The Aluminum Age of Mediation

For those that do not know me, I am a mediator and Restorative Justice facilitator. Like most professionals in my field, I have certifications as a mediator through the Supreme Court of Florida, the US Department of Agriculture, etc. I received my Restorative Justice training through the University of West Florida’s College of Professional Studies. In keeping with my certifications, I also have degrees in Social Sciences and Business Administration. I’m even certified to assist in the training of future mediators!

Needless to say, I am a professional. With 20+ years of experience in the field of conflict dynamics, I’ve seen a lot. Ironically, most of what I have seen cannot be discussed since, like a lawyer or doctor or priest, the law protects consumers from me divulging what goes on in a mediation. Everything I do is confidential and privileged.

You see, I operate under a strange veil of confidentiality where I never know my clients, my clients never know me, I can’t have a say or an opinion in the matter, and we all part just as mysteriously as when we first assembled.

However, in regards to the actual practice of being a mediator, the gag is lifted. I do have a say, and I plan to say much today in this piece.

Cognitive Excrement

There is a Chinese curse, “May you live in interesting times.” Two years ago, precisely March of 2020, the world learned what it meant to live in interesting times as the Corona Infectious Disease-19 virus, a novel Cold-virus variant, infected country after country. In their typical strong, confident, White, middle-aged, male voice various news reporters lied to us saying, “Stay inside. Isolate yourself. Isolate anyone who might be infected. It’ll only be two weeks until all can be figured out . . . just two weeks.”

Government agencies promptly shut down practically everything, often ignoring legal rights of individuals and businesses alike. Pastors were being arrested for holding services, anglers were arrested for fishing, stores were refusing to take returns on items, and distributors were being forced to stop shipping goods. All of this was done in the name of the public good.

Two weeks turned into months. Insurance companies refused to pay for lost wages by business owners. The federal government refused to give loans and grants to many small businesses and private contractors since they did not have employees. In total, millions of businesses were shut down permanently while the economy lost countless billions in revenue.

I even had to give up three of my businesses. Moreover, there was a ban on mediations. So, I had to find money where I could. This ended up putting me at the front lines of the CoVID-19 pandemic working in the health care system.

We were put into situations no one should have to face.

During this time, a lot of mediators, for various reasons, took up writing and vlogging. One day, I remember reading this one article that I can only refer to as nothing but a total work of cognitive excrement. This aged mediator pontificated on how his role as a “neutral party” was so important that he didn’t have any facilitative words in his lexicon to utilize. He noted how he didn’t have any tricks or tactics to entice the parties to see the matter from a different vantage point. Ultimately, he had nothing, and brought nothing, to the table to help his clients because he felt being “neutral” was the most important aspect of being a mediator.

Needless to say, this outraged me to no end. Had it been in a printed format, I would have slung the magazine across the room in utter disgust. However, it was not in printed format. I was reading it on my cell phone. So, I was instead inclined to read the online comments in the hopes some of my colleagues would rail against this buffoon who was making a mockery of our noble practice. Instead, I could scarcely believe my eyes! They were exalting this imbecile as if he were some great swami, or guru, of the conflict resolution arts.

The Bakery

Now, let’s fast-forward to a few weeks ago, where a friend shared with me a picture he took at a local bakery.

The picture was of a hand-written sign on a dry erase board that read, “Why our prices have gone up.” Below it were four columns. One column was items the bakery needed for making their products (i.e., flour, cake flour, 30 lb. eggs, 30 lb. sprinkles, fresh yeast, salt, granulated sugar, powdered sugar, and doughnut shortening). The other columns were listed as “Jan. ‘21,” “Jan. ‘22,” and Jul. ‘22” respectively. As I began reading the picture of the sign, I noticed the prices had more than doubled between January 2021 and July 2022. For example, all purpose flour went from $12.19 per unit in January 2021 to $28.88 per unit in July 2022. In most of the cases, this doubling of prices was seen in the seven months period between January 2022 and July 2022. For example, 30 pounds of eggs cost the bakery $47.30 in January of 2022 and then went up to $92.02 in July of 2022.

The Business Side of Things

All of this got me thinking about the business side of being a mediator.

If you know anything about retail, or business in general, then the term “customer acquisition cost” is something that you should be very familiar with. Typically, businesses have to drum-up customers through advertising and incentives. When you take the total costs to gain new customers, and divide it by the number of new customers obtained during the campaign, you get the customer acquisition cost. In other words, let’s say Sally’s Florist needs new customers. Based on previous customer generating campaigns, Sally knows she has to pay $15 per head to get new customers into the shop. After that, she has other data to tell her what percentage of the new customers become repeat customers and their purchase average per visit. Once she mines all this data, she can better plan. She knows that it may cost $15 per head for new customers but 80% of these people will be repeat customers who spend $75 a month on average. I don’t know about you, but I’d gladly spend a one-time cost of $15 per head to make $900 per head annually.

This is how businesses typically work. You figure out how much it costs to get new customers, you try to increase the chances that they routinely trade with your business, and you then try to increase either the frequency of trade or the total amount spent per visit. As the costs of doing business rise, you simply raise your prices accordingly.

However, being a mediator, our business model doesn’t work in the same way. In fact, it is illegal for me to even use common business practices such as what I just explained.

You see, being a mediator is very much a “You eat what you kill” business model. Unlike other business models, where you rely upon repeat business, mediators are a “one and done” type of profession where we are prohibited from knowing our clients prior to mediation. If you hire me as a mediator for an issue, the laws are very specific that I can’t be hired on again for another issue you might have. This is because the law requires all mediators to be impartial or “neutral.”

So, being I am prohibited from using repeat customers, my options are limited as a mediator.

One solution is to advertise. The problem with advertising is that it is very expensive and often yields poor results. For a typical advertising campaign, it is nothing to expect to spend $10-$20 thousand. With most businesses, a 10% customer response is considered to be a very good response rate. However, with mediations, I have to find people who are either being evicted, divorcing, being sued, or having some other major dispute forcing them to spend extra money (that they may not have) in order to talk with the other side (whom they probably don’t want to talk with in the first place). So, in all honesty, a 1% customer response rate would be considered a very high rate indeed for a mediator advertising campaign. Actually, a 0.5% return would be extremely good. In other words, let’s say $20 thousand in advertising yielded me with five brand new customers. Let’s say each mediation lasted, on average, two hours. This means I made a net loss of -$16 thousand. Not good! Moreover, once I have mediated for these parties, they can never use me again.

Another option is to use a little “gray area” advertising and market directly to lawyers. This is generally legally allowable for mediators because lawyers have different clients all the time, and you are mediating issues for their clients and not the lawyers themselves per se. The problem here is that lawyers tend to be extremely biased in who they pick to mediate their cases. More specifically, they often want to use mediators, who are also certified as lawyers, rather than non-lawyer mediators. The reason for this is largely because lawyers tend to love theatrics. Even though a mediator is prohibited from rendering legal advice, lawyers tend to like knowing that, should they get over-zealous in their theatrics and forget an element of the law, a mediator (who’s also certified as a lawyer) can pull them to the side and whisper something like, “I know you got a little amped up just a minute ago, but have you thought about how this will impact the statute-mandated payout schedule?” In other words, they depend on the lawyer mediators to reign them in whereas non-lawyer mediators typically require them to act as professionals and be responsible for their own actions — something that far too many attorneys are reluctant to do.

Why do they feel this way? It’s simple, about 85% of the time I can solve a case in mediation. For the clients, when they see me, this is about as close to “their day in court” as they will ever come. I don’t have shining armor or a white horse, but in many ways I am their saving grace. When I come on the scene, as much as they may loathe me, or see me as a technicality or an annoyance, I often can get their matter resolved. I end up saving them time, saving them money, and I also usually save them in added fees that a trial would induce. For the attorneys, many of them know this. So they need to convey to their clients that they are doing their best to defend their rights. For the sole purpose of theatrics being perceived as a necessity, there is a huge bias in the legal profession giving favor to lawyer mediators over non-lawyer mediators — even if the non-lawyer mediators might be better at what they do. This means for every 1000 lawyers I reach out to for potentially using me with their mediations, I might get one since I am not also certified as a lawyer. This equates into about a -$19.2 thousand net loss in any potential advertising campaign

As you can see, advertising for a mediator often isn’t a viable option.

Then, there is another issue, which most mediators never discuss. About 75% of the potential case types are regulated by the government. This means either arms of the government or non-profits (commonly called “Non-Governmental Organizations” or “NGOs” or “mediation centers”) are given jurisdiction and control in these matters. Got an eviction taking place? Well, depending on what state you live in, either a non-profit or a court-based agency will handle your mediation. An airline or train union is about to strike? The government has a mediation agency that will handle this issue. You are a farmer and the USDA has issued a denial for your crop loss? That’s okay because they hire non-profits to handle these matters through mediation. You say your roof was damaged in a storm? Guess what, if you live in Florida, the Department of Financial Services will assign your case to a mediator free of charge!

For this reason, >90% of most private mediation practices are based upon contracts with non-profit mediation centers and/or governmental agencies. In my own practice, I mediate for multiple states and multiple agencies. I’ve extended a great deal of money and time because each agency or center has a certain level of mediation certification that is required along with other additional requirements. The problem is, in most cases, what they pay mediators is based upon 1990s fee schedules. To compound these issues, the fee schedule is at a reduced rate because there is an implication of value from the contract (i.e., the center will schedule the mediations and handle the clients, the center will feed the mediator 10–20 cases per week, all problems and questions will be fielded and answered by a dedicated case manager, and the mediation center will pay for a translator if needed). The problem is, as time has progressed, more and more duties that were once handled by the mediation centers are now being borne by the mediators. In many cases, I am expected to do all of the scheduling, customer relations, and more while receiving 1990s-era pay.

And, unlike the bakery listed earlier, I can’t just up my fees. In most cases, these centers and agencies are codified into law or given jurisdiction by judicial order. I cannot operate outside of their purview. Moreover, the prices are set by them, or a higher regulating authority. Oftentimes, I’m never given a voice in the matter and there is no one, and no organization, to advocate on my behalf.

To put things in perspective, I handle both regulated and non-regulated cases. A regulated case is one where the law requires the case to go through an authorized agency or NGO. Typically, I charge $400 per hour to mediate non-regulated cases online. If I have to physically meet with the parties, I charge $500 per hour because the extra travel and set-up time takes me away from my business and other revenue-generating mediations. Admittedly, I am on the lower end of the scale because I live in a more rural community. If I lived in Miami or Orlando or Tampa, I could easily charge $900 to $1,200 per hour as some of my colleagues routinely do. As is typically done, these fees are to be paid on the day of the mediation. In contrast, I have one government contract that pays $60 per hour for me to mediate a regulated case. Another government contract pays me $200 per case with the average regulated case lasting three hours. With this contract, they even have the audacity to require me to find my own clients — totally negating their purpose, at least in my mind. Other contracts pay $250 per regulated case with the average case lasting three hours, me expected to do all of the scheduling, etc. Yet another government contract I have pays $300 per regulated case.

Still, this all sounds very nice. After all, even on the low end, $60 per hour is a lot better than what most people make. But, what really isn’t being said here is all of the fine print and exceptions in these contracts. For example, what not is talked about is how the mediation centers and agencies put much of their work off onto the mediators. This means I might have hours, if not days, of dealing with clients in order to get the cases even scheduled. So, in truth, that $60 per hour turns into about $3 per hour that I then have to pay taxes, Social Security, etc. on. With one contract I have, I do not get paid if the parties have not paid the agency their mediation fees. In other words, I am assigned and work the case, then I don’t get paid because the agency didn’t take the fees in (yet, because I am not technically an employee of the government agency, I don’t have access to their system to ensure the fees are paid before I mediate the case). In one case, the agency I worked for took over the company that I mediated the case for. When I demanded my money, I was told the state would get its money and I got nothing for my efforts. With another agency, I get paid only half my fees should the parties cancel/settle prior to mediation. Still another pays me nothing if the parties cancel/settle prior to mediation. In other words, I might have exerted hours, if not days, dealing with difficult clients (doing the work that should be done by the mediation center), and then I get half to nothing for my efforts. Considering I do get paid my full fee, there is still the processing of the paperwork and payment. For some contracts, I have to do a monthly billing where they can take up to a month or longer to pay me what I am owed. With one contract, one of the clients pays me. In this case, the agency can take up to a week or longer to process and invoice the paying client; who then has just shy of a month to pay me. If they don’t pay me, then it is up to me to collect. Moreover, instead of feeding the mediator 10–20 cases a week, many of these contracts might only yield less than five a month! Worse yet, many of these agencies and centers are only partially staffed. So, if I have a problem, it can sometimes take up to a month to get a response.

I guess it would be fair to say that $60 per hour is becoming less and less appealing to you now.

A New Age for Mediation

Needless to say, that all is probably more that has been said in one article than I have read in all of my 20+ years career.

After much reflection upon all of this, I recently was speaking to a friend. Like many in my inner circle, little is known about what I do and what all goes on. I might give friendly advice on how to facilitate a discussion or something, but most really don’t know much about what it is that I do or deal with. Again — a veil of confidentiality. Still, that doesn’t stop people from asking about the profession or trying to get insights into what it is I really do.

On this occasion, I was very reflective and said to him, “You know, we’re no longer in the golden era of mediation as a profession.” Unsure of where I was going with all of this, he responded back, “So, what era are we in now? Diamond? Platinum? What?” Channeling my inner Dan Whitney, I responded back with my hands positioned in a displaying fashion whilst sarcastically extolling, “Aluminum!”

As I see things, we mediators, as a profession, have placed so much emphasis on being “neutral” that we’ve devalued our existence altogether.

Neutral implies not moving under one’s own power . . . being stuck in one’s own lack of action. Indeed, an argument can be made that this is why we mediators, as a profession, are seeing this devaluation.

Think about the 1990s era pricing that we now mostly operate under. When I first became a mediator, my colleagues routinely took cruises or flew out of the country for various vacations to decompress. One mediator told me, “I’m making more money now than I have ever made in my entire life!” Everyone was jubilant. But why?

Between the 1990s and early 2000s, mediation fees accounted for roughly 20% of the overall court costs. By 2010, less than 15% of the overall court costs were represented by mediator fees. Now, mediation fees make up less than 1% of the overall court costs.

Naturally, mediators don’t base their fees on court costs. Instead, court costs represent an economic benchmark from which we can compare the valuation of mediation over points in time.

You see, starting in the 1980s, the profession’s forefathers did a fantastic service to us mediators. They had mediation codified into law. Moreover, they had certain case types regulated to where mediators did not have to fight each other for work. They essentially laid out a fantastic infrastructure where all could benefit and raise up a proud and noble profession.

During this time, we were taught facilitative dialogue and tactics. People like Ury did great works on how to get to an agreement, how to get past disagreement, reframing issues, etc.

The problem is, with all of the concern about creating a profession, regulating it, certification processes, empowerment of the professionals to thrive in their practice, etc.; no one bothered to think about economics. No one cared to think about the need for lobbying or activism or mediator advocacy. Indeed, there was this overwhelming naivety that this profession would do fine to stay on “auto pilot” and without need of maintenance or intervention by subsequent generations. The utter lack of forethought is nothing short of mind-blowing!

In truth, much of these 1980s forefathers of mediation either were retired or dead by the time the profession started to become devalued in 2010. Like the proverbial frog in the boiling water, the ones that were left succumbed to that same level of naivety and lack of critical thinking that led to the devolution of this noble profession.

School-based peer mediation programs, aimed at rearing up the next generation of professionals, started teaching how no mediator should take pride in their level of expertise or boast how great they are in their field. This sentiment was mirrored by the adults. Soon, a new line of thought crept up that posited a wrong-headed belief that we mediators fall out of neutrality by seeking to change perceptions.

In other words, if I do my job as I was taught, I haven’t properly done my job. Like the aforementioned article, which I refer to as “cognitive excrement,” this growing counter-culture posits that a mediator shouldn’t facilitate dialogue or recraft understandings to challenge perceptions. Moreover, they believe that mediators should have no opinion or say on anything — ever!

Simply put, the morons are taking over.

A Path Out

If I were to be asked what we need, as a profession, to dig us out of this hole, I’d only have one answer, “Advocacy!”

As I mentioned earlier, most times we mediators do not have a say in our profession. Agencies set fees, regulations, etc. and we are never consulted. Moreover, to this date, for all the mediator-based organizations that abound in America, there’s not one single advocacy group that speaks on behalf of mediators.

A few years back, I remember a speech the president of the Florida’s teacher union was giving to the legislature. When asked about how the union was not safeguarding the needs of the children, the president replied, “When students start paying union fees, we’ll advocate for them.” In other words, that union president was centrally focused on the professionals fueling the whole system that those talks had been established to talk about. No other issue was more important.

Personally, I found the comment utterly distasteful. Still, I do appreciate the tenacity.

In a former life, I was once involved in politics. I even held a minor elected office where the Governor of Florida would ask for my input — not that he actually listened. I’d routinely meet with congressmen, legislators, senators (both federal and state), commissioners (state, regional, and county level), mayors, etc. What I always found reliable and steadfast, besides the appalling amount of self-serving greed with these elected officials, is the level of advocacy from certain special interest groups. Have an issue about guns? You’d better expect to see the NRA before you open the doors for the day. Want to modify some benefits to the elderly? Get ready for the smell of medicated menthol to assault your olfactory senses as the AARP lobby shuffled their way towards you in a slow stampede, blocking all exits for escape like some horrible scene from a zombie flick. Want to do something regarding animals? Expect an onslaught of people from ASPCA and PETA so peculiar they looked like they came straight off the set of “Joe vs. Carole.” Even the morally-challenged Revs. Jesse Jackson and Al Sharpton didn’t fail to disappoint as they’d roll up in their limo, step out as the car drove around the parking lot, they’d fit in tight with their 12 or so paid “protesters” for the news crews to zoom in on, they’d step back into their limo, and then later that night the news would report how these two “great champions of social injustice” met with “numerous protestors” who had “gathered for the day” to speak out. In truth, the whole deal lasted five minutes and yet the news report depicted a scene where nothing could be done that entire day because everyone had shown up in protest to gridlock the system. It was all fantastic political theater! Indeed, it both made me lose all faith in our representative republic form of government whilst also giving me faith that advocacy at least has an impact on the workings of this corrupted government.

The older I get, the more I long for some champion to assault the halls of Congress or ambush someone in the lobby of the legislature to talk about how mediator wages haven’t increased in three decades while the cost of living has increased three-fold. I’d like some advocacy to make them answer why it is okay for our noble profession to be devalued twenty times less than that of what it was in 1990. I want some many voices clambering for attention on my behalf that the staff all have to duck out for a stiff drink to recover from the madness while they reevaluate their life goals. I want a voting block so strong, and a voice so financially powerful, it’d make them long for the opportunity to deal with the NRA, PETA, and AARP lobbyists all at once!

Therein lies the problem, for all the organizations that exist for mediators (i.e., American Arbitration Association, American Association of Mediators, Association for Conflict Resolution, Florida Academy of Professional Mediators), not the first organization is tasked with the sole duty of mediator advocacy. True, they will lobby for practice guidelines, practice enhancements, etc. However, none truly lobby for the individual mediators. They don’t do anything to protect our certification status, protect us in the marketplace, advocate for increases in pay, etc. In short, they are useless.

We need to break free from the mindless zombies of this emergent counter-culture proclaiming mediators must remain neutral at all times and be voiceless outside of a mediation conference. Instead, we need to organize, we need to task one or more organizations with profession-advancing lobbying powers, we need to speak out, we need to assemble, we need to do grassroots lobbying (i.e., writing handwritten letters to key elected officials), and we need to fight at all costs to take back our legacy if we are to ever dig our way out of this mess.