Expert: Timmy Chou - 10/14/2010

Question
QUESTION: Hi, Mr. Chou... I'm not for sure if my question is actually in your area of expertise but because my question concerns a possible career path that is somewhat in the same field... I figured I would get your insight as well as the insight of another expert on the sight.

For years now I have decided that I wanted to go to law school. I graduated in Dec. 2008 from Purdue University with a 3.4.I have taken the LSAT twice and I have gotten less than desirable scores (I have NEVER told anyone my scores because I have this weird superstition that it will jinx me the next time I was to take the LSAT)lol. Instead of beating myself over the head about it(which is what I did for about 2 years), I decided that I am going to accept my score and do my best to make my applications as strong as I possibly can.  I will be applying to many tier 3 schools and a few tier 4 schools. I applied last year to some of these same tiered schools and was accepted however, I had to turn them down due to money issues and no scholarships.  So I have taken the LSAT again, moved to the state I wanted to practice law in (so that I would qualify for in state tuition), and I am on the prowl once again.  For years I had settled on civil litigation.  For about the past year I had switched to commercial litigation.  Now I think after a ton of researching I have completely decided what "it is" that I am actually interested in and that is negotiating business contracts/ deals between companies/individuals.  Finally to my question... I know that law school would be of great assistance in this field because law school enables me to learn about the business/financial terms/concept/ industry in general..... as well as the art of mediating and negotiating. However, I'm not sure that actually practicing law is what I want to do anymore. I don't really have the desire to file lawsuit and represent a party in courts; just want to be an expert in negotiating contracts and deals. Is it still possible to find reputable and financial rewarding work in closing/negotiating business deals w/o actually taking the bar and practicing law?  If so, is there an actual title to what this career is actually called?  I'm sure there are different paths and different titles but I was having difficulty actually finding a path on the lines of this work and would highly appreciate a few names thrown around if you have any. I always thought litigation was for me when I was younger and to be completely honest I think I made the same mistake most young high school students make and that was being interested in what I saw on tv (which is mostly always litigation) lol.  However, I decided that I think negotiation is much better for me and I would like to do that in the business field. If I am not too focused on taking/passing the bar (and if its possible for this field)... do you think that attending a tier 3/4 school is all that bad of an idea?  I figured a few of the pros is that most of the tier3/4 schools are cheaper and although many of them have lower bar passage rates; I really wouldn't have to worry about it much if I don't plan on practicing law/ working in a law firm. What do you think about this?  Would a company think in a negative way because of the reputation a school holds if the career doesn't pertain to actually practicing law; or would they be more focused on the knowledge and skill I have picked up through attending law school although it wasn't necessary for the position?  Sorry so long, I just wanted to to get some good insight so any info is highly appreciated.

ANSWER: Thank you for your question.

Mediators, as you may know, are trained in specialized facilitation skills and work to bring disputing parties together to work out solutions.  They specifically do not advocate any position or try to persuade parties to do one thing or another, but they typically will work to identify the core issues underlying disputes and try to assist the parties to craft creative solutions.

The ADR profession is still really in its infancy in many ways and only primitive professional structure exists for practitioners in many states.  Often, virtually anyone may provide services as a mediator.  However, licensure is offered in many states, some with training requirements and others merely requiring the oversight of another licensed mediator for a time.  Interestingly, few states will forbid you to offer services if you are not state licensed.  For example, a sample of the Virginia mediation code and rules is available here:

http://www.courts.state.va.us/drs/main.htm

My experience is that effective mediators have taken advantage of some specific training because the role of a neutral facilitator is quite a different role for "problem solving" personality types.  Lawyers and therapists, for example, may have to retool their natural professional approach and behave in some counter-intuitive ways.  

Quite a range of training is offered from Master's degrees to specific certificate training (such as ADR in health care settings, for example).  It is not necessary to go to law school to be an effective mediator, though many lawyers offer mediation services (and many have really no training to do so).  ADR is offered in certificate programs and undergraduate schools and graduate schools across the country.  

Arbitration professionals, since they are required to actually "rule" in disputes, are almost always content-experts in the area of their work (contractor disputes, for example, and many are retired judges or lawyers).  Obviously this field is much more difficult to penetrate without some experience.

The best online resources are found here:

http://www.mediate.com/

and here:

http://adrr.com/

Other excellent information resources may be found at these professional organization sites:

American Bar Association:

http://www.abanet.org/dispute/home.html

American Arbitration Association:

http://www.adr.org/

Seminars on ADR are likely offered through law schools or through local court systems in your location.  Be sure to check out the ABA site.

The truth is that it is very difficult to "start out" as a mediator or arbiter.  Virtually anyone who gets into the field permanently as a career has come from some other field and is able to rely on related expertise and income.  Typically professors, attorneys, people with state department experience, therapists, and consultants have the credibility and financial resources to make a career viable, but almost all of us begin (and continue) mediation work relying on income from our primary expertise.  Typically, for example, a new mediator gets trained and begins a practice by getting on the state mediator list.  However, there are usually dozens of more experienced people on the list and you have to just sit there and see what happens.  Other than the yellow pages perhaps, it is not usually cost-effective to advertise (except for divorce mediation in some states).  My primary cases come by referrals from colleagues or lawyers that know my work over the years and trust me.  Rates are about $150/hour.  Only about 1 out of 5 referrals actually become cases I hear and bill out -- as I typically spend time qualifying the parties individually on the phone before agreeing to mediate the case.  

I can tell you that mediation is by far some of the most rewarding work I do and when successful it makes a big difference in people's lives.  It has never been, however, a source of significant income.  The big money in mediation is in teaching, or in areas like environmental mediation, peacemaking (diplomacy), health care, insurance, human resource, or other large institutional or governmental settings. This usually is just another job -- but at least it is rewarding if successful.  Divorce mediation has emerged in recent years as a somewhat successful private business model in some states where the mediated settlement is allowed as a stipulated judgment, but divorce lawyers are not happy about being cut out of the process.

Some career paths are emerging in some states through local government and court systems.  These jobs are typically around court-ordered mediation for divorces, small business disputes, and often around victim-offender mediation.  They are usually staff level court-system jobs that do not pay tremendous salaries.  Some states and private foundations sponsor and fund quasi-governmental mediation "centers" in a non-profit model.  These are few and far between.

If you are committed to this career path, I would encourage you to spend alot of time up-front in as many training venues as possible.  Numerous groups sponsor seminars and certificate programs in everything from health care to military mediation.  If you put a serious oar in the water and jump out there full-speed, you can make things happen, but it will take time and you will have to spend considerable time in volunteer mediation sessions as you develop credibility with your local peers.  

I am not convinced you would be advantaged with a law degree if the object is the practice of ADR.  You would be better served by a undergraduate and then masters degree in ADR I think as you would spend your entire time actually learning and practicing the art of ADR, while once you finished your law degree you would just be BEGINNING your ADR education, without very much career boost from the JD. (IMO)

In my experience a law degree tends to be problematic for many non-attorney careers.  Just having a law degree does not provide you with the content expertise to do much in other areas of business, although you do learn to think and problem solve.  But a JD can often leave you appearing over-qualified, or give people the impression that you are not going to be looking long-term at any non-attorney position.  A law degree CAN be useful AFTER an MBA, PhD or MD degree however.  

Feel free to follow up with any other questions.

Good luck to you!

---------- FOLLOW-UP ----------

QUESTION: Thank you very much Mr. Chou for all the great info. I know that you are in mediation/arbitration but i was wondering if you knew anything about contract negotiation specialists/managers? i beieve this is quite different than mediation? any thoughts from your knowledge about how a law degree would be beneficial for this field? i was interested in commercial contract negotiation and was thinking that studying commercial law as a specialization in law school would help me learn the financial aspects of the career as well as learning necessities such as creating and negotiating contracts.... any thoughts?

Answer
My experience with commercial contracts and license agreements (and with various agents, specialists and attorneys) has taught me that there are generally two aspects that emerge as the critical elements in contract negotiation.  First is technical thoroughness, where very smart lawyers and specialists try to inch out the best leverage for their clients through their documentation prowess; and second, the real-world give and take by knowledgeable industry insiders of the practical elements of the value proposition.  At the end of the day the lawyers go home and the industry people are left to actually implement the agreement.  

There are typically many, many examples of people that assist with the first aspect, and far fewer that have the experience and background to help with the second aspect.  The most valuable help is where industry experience can overrule theory and provide the perspective and contingency planning necessary to a workable, bi-lateral agreement in the real-world.  

There is definitely demand for these people, though again, the experience necessary is usually something that must be acquired in the target industry.  Commercial law is a useful broad framework, though the most useful people in deal crafting are seldom lawyers.  

Hence a law degree is very helpful, but IMO, insufficient to the majority of complex deals.