India is evolving, taking its rightful place in the world as an economic powerhouse. This evolution has taken years, but now India is taking the steps that it needs to modernize its infrastructure, educate the entire population and build a future for generations to come. One of the areas where India is leading the way is adopting the online conflict management (OCM) area of alternative dispute resolution (ADR). Legal disputes cost the nation and the people of the nation billions of dollars each year because we are relying on the old British and pre-colonial methods of resolving private disputes across India. As a result, India is creating drag on its own economy that is holding it back as it races for development against other developed nations around the world. To evolve India’s economy to the next level, there is a dramatic need to streamline the legal process, ensuring that everyone has access to justice, that domestic and foreign companies receive the same treatment in the eyes of the law and that as much control as possible is given to the private sector to manage private conflicts. Each year billions of dollars in taxpayer money is used to resolve commercial and private disputes across India, why not allow private actors to share this burden rather than the Indian taxpayer and allow the economy to flourish and compete at a global level.
The old model of resolving private conflicts was quite simple. First the private actors would negotiate in private and if that failed then they would move on to the court. This is akin to the parties first saying “let us fix this with a hammer,” and then if that fails “let us hit each other with a hammer and whoever survives is the winner.” This system is barbaric and little better than using swords in combat (in fact many have compared the court systems to ritualized combat). There is a new way, a better way that can allow India to assume its rightful place among the developed economies of the world. This way is the OCM waterfall.
The OCM waterfall is a concept developed to break clients away from the dependency that many find in one form of the conflict management spectrum. The concept is simple. Most ADR professionals that try to enter into the realm of OCM focus specifically on mediation. While mediation is an excellent tool for resolving most disputes and even managing some conflicts, it is not a magic bullet that will cure any problem. Using mediation as if it works in any situation is like using that “hammer” from the negotiation discussion above and trying to use it when you would need a screwdriver, a saw, a wrench or a level. No carpenter would be competent with just one tool in his or her tool bag, thus no ADR professional is really providing their clients a service with only one methodology in their skill set. The OCM waterfall uses the methodologies on the conflict management spectrum, in tandem, to improve the conflict management success rate at a given firm. If a firm can offer multiple conflict management and dispute resolution services, it is more likely that they will be able to meet the needs of their clients and move their company, and their region forward.
A question that we are often faced with is “What is the Conflict Management Spectrum?” Since OCM and ADR professional find that most people do not understand mediation, adding more complexity to the system can be “scary.” However, do you know what every tool at your mechanics shop is? No, but you trust the professional you hire to use the right tool for the right job. This is the level of profesionalism that we need to bring to the fields of OCM and ADR- our clients need to trust us to use the right tool to help them resolve their conflicts. The methodologies that every firm should have in the CMS (conflict management spectrum) are:
1.) Negotiation Services – Any ADR firm should offer negotiation services, where a trained negotiation professional will look over something that is being negotiated and give their honest opinion of the material and what “strategy” should be used to make the negotiation most efficient. The professional negotiator should sit down with the client and go over their best and worst case scenarios, look over the charts to see how matters like this are discussed in the legal realm and then work with the client to create a multi-variate negotiation strategy to move the negotiation forward. For corporate clients a good starting rate is 14,223 INR per hour, for private clients a starting rate should be 7,111 INR per hour.
2.) Negotiation/Mediation “Safe” Space – If you have the office space available you can optimize down time for your facilities by renting the space at an hourly rate to OCM and ADR professionals. While the investment returns on this are good, this also increases your optics to bring clients from less professional solo-practitioners who do not have rental space to your professional full service firm. In addition, this gives you an excellent opportunity to recruit new teammates who can enhance your service offerings. Generally, you should bill the room at whatever the going rate in your area for meeting space is, relative to the quality of space you are providing.
3.) Facilitation Services – Facilitation services are a single party service that many OCM and ADR firms fail to offer. This is leaving money on the table. Business facilitation is the process of helping companies and firms develop new ideas or resolve internal conflicts before they spawn disputes. This process has been serialized in the book “The Seven Swords of Strategic Business Facilitation.” When you have trained, certified facilitators leading facilitation, you have the ability to aid your client in avoiding apparent conflict, which is a vital part of any corporate conflict management strategy. Generally, a facilitator, who is trained and certified, should demand 42,675 INR per hour (4 hour minimum) for corporate clients, smaller clients could demand lower amounts.
4.) Mediation Services – Mediation services are the bread and butter of the OCM/ADR industry. Most people in the legal world now know how effective that mediation is in resolving disputes and lowering the bottom line for clients and law firms. Good mediators charge a range of prices based on where they are and what services they provide. Family law mediators and small claims case mediators may charge as low as 3,556 INR per party per hour. Corporate mediators, especially international corporate mediators, may charge up to 143,242 INR per party per hour! This largely depends on your clients and what you are offering.
5.) Conciliation Services – Conciliation is mediation’s bossy older brother. Conciliation has many of the same elements as mediation, but the “mediator” interjects their opinions into the case more readily. Many retired judges and lawyers fall into this category but call it mediation. As a field that is striving for professionalism, we need to overcome this misnomer and call mediation as mediation and conciliation as conciliation. One of the reasons that consolidation is often called mediation is because conciliators make slightly less. Small claims cases can go as low as 2,000 INR per party per hour and corporate cases generally top off at around 125,000 INR per party Per Hour.
6.) Truth and Reconciliation Services – Truth and Reconciliation services are an optics service that can help your firm make money while providing a community service. TRS, also called gaccacca and Victim/Offender mediation, is not a money maker- bringing in about 7,110 INR per case. However, these are services that establish you as a full service conflict resolution provider in your area. While this is not a big money maker, this is something that can keep your team busy doing government contracts, which in turn could open up government contracts in other areas.
7.) Focus Group Services – Focus group services are when your firm brings in people to listen to a companies pitch about a new product and then your team member interviews the people to see what they think of the product or services. This is often coupled with facilitation as part of a “waterfall” service. Focus groups should be a flat rate of approximately 71,100 INR for a two hour session, of which 1,778 INR is paid to each member of the focus group ( a group gained from temp agencies).
8.) Early Neutral Evaluation Services – ENES is a service where you a party that is getting ready to enter into the legal arena sit down with one of your team members and discuss what they are bringing forward in this case. The duty of the team member is to tell the party (and their attorney) what their honest opinion is about the viability of the case and if you think that other OCM or ADR services would suit them better than going to court. The charge for this services should be similar to whatever the average hourly charge for an attorney is in this area (never give legal advice in these sessions).
9.) Mock Jury Services – Mock juries are similar to ENES, but in this case you get temporary workers to hear the clients side of the case and give their opinions on how they feel that it will fair. If possible in your jurisdiction, if you can have a “dummy” present the oppositions basic arguments directly to the jury the service becomes more useful. Because of the size of the team needed for this the charge should be around 50,000 INR per hour of which the 6/9 person “jury” should be paid approximately 3,000 INR per hour
10.) Trial and Case Evaluation Services – This is a full package of ENE, ENES and Mock Juries. The package should be based on the hourly rate of each session estimated at the estimated time for each element of the package (for instance a 1 hour ENE, followed by a 2 hour ENES and a 4 hour mock Jury would cost approximately 380 INR for the whole package).
11.) Arbitration Services/Private Judge – Arbitration service is when a private judge hears a case and rules on the case based on the contact or relevant case law. Good Arbitrators/private judges provide the clients with a written opinion after the ruling has been made. General cost between 40,000 INR and 80,000 INR per party per hour.
12.) Hybrid Arbitration Service – Hybrid services, such as med-arb, arb-med, fac-arb ect. Should be billed at the hourly rate for each service. When at all possible, a different team member should preform each service rendered. This prevents problems with confidentiality, impartiality and neutrality in the cases.
13.) Appellate Mediation Services – Sometimes you will have people come to you after as case has gone to court while it is going through the appeal process. These mediation services are difficult, but are quite profitable. There are many cases where the parties do not want the common law to change, but want a different decision in the case. In these matters, the mediator could charge as high as 150,000 INR per party per hour! (avg should be around 75,000 INR per hour).
14.) Settlement Management Services – Once you have a strong list of clients, you will want to make sure that your client list is still strong. Offering settlement management services allows you to help clients manage settlement awards. This MUST be done by someone other than the person who ruled on the case, mediated the case or settled the case in any way. In these cases you can set up structured settlements, set up trusts, set up payment plans, set up GAP insurance and so forth. This service can ensure that your clients meet the requirements of the settlement or award and allow your firm to ensure the quality of your service. Generally the consultation is 10,000 INR and the firm receives 2% of all funds managed each year + 1% of interest gained by proper management.
Each of the services on the spectrum is a tool that you can use at your firm to increase the viability of your practice, provide exceptional customer services to your clients and increase your profit margin by a diversified portfolio of services. Taking the time to develop your practice means incorporating a team that can deal with any conflict or dispute with a varied approach to ensure that your customers are satisfied with your performance.
Every firm does not need to have every element of the conflict management spectrum in their “stable.” The goal is to ensure that you can preform as many of the services as possible, but you also want to make sure that your teammates are trained properly in the methodology. Some large tech companies masquerading as OCM companies are trying to tell firms around the world that mediation is the “miracle elixir” that cures all ills. As professionals in the OCM and ADR fields we know that this is no true, mediation cannot solve all problems any more than a hammer can do all home repairs. Firms that have all the tools they need are like a professional contractor that is able to do any job properly at any time. This should be the goal for teams of OCM and ADR professionals around the world that want their firm to be a leading firm in their country.
By – Dr. Chris Smithmyer
Image Source: Wanger And Bloch