Wednesday, October 21, 2015

Fallacies of ADR Career Advice: Fallacy #2

This is the second in a five-part blog series by HNMCP Clinical Instructor and Lecturer on Law Heather Scheiwe Kulp on advice to law students and young professionals interested in ADR as a career. The series is intended to examine the fallacies our students often hear, and to give us tools for both combating the fallacies and responding with more positive advice. Comments are welcomed!

 

Fallacy #2. People will not respect you unless you’ve practiced law for at least X years

This may be sage advice for someone who wants to be a private commercial mediator or arbitrator. Some people will not respect you if you are a young professional who has not practiced for decades, or if you are not a lawyer at all. Someone who wants to engage in private commercial mediation would do well to speak with potential clients and learn more about what they look for in a mediator-for-hire. Often, it is experience in the substantive area of law.

While this advice is true, it only applies to a small slice of the ADR field.

Those who say a young attorney must develop substantive expertise in a legal field before getting any ADR job do not seem to understand the field. Dispute resolution is about process first and foremost, so developing substantive expertise in negotiation theory and practice, and process expertise in negotiation, mediation, facilitation, etc. can help the ADR student more than substantive legal knowledge. Most lawyers have seen another attorney with substantial expertise in an area of law perform poorly when they have to facilitate a meeting or mediate a dispute between associates; it doesn’t mean they don’t know their legal stuff, it just means they haven’t studied and practiced the intricate, complicated skills involved in facilitating or mediating as much as an ADR expert has.1

The “founding” generation of ADR professionals (as Welsh and Zumeta so aptly name the early adopters in their article [p. 4-5])2 faced a field that wasn’t yet a field. They often had to make the case for improved conflict management itself, let alone their positions as negotiators, mediators, court program managers, or trainers. Usually, the way they did so was by bringing in their substantive legal knowledge and their law degrees. Unfortunately, ADR professionals still often have to justify the need for ADR and the value that we add to the legal profession.

But the occasional lack of respect for a young ADR professional does not mean that the young professional is not competent; it just means that the young professional may have to demonstrate her competence a bit more than a first-year associate, because she’s doing more than document review. She can see this as an opportunity to become a better negotiator!

Preparation, focus on process, and good interpersonal skills will serve the young professional well. When I started in the field, I also found it effective to have an older, more experienced ADR professional vouch for my competence. I am indebted particularly to Susan Yates at Resolution Systems Institute, who would serve as the “face” of a training or consulting contract, then would introduce me as an expert and have me co-run the show. My colleagues and I here are similarly indebted to Professor Robert Bordone for creating positions specifically for “young professionals in the field” in his Negotiation and Mediation Clinical Program. HNMCP has three rotating clinical instructor positions for people 3+ years out of law school (disclosure: I am one of those instructors), and one rotating clinical fellow position for a recent graduate. The Ohio State University Mortiz College of Law regularly hires a Langdon Fellow in Dispute Resolution. The ABA Dispute Resolution Section recently started a Fellowship for young ADR professionals. The American Arbitration Association selects “up and coming” ADR professionals for its Higginbotham Fellow Program each year. These opportunities make use of the young professional’s current skills, and build on them through mentorship, experience, and feedback.

The key with any profession, and with ADR in particular, is that a professional—young or less-young—has to be willing to engage in continual self-reflection, feedback, and growth. I’ve found in my own work that young people are willing, even eager, to be coached and are open to challenging themselves in ways that even my junior-but-not-so-young self is nervous to do. I’ve seen young ADR professionals stand up in front of hundreds and present key concepts of negotiation with energy and accuracy I don’t see from many professors. I’ve been in mediations in which young mediators point out a small motion or subtle word that shifts the difficult conversation toward mutually-beneficial settlement. In these situations, the participants have great respect for the young professional, not in spite of being young but because he is a professional. This kind of risk-taking and constant learning bodes well for any employer who hires these young ADR professionals, either in the far future or immediately after law school.

 

1 Indeed, Isaksen and Gaulin found that an untrained facilitator adds no value to a creative problem-solving process, whereas a highly trained facilitator makes a 700% difference in the outcomes of such a process.
2 Welsh, Nancy & Zena Zumeta, Dispute Resolution Magazine, Spring 2015.

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