on both sides feeling that their full objectives have not been met. A collaborative resolution of the dispute, based on a foundation of trust created in an interactive negotiation process, has the best chance to satisfy the objectives of both sides.

Zealous Yet Civil

In recent years, many state and local bar associations adopted voluntary professionalism goals and standards that attempt to discourage “unprofessional conduct” and encourage “civility” for lawyers engaged in litigation. Typically these codes are not mandatory, and non-compliance carries no sanctions. In Canada, where civility is highly valued, the Canadian Bar Association’s Code of Professional Conduct specifically states (Rule IX, chapter 16): “The lawyer should at all times be courteous, civil, and act in good faith to the court or tribunal and to all persons with whom the lawyer has dealings. …Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though not punished as contempt, might well merit disciplinary action.”

Most lawyers take pride in zealous advocacy on behalf of their clients. However, because it deals with human lives, the law cannot be a profession unless the participants maintain professionalism and deal with others accordingly. Forthright advocacy of client interests does not require posturing or seeking an image of dominance or making demands that are totally outrageous and beyond the scope of reality. If lawyers don’t voluntarily maintain high professional standards, they incur the disrespect of all and may soon find the state imposing standards upon them.

The mediator’s true obligation toward what ADR participants expect is to be fully committed to a collaborative relationship that builds trust over the long term. Communicate regularly, demonstrate a clear understanding of their value as individuals and (if appropriate) as organizations. Seek out their opinions, ask them what they want to accomplish, explain the reasons behind the actions that are taken. Such collaboration doesn’t just manage expectations—it builds the trust and loyalty that are essential to ADR success.

Billing Implications

Collaboration has practical implications for billing an alternative dispute resolution matter. Through collaborative discussion with clients, counsel should establish how much money they want to spend to resolve a problem. A higher initial cost may be acceptable if the long-term return on investment justifies it. Sometimes a legal problem is large enough to justify spending big sums. Most issues, however, involve everyday costs of doing business. It makes no sense to budget spending $2 million to try a case if a $100,000 settlement meets the client’s objectives.

Budgeting presents a similar challenge. It should begin by getting as much information as possible about goals and expectations. Information should cover parties, claims, anticipated strategies and desired outcomes. Understanding such objectives is the prerequisite of the budgeting process. The key is not just preparing the budget, but involving the parties in the preparation and approval of the final budget. Without client buy-in, the process is meaningless.

When budgeting for ADR in a risk-sharing arrangement, there should be different budget milestones tied to success. The budget can be for the entire case, or just to that point in the proceeding where a negotiated settlement has a good chance for success. The engagement goal is tied to that probability, as a success bonus if the process has stayed within budget to get to that milestone. Different parameters define different success outcomes. Client and lawyer work as a team to achieve them and both parties benefit: The client gets out of the lawsuit and the firm gets a success bonus. It is a win-win situation for everyone, including the mediator.

Ultimately, ADR billing is a matter of trust and agreement. The mere fact of budgeting will cause everyone to focus on the goal line and how to get there most efficiently so as to produce a satisfactory result at a lower cost. No matter what alternatives are used, it is important to measure the value desired and provide legal services accordingly. That way, “value” becomes the ADR billing message, and knowing they received value makes for satisfied participants.

Marketing Intersection

This whole process helps define the parameters of yet another intersection between ADR and marketing: how the mediator can market his or her services. Collaboration, affordability, predictability and professionalism are all elements that this discussion has emphasized, and these are qualities that a mediator can emphasize to market the ADR services provided. Of course, neither mediators nor lawyers can guarantee a result in a legal matter under Rule of Professional Conduct 7.1’s prohibition of false or misleading communication. The ABA’s commentary says this includes “lead[ing] a reasonable person to form an unjustified expectation” about what an attorney can accomplish. An up-front general statement about what the process involves and what it is intended to accomplish is critical. It is important to tailor this communication, and the ADR process itself, to the needs and expectations of the participants.

But mediators can assure clients of a level of effort and standards of performance without violating any professional standards, because to do so in the right way deals with factors within their control. For a mediator to assure providing the kind of professional effort and personalized attention that all clients want and expect will create greater client satisfaction, and greater satisfaction with the ADR process. Such a “guarantee” reduces clients’ feelings of risk, so that they feel comfortable moving ahead with the ADR process. Service is the one factor that clients want from legal professionals more than anything else, including more than lower fees. Despite what clients say, they will not put a priority on cost-cutting if they fear it will hurt service, including in an ADR proceeding. No matter what alternatives are used, the effectiveness of the process depends on measuring the value desired and provide legal services accordingly. That way, “value” becomes the marketing message, one that defines the satisfaction of the participants. And such satisfaction epitomizes a successful marketing effort.

Ed Poll, principal of LawBiz Management, has been a consultant to solo and small firm practitioners for more than 20 years.

Endnotes:

  1. “Teaching Doctors to Be Nicer,” 9/28/05, http://online.wsj.com/news/articles/SB112785836565053740.

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Audience type: Administrators, Associates, Large Law Firms, Small Law Firms, Sole Practitioners