Tue 09 Jun 2015

Money Talks - Co-Mediation and Fees: On Co-Mediation Part V

Posted by Sharon.Sutherland

Something about discussing money causes many professionals embarrassment. 

A sense of awkwardness can arise even in mediators who have mastered the art of the difficult conversation (so long as it’s someone else’s difficult conversation).  It’s not surprising that one of the most common concerns expressed by mediators regarding the possibility of co-mediation is the difficulty in addressing fees for two mediators with clients.  I want to start with a simple reminder that negotiation and management of difficult topics is precisely the skillset we are offering to clients: if fee discussions make you squirm, it can help considerably to give conscious consideration to the application of the mediation skills you would utilize if you were assisting two other parties to negotiate a deal.  (Just as many of us catch ourselves being far less skillful in personal conflict with family and friends than we ever are when professionally engaged, we can also lose sight of the fact that negotiating fees is something we have all the skills to do well – as long as we’re wearing our mediator hats instead of any awkward, private life hats we might switch into from time to time.)

Sharing fees?

One of the primary reasons that fee sharing between co-mediators or a mentor and mentee is important to address is that most mentees will seek experience in order to join one of the Mediate BC rosters.  For their participation in a mentored mediation to count towards the Civil Roster’s 10 mediation requirement, the mediation must be fee-paid or part of an approved mentoring program.  Private arrangements between two mediators will not fall within an approved mentoring program, so the mentee must receive some portion of the mediation fee (at least 1/3) for the mediation to count. For this reason, I’m only discussing arrangements for co-mediations (not observations) and presuming that fees will be split.

Each mentoring/co-mediation situation is different, and while most learning mediators will have an interest in roster certification, it is helpful to treat each mentoring arrangement (and even each individual mediation within an arrangement) as an opportunity to explore interests and come up with a plan that benefits all participants.

Negotiating with the student mediator

There is a wide array of possible arrangements that one can make with a learning mediator, just as there will be a wide range of interests on the parts of both mentor and learning mediator in entering into co-mediation. A few of the most common arrangements include:

An arrangement for a set number of co-mediations to meet Roster qualifications combined with a set number of co-mediations or referrals following

Many new mediators are seeking a specific number of fee-paid mediations to meet Roster qualifications (usually up to 10).  As a consequence, they may well have an interest in a longer arrangement, rather than a one-off co-mediation opportunity.  In these circumstances, the mentor may provide the initial co-mediations and may bill their client the usual fee.  Payment of a negotiated portion of that fee to the learning mediator might be viewed by the mentor as “giving back to the community” or “paying it forward” following mentoring opportunities someone offered them in the past.  In that case, the mentor will likely be open to a few such mediations in a year, treating them much like pro bono mediations which they might similarly (or otherwise) take on.

Alternatively, the arrangement might be conceived of as an exchange: a portion of the mentor’s usual fee for X mediations for any of the following (and more):

• A set number of referrals for co-mediations with the mentee once the mentee is on the Roster. (This typically presumes that the new mediator has a distinct referral base or area of expertise that the mentor would normally not receive referrals from);
• Referrals to the mediator from the mentee’s own continuing practice as a lawyer, psychologist, etc. (There are potential issues of conflicts of interest, but an agreement would address the ability of the mentee to make referrals or to encourage colleagues to make referrals);
• Other forms of work exchange (e.g. I have traded co-mediations for administrative help in scheduling mediations and billing. One might also exchange other services of value that a mentee can provide such as website design expertise, social media support, or any of a wide range of tasks.  And the trade need not be for professional services: I have seen parties to mediations settle the last few dollars of a dispute with an exchange of services such as hairdressing, cooking for each other, sharing of “comp” tickets for theatre, etc.  In mediations I will ask parties to consider whether there is anything else of value they might want to bring into a “stuck” discussion.  We can certainly do the same in exploring our own interests.  Think creatively!)

An arrangement for a single co-mediation based on a referral from the mentee

This is likely the most straightforward arrangement for fee sharing.  The mentor would not have the case (which includes the opportunity to build his own practice in a different area) were the mentee not to bring the case to him, so the financial considerations are limited.  It’s still relevant to consider lost time from other business opportunities, the number of such mediations one can afford to do, etc., but it is typically easy to weigh these kinds of considerations against a simple, shared fee – even if that fee is for less than the mentor might have billed on his own.

These kinds of one-off arrangements turn on fairly straightforward questions:

• Do I want to help out this particular mediator?
• Am I interested in the case, or case type, or the business opportunity of gaining experience in this area, or anything else?
• Will it prevent me from doing something else?

If one takes on the co-mediation, then the fee split should be a straightforward negotiation. 

An arrangement for a single co-mediation of a case referred to the mentor 

Clearly there is more involved from the mentor’s perspective in a negotiation regarding splitting their own fee for a mediation with a co-mediator seeking experience or mentorship.  For many in the BC mediation community, the existence since 1998 of the Court Mediation Practicum Program and other Mediate BC practicum initiatives has normalized the idea that a learning mediator might pay to participate in a mediation to gain valuable training and experience.  Within that context, sharing fees with someone asking to learn is not entirely intuitive.

It may be helpful for a mentor to keep in mind the benefits (professional, personal, and possibly long term financial) that can result from a co-mediation so the notion of giving up a portion of fees is consciously weighed against the real, if less immediately “countable”, benefits. (These benefits have been discussed throughout this series.)  With that in mind, it is also worth contemplating whether any additional benefits to the clients arise from the co-mediation that might justify charging a higher fee for the two mediators. (The negotiation with the client is discussed further in my next post, but consider whether there might be an advantage gained by the clients that should be recognized.) Essentially, as with any negotiation, carefully thinking through the risks and potential benefits to each party, and contemplating the potential for “expanding the pie” by including the possible interests of the clients in the discussion means that the best agreements are available when one has genuinely prepared to problem solve rather than simply responded in the moment to suggestions.

An arrangement for sharing pro bono mediations

I wrote in last week’s post about the potential to co-mediate pro bono and fee-waived or reduced fee mediations.  In that post, I was focused on the potential to provide a learning opportunity for peers, but, one might choose to co-mediate with a mentee in pro bono mediations you would take on in any event.  In such cases, fee sharing is, for the most part, eliminated from the negotiation between co-mediators.  However, learning mediators may well wish to have these mediations counted as part of their requirements to join a roster.  In principle, there should be no difference between a mediation in which the mentor and mediator share fees of $1500 via a ⅔:⅓ formula and a mediation where a fee of $0 is split on the same basis.  If the learning and participation of the mediator is the same, I would argue that the experience should be considered in the same way by the Roster Committee.  However, I would strongly suggest that mediators considering such an arrangement, and hoping to count a mediation for Roster credit, seek confirmation from Mediate BC before relying on an assumption that any such mediation will count.

[Editor's note: The Roster Committee wants to ensure each mediation counted toward the experience component of a Roster application is a "true" mediation and not a less formal problem solving exercise; fees and the use of an agreement to mediate provide a good differentiation between the two types.]

[Update: The Roster Committee now accepts pro bono mediations as experience toward a Roster application. The new policy reads: "For a mediation to count as experience toward a Roster application, some monetary consideration must be made to at least one of the mediators or it must be a pro bono mediation in a structured setting. If there are uncertainties, it is the responsibility of the applicant to describe the setting and circumstances on his or her application so the Roster Committee can decide on a case-by-case basis."]

An arrangement between a mentor and a “cohort” of learning mediators 

I don’t know anyone who is doing this explicitly, but I think a symbiotic relationship could be developed by a mentor working with a group of learning mediators sharing subject interest.  Writing this blog has inspired me to consider developing just such a cohort!  What I am imagining here is that a single mentor might well work with a group of individuals training to be mediators who all share a community with common issues to mediate.  For example, many minor sports associations are developing volunteer board members’ expertise in conflict resolution so they can play the role of mediator in disputes between parents and coaches, parents and parents, junior athletes, etc.  At the provincial level, sports associations are at highly varied levels of development of dispute resolution expertise despite requirements to have dispute resolution processes in place to receive some forms of funding.  Even greater diversity exists at the community sports level.  A mentor with an interest in sports mediation might very well work with a group of, say, five board designates to train them in conflict resolution and/or to co-mediate the first disputes that go to mediation within the organization.  I use sports organizations as an example because of my own experience in many capacities with such organizations, but the same model is feasible for other groups such as clubs for any hobby or interest, any residential community (from school residences, through strata corporations, and seniors’ centres), not-for profits (where disputes with volunteers can be common), special interest groups, etc.  Think about your own areas of interest and connections: is there an opportunity to help develop a better community culture of conflict resolution through co-mediation with existing leaders?

In Part VI of the "On Co-Mediation" series, Sharon continues her thoughts on co-mediation fees but as they relate to the mediation clients.

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

Today's guest blogger is Sharon Sutherland, a Mediate BC Civil Roster mediator and a committed and experienced mediation mentor.  Sharon has designed and managed practicum programs for Mediate BC, and has mentored mediators in the Court Mediation Practicum, the Child Protection Mediation Practicum, UBC Law’s clinical mediation program, CoRe Conflict Resolution Society mediations, Toronto Small Claims Court, New Brunswick and Northwest Territories’ child protection mediations, and by private agreement in civil and strata disputes.

[Editor's note: Many of the posts in this series refer to the personal experiences of the author. When considering applying to a Mediate BC Roster, please be sure to review the requirements at mediatebc.com.]

This post also now appears on True North Dispute Management.

Photo by Jimi Filipovski on Unsplash