Mediation vs Arbitration Clauses- Which to Choose?

Got a Visa card, Mastercard or almost any other credit card? Then you, my friend, are now subject to an arbitration clause. That means you agreed to waive your right to a jury trial should a dispute arise. Same thing with your telephone agreement, health insurance and bank loans, according to Cardratings.com, a portal site for credit card information. Mandatory arbitration clauses appear in both consumer and employment contracts, often without the knowledge of the signer.

More companies test arbitration clauses

Large companies draft contracts with arbitration clauses to reduce their exposure and risk. Now smaller companies are using the same tactics to address customer concerns. Generally, I'm in favor of resolving issues outside of the court house. However, there are reasons why I favor a mediation clause over arbitration.


Why Mediation Clauses are Better than arbitration

A member of ADRPracticebuilder.com recently consulted with a client about trying a mediation clause instead of arbitration. She brought the question to our Discussion Forum where we brainstormed some positive arguments for using mediation.

Here's what we came up with:

So, the question is: how to persuade the client to do a mediation clause instead of an arbitration clause, right?

Have you inquired as to why the client prefers arbitration? Is it because that's the process they are familiar with, or is there a substantive reason that they prefer that method?

One reason might be that arbitrations make precedence- a defineable, predictable outcome that the company (and others) can rely upon. Another reason is that the durability of an arbitrated agreement is greater than that of a mediated one.

Knowing their reasoning will help you understand their underlying interests and easily meet their objections, or give you a reason to say yes to the plans.

Here are the reasons I think mediation clauses work well:

1. Mediation clauses signal to employees, vendors and clients that the company is collaboration-focused and sees issues as oppportunities to build understanding as well as fix concerns. Consumers are savvy enough to look for them.

2. Mediation clauses allow companies to engage in discussion privately, as to the meeting and the outcome. Therefore, there may be a greater willingness to settle and to settle more generously. Company saves reputation and clients get a nicer/better outcome.

3. Mediation is less costly than both arbitration and litigation. I think I heard somewhere the average per diem for an arbitrator was around $5k/day- but don't quote me.

4. Mediation allows for a timely resolution, whereas there's little flexibility or urgency with arbitration or litigation.

5. Mediation repairs more than the legal issues. It allows parties to address the emotions and tangential issues that are part of the dispute that cannot or will not be addressed in the other forums.

6. Mediation is empowering because it puts the parties in control of their own destiny. Parties learn valuable lessons about cooperation and negotiation at the mediation table that are often carried into other areas their lives. In a company this can mean a shift in culture or climate.

More Reasons, please

Of course, this list isn't exhaustive. The more facts, data, argument we can share the better we can serve our clients. What are your reasons for suggesting that mediation clauses should replace civil dispute arbitration clauses?


Try. Fail. Learn. Grow!

Dina

Educational Marketing Teaches Mediators a New Lesson

Didn't I say that educating your marketing about mediation was the way to go? Looks like I'm not the only one who thinks so....

Check out this recent article in Business Week that confirms educating potential clients on how to solve their problems is a very powerful marketing tool. This is especially relevant to us in our marketing efforts.

How Can You Use Educational Marketing?

Create an education experience for your niche market based on the types of experiences or processes they might face.

Suppose for a moment, you're a mediator who works with condo associations as your niche. You could compose a number of different articles, quizzes, checklists, reading lists, and how to articles that educated board members on working collaboratively, resolving conflict or any other related topic. Surely, you'd become the recognized (and highly appreciated) expert in that niche who clients turned to for support.

What to Write About

No matter where you are in your practice- newly trained or mature practitioner- you have information of value to offer to someone who is less informed in your niche. As someone once said, 'In the land of the blind men, the one-eyed man is king.'

Newbies

Write about what you know. Your experiences as a new practitioner are unique and bring a new perspective that can be enlightening. Or, write about what attracted you to working with your niche group. Or, what legacy you hope to leave your market.

Established Folks

Your approach is similar to that of the newbie, except your challenge is composing items from the vast amount of conflict resolution wisdom you already have to share! You have forgotten more about resolving conflict than some people ever knew. Time to give back.

Recall the questions, challenges or concerns that your first clients brought to you and turn them into learning products that teach clients how to begin to use and benefit from mediator or facilitation or whatever process you use. Then consider the challenges of your current clients and create tools that help them prevent disputes. Your clients will be grateful and turn to you when they realize they do need your expertise.

Definitely take a moment to check out the article I linked to above. The results were dramatic. If you could achieve a small portion of their success, you'd be at the head of the class!


Try. Fail. Learn. Grow!
Dina


PS I'm happy to brainstorm with anyone who may feel a little stuck. Let me know and we'll arrange a short chat

Mediation Niche Articles - Submit Here

Want to see someone who really understands how to execute a niche concept? Visit Chris Knight over at Ezinearticles.com. He has over 430 separate niche categories. Amazing and amazingly smart.

Publishers who frequent Ezinearticles.com for great content don't have time to waste combing through hundreds, or thousands, of articles. They want content NOW. The vast number of niches ensures that publishers get what they need quickly and enables them to really hone in on the specific needs and interests of their readers.

As an author who contributes to this bank, I want to know that my articles are well placed and not lost in the pile. Consequently, I look for the most relevant category when I submit my writing.

Chris has made it incredibly easy for mediators with a variety of niches - from family to workplace and beyond - to find a home. For instance, a quick peek at the 27 new categories he recently added reveals 5 gems:

business-non-profit

home & family-death, dying, grandparents

real estate-construction

relationships-marriage

self improvement

Mediators lament that it's hard to market, but really this is a gimme, folks.

If you haven't written at least two articles and posted them online, you've got to ask yourself, "What am I waiting for?" Need a little guidance getting started or ridding yourself of imposter syndrome, then grab these audios:


The Writing Series with Linda Dessau

Step-by-step, Linda will walk you thru recognizing the value you already have to offer; selecting writing topics that click for your niche; and publishing a newsletter/ezine so you stay top of mind with potential clients.

Try. Fail. Learn. Grow!
Dina

Geoff Sharp's 40 Sites

Geoff Sharp is, well, very sharp. I’ve been enjoying his thought-provoking and often witty posts over at Mediator Blah Blah for years. Recently he tackled the question of what role spirituality plays at the mediation table and garnered some interesting comments.

Now, he’s sharing his list of 40 Sites in 40 Minutes, which was meant to be his secret presentation for the LEADR’s 10th International ADR conference, the most important gathering of New Zealand and Australian mediators. That is until he got outed.

The list is really impressive, both in scope and in the quality of content. It’s amazing because I remember when there weren’t any truly robust information or discussion portals for mediators. Now, via the Internet, mediators everywhere can be in community with each other. It’s quite gratifying to know that Mediation Mensch and ADRPracticebuilder.com were included on the list.

I encourage you to drop by and see for yourself. I know I’ll be visiting new-to-me sites like the Bond University newsletter and Passion, People and Principles.


Try. Fail. Learn. Grow!
Dina

Doing Well by Doing Good: A Boston Mediator Responds

This morning I came across an interesting post in the SCMA blog. Vicki Pynchon made available an article written by Christine Von Wrangel who talks about some of the dirty laundry of our profession. Namely, that there are more mediators trained than those working for pay. Please take a moment to read the article.

I've posted a comment at the SCMA blog that's awaiting approval but I thought I'd share some thoughts here, too.

I agree with Christine that many learning institutions and training organizations could do a better job preparing students to be business people as well as skillful mediators. It's not unheard of.

Schools are changing. When I was in law school I created a business plan for a practice as part of my third year coursework. Mediators-in-training could do something similar. Why not expand the standard 40 hour training to include information on marketing and business planning?

For those who believe that the opportunities for mediators are meager, again I disagree. My experience has been just the opposite. True, it was challenging. However, I've made a comfortable living over the past 15 years. And, guess what? I don't think I'm unique or special. Others can do it, too.

ADRPracticebuilder.com was built on that idea. My membership rests on the notion that with support, marketing tools and guidance other mediators can do well and do good. As always I welcome your thoughts and comments.

Try. Fail. Learn. Grow!

Dina

Let's Stay Together: Marital Mediation Practice

An attorney in Chicago recently posted a billboard that says, 'Life is short. Get a Divorce'. Certainly that resonates with some people, but Laurie Israel finds that some married couples are searching for new ways to stay together.

Laurie, an attorney and divorce mediator in Brookline, MA, expanded her practice to include 'mediation to stay married' and shared her experiences during a recent teleseminar, Building a Marital Mediation Practice. Here are a few of Laurie's insights for creating this type of practice:

• Be passionate about the types of problems you want to assist couples to resolve
  
  
• Being married or divorced isn't a pre-requisite but it builds understanding and awareness
  
  
• Surround yourself with responsible practitioners like mental health professionals, attorneys who can supplement/compliment your expertise
  
  
• Market by writing articles and speaking as much as you can. You never know where new clients will come from

The discussion was far-reaching and included Laurie's philosophy of 'mediating in the shadow of the law'. The audio recording of the call is available on ADRPracticebuilder.com in the Marketplace.

Try. Fail. Learn. Grow!

Dina

Mediation Marketing: Direct Mail Works, Geoff!

Geoff provokes me- and I mean it in the most positive way.

His posts over at mediator blah, blah about reflective mediation practices and other general good stuff often set me to wondering. They challenge me, and hopefully you dear reader, to examine and reconsider my practices and their impact on the world. All that and he's quite pithy, too.

The Challenge

This time around, Geoff, invited us ‘marketing gurus’, including Tammy Lenski and Kristina Haymes, to extract any marketing lessons from the direct mail pieces he recently received. Tammy has already shared some excellent thoughts at her blog (and I know Kristina will be insightful as well).

As promised, I’d like to share a bit of commentary on those mailers then segue into a discussion on why mediators should use direct mail as part of an overall marketing strategy. To prevent his post from turning into a long one, I’ll save the ‘how to’ advice for another article.

Tailored Suits and Speechmaking

Direct mail is a forceful tool for marketing because it works. People read snail mail. Geoff probably gets plenty of junk mail but something about these pieces, perhaps the colored stamps or the device of the handwritten note, caused him to look further (see his blog for the visuals).

That’s one of the key goals of any marketing material- to attract attention and generate interest. So, both marketers get a ‘thumbs up’ for meeting the challenges of getting read (he did) and staying top of mind (he blogged about them)

Each marketer failed, at least in my book, because neither one crafted an irresistible message or offer that would lead the reader to action. They caused a 'so what' reaction in me because neither spoke to me and my needs directly.

In today’s world of mass personalization (think: Starbucks, cellphones), people want to be recognized as unique and want solutions that are tailored especially for them. When people recognize their problems, interests or themselves in your offering, you’re half way to gaining a client. (ADR entrepreneurs, we could do a much better job . It's articulating value and fit. It's about explaining in plain English how our problem-solving skills,including mediation, can get help clients realize their ultimate goals.)

Why You Should Use Direct Mail

Mediators can be very effective marketers if we choose to be. You already know how to question to reveal concerns and interests. With that data you can create marketing messages that are specific, meaningful and highly relevant to your particular niche market. (You do have a niche practice, right??) Direct mail is an inexpensive, manageable vehicle to get those messages out into the world, especially when you use my favorite tool-postcards.

Postcard campaigns are:

Affordable

You can create and mail a postcard campaign for 100 people for under $20 dollars by using resources like Vistaprint.com, which frequently offers 100 color postcards for free. By the way, if this is your first campaign, you might want to limit your mailing to less than 25 people to ensure you can devote time to the proper follow up activities. My Marketing with Postcards teleseminar goes into more detail on that.

Visible

Have you ever NOT read a postcard? Postcards enjoy nearly 100% readership! Just about anyone you send one to will read. You easily increase your visibility. The key is to get an effective balance between graphics, copy and white space so that readers can’t put your postcard down. There are plenty of sites online like morguefile.com to find royalty-free graphics.

Powerful

Postcards offer you a low-risk method to educate and generate interest with clients as part of your overall marketing strategy. By sending valuable information to their doorstep, your potential clients will begin to see you as an expert and a dependable resource who will be there when they need your services.

How? Create quarterly postcards that update clients on new developments, for instance, changes in custody guidelines in your state. Teach clients how to master a skill through a series of postcard ‘lessons’. You’re only limited by your imagination and the space on the card!

Don’t forget to include the basics that are part of every direct mail campaign, such as your name, company name, contact information and a ‘call to action’ or offer.

What does this mean to you?

Investigate direct mail as an option for your practice. Round out your knowledge of direct mail with a visit to www.targetmarketingmag.com. I’m thinking about offering a ‘How To’ guide especially for mediators with an idea list. Drop me a note at ADRPracticebuilder.com if you want to know when it’s ready.

Try. Fail. Learn. Grow!

Dina