Training for Your Chosen Market and Niche

• Author: Victoria Pynchon/Joe Kraynak (With)
• Profession: Mediator, author, speaker, negotiation trainer, consultant, and attorney with 25 years of experience in commercial litigation practice/Professional writer who has contributed to numerous For Dummies books
• Pages: 35-60

Chapter 3

Training for Your Chosen

Market and Niche

In This Chapter

▶ Grasping the fundamentals of the legal process

▶ Transforming yourself from a lawyer to a mediator

▶ Getting mediation experience and education

▶ Becoming certified in mediation

▶ Gaining experience and knowledge on the job

▶ Adhering to mediation ethical standards

A

ny discipline worth pursuing, including mediation, requires prepara-

tion. If your background is in something other than litigation, you need

to brush up on the law and the legal process. If you are an attorney, you need

to balance your adversarial view of dispute resolution with collaborative dis-

pute resolution techniques. Although you don’t need a degree in mediation to

practice, formal training and classes certainly help. And if you’re specializing

in a particular industry or market, you need to find out as much as possible

about it so you can serve your clientele more effectively.

This chapter explains how to prepare yourself for what lies ahead. You find

out what training is required, how to shift your thinking from an adversarial

to a collaborative approach, how to pursue certification, and more. You may

already have much of the knowledge and many of the skills you need to get

started. This chapter helps you take inventory and plug any gaps in your edu-

cation and training.

Acquiring Essential Legal Skills

You don’t have to be a lawyer to practice mediation, but you do need to

understand the basics of substantive and procedural law in the jurisdiction

in which you practice:

36 Part I: Acquiring the Keys to Mediation Success

✓ Substantive law consists of written rules that govern the rights and obli-

gations of those who are subject to it. To mediate contractual disputes,

for example, you need to know the basics of contract law. To mediate

marriage disputes, for instance, you must know something about the

laws that govern divorce, custody, and distribution of property. (For

more on contract law, check out Contract Law For Dummies by Scott

Burnham, published by Wiley.) The same is true of all other areas of the

law applicable to your mediation niche.

✓ Procedural law consists of the rules a court follows in hearing and

determining what happens in criminal or civil proceedings. Chapter 5

takes you through the legal process that applies to most civil lawsuits.

In addition to getting some formal training, you also need to understand how

lawyers think and what they have to deal with so you can form constructive

relationships that benefit the parties in a dispute. I discuss these points in

the following sections.

Acquiring formal training

Courts that permit people other than lawyers to mediate litigated cases on

court-annexed panels usually require that they take a full- or multi-day course

that covers the legal process and the general substantive law that all attor-

neys learn in their first year of law school, including contracts, torts (wrong-

ful acts that result in injury to others), real property, and civil procedure.

If you intend to specialize in mediating certain types of disputes — construc-

tion defect cases, for instance — take any reasonably priced course a local law

school offers or a continuing education program related to the law that con-

trols that type of dispute.

Knowing the law gives you a deeper understanding of the interests and

motives of, and pressures on, the parties and their attorneys. Many of those

pressures arise from procedural forks in the road and the substantive law

that controls the outcome if the case goes to trial.

Gaining insight into the litigator’s mind-set

To successfully mediate litigated cases, you need to understand the litiga-

tor’s mind-set, which can be summed up as this: Control the field and win by

any legally permissible means. A party in a dispute doesn’t generally hire an

attorney to collaborate, cooperate, compromise, accommodate, ingratiate,

reconcile, conciliate, yield, give up, give way, ease, or concede. The attorney

doesn’t want to settle. She wants to win. Unfortunately, by the time lawyers

bring their clients to you, they’ve usually decided that they can’t win or that

the cost of winning is too great to justify the expense of trial. So they shift