Be Neutral
A Publication of the Georgia Office of Dispute Resolution


This is one in a series of marketing articles that will explain e-marketing in layman’s terms.  This information is provided to help you modify your online presence to get your practice noticed.

Marketing Tip:
Marketing Your Mediation Practice Ethically      

Mediator ethics is always a hot topic of conversation, and those of you who graduated from law school prior to the 1990s remember when marketing itself was looked down upon.  Clients were supposed to flock to your door merely because you had achieved academic success.  Welcome to the new millennium where mediators and arbitrators have to market themselves in order to be able to compete effectively with the thousands of others who are going after the same business.  Your marketing still needs to comply with your code of ethics, however, and there are several areas that you need to consider carefully.

What Happens in Mediation Stays in Mediation           
Let’s assume for the moment that you were lucky enough to be asked to mediate a high profile case.  After the case settles in mediation, you get a call from the media asking you to confirm information provided to them by one of the parties.  Wow – you’re going to be in the paper… now everyone will know that you’re a great mediator who can bring a difficult, high profile case to a successful conclusion.  But what if the reporter is just fishing and nobody else talked ?  If you’re not careful, even a piece of information as small as confirming that a mediation happened can lead you quickly into a conversation that will lead you to violate mediator confidentiality.

Think it couldn’t happen ?  Consider this timely piece of news that was splashed across the Huffington Post, Washington Post and other journalistic organs in the last 24 hours.  In the wake of the tragic school shootings in Connecticut, the media were desperate for any information about the shooter and his family.  No detail was too small to be overlooked.  Somehow the media found the woman who had mediated the shooter’s parents’ divorce case in 2009 and got her to reveal or confirm for them information over and above that which was available in public court documents.  Suddenly she got the PR she might have thought she wanted, but her possible violation of mediator confidentiality also got her noticed in unwelcome ways.  As she is also a licensed therapist, it’s possible that she has violated HIPAA rules by sharing some of this information, which may present yet another problem for her.  What should she have done ?  A simple “no comment” was the appropriate answer for her.  And depending on the ethics rules you operate under, it may be the best response for you whenever you are approached by the media.

You’re Supposed to SHARE … Not COPY !     
One of the very successful techniques for marketing your practice is to publish an electronic newsletter with links to articles that might be of interest to your target audience.  By keeping the content interesting and valuable to your readers, you ensure that they will continue to read your materials, and that will keep you at the front of their minds for mediation. 

However the key word here is LINK.  You cannot legally or ethically take material that someone else created and claim it as your own work product.  To take an entire article that someone else has written and publish it either in your newsletter or on your website without attributing it to the original author is a copyright violation.  If, on the other hand, you read a great article and contact the author for permission to reprint that’s fine.  Similarly if you write a teaser paragraph and then link the reader to the site where the article was originally published, you’re fine.  You’ve not claimed the article as your own … you’ve just brought it to the attention of the reader by sharing it.  What good does this do for you in marketing your practice ?  You’ve led the prospective client to great material, which ensures that they will continue to read your newsletter or refer others to your website.  You have implicitly associated yourself with the interesting content and in so doing, elevated your status as a mediator based on the quality of the content.

People also share similar content on social media sites, and when they do, the same rules apply, although it isn’t normally as big an issue.  It would be difficult in most social media environments to copy and repost an entire article.  At best you get to post a teaser and a link to the original site for the content.  Thus, in this instance, you’ve not attributed the material to yourself and not created a copyright violation.  To be safe however, you might choose to mention the original author or source in your teaser so that it will be very clear that you did not write the article.

The Ethical Perils of Social Media       
Somehow the digital environment leads some people to say things that they shouldn’t.  Perhaps it is because they aren’t in front of the people they are speaking to or because the material isn’t presented in a hardcopy format.  For many people, social media are just a conversation with thousands of friends, and for those people ethics is often an issue.

Depending on the mediation ethics rules you are subject to and the terms of the mediation contract you have with your parties, an obvious ethical issue could arise if you discuss a mediation or its contents in any way on social media.  You probably shouldn’t walk out of a mediation and Tweet – “Just settled another one - $800K agreed to by both parties” without the express written permission of the parties.  But you might also think twice about posting a comment thanking by name any of the participants.  Even thanking any of the attorneys who were present might give others the information they need to determine which confidential mediation you are talking about.  Heck, by just thanking them online you’re confirming that there was a mediation and you were in attendance !  If this information was intended to remain confidential, congratulations, you’ve just violated your promise to your parties.  Know your confidentiality obligations and rules and have a clear, written understanding with the parties and their attorneys on what you can and can’t discuss.

It’s also very important to draw a firm line on social media between your business life and your personal life.  For those of you who maintain a business page on Facebook or a personal account on Twitter, you have to manage your followers carefully.  In the case of Facebook, you also need to set your privacy settings so that only your friends can see what you posted and even they can’t share it with their friends.  Why, you ask ?

Consider the mediator who was lucky enough to be selected to mediate the NHL dispute about three weeks ago.  Somehow (perhaps the players union or the NHL put out a press release) the name of the mediator showed up in the media.  Immediately fingers on keyboards across North American began searching for this individual.  Sports media types need content for their articles (especially in light of the fact that they don’t have hockey games to write about), and the only articles they were going to be able to write in the beginning were about the mediator and whether or not they thought the mediation would succeed. 

It didn’t take the media long to find the selected mediator and what they found cost him his job within 48 hours.  Apparently this individual had strongly held personal beliefs on issues of race, religion, sexual orientation and more.  He had been spewing a stream of vitriol across his personal social media accounts forever and had not taken care to keep that information private.  While a cute photo of your pet or grandchild might not be enough to cost you an appointment, exposing your personal views to the general public easily can.  Even if the parties had not elected to switch mediators, consider how difficult the mediation would have been when the parties knew what he espoused about these topics ?  If you were gay or African American, based on his openly stated views you probably wouldn’t have wanted him as your mediator, even if, in reality, when he came to the table he shed all his biases for the duration of the process. 

This is a Violation of the Google AdWords Terms of Service  
We’ve talked in the past about the value of marketing your practice using PPC / CPC ads, and I’ve clearly stated that I think the best value is those ads that you can run on LinkedIn or Facebook because the demographic information those sites have access to allow you to narrowly target your audience.  That said, some mediators still like to use Google AdWords, where an ad will pop up based on a keyword that they’ve associated with it. 

You need to understand clearly that it is a violation of Google’s contract with you to use the name of one of your competitors or their firm name as your keyword.  For instance, if someone is looking for Kenneth Feinberg, they aren’t looking for you.  Running an ad for you or your practice that would pop up when the searcher keyed Mr. Feinberg’s name is enough to get Google to cancel your ad and ban you if another user reports you. 

The only instance where this behavior might be remotely ethical is if you are part of a panel and one of your members has retired or passed away.  Then you might choose to use the retired panel member’s name as a keyword to pop a Google ad.  That ad should then take the reader to a back page on your website that has a nice photo of the newly retired individual and copy that says he or she has chosen to enjoy the fruits of many years of labor and is no longer available to mediate cases.  However, there are many other members of your panel who would be happy to assist.

When in Doubt….Just Don’t Do It        
Marketing within the mediator’s ethical framework isn’t difficult.  In most instances if you have to think twice about whether what you are about to do is ethical, then it probably isn’t or skates pretty close to the ethical edge.  Step away from the keyboard and think of another way to market your practice. In this digital world, any ethical violation in your marketing efforts will be discovered sooner rather than later, and then it won’t matter how great a marketer you are because you won’t be a mediator any longer.


Michele Gibson is a Georgia-registered neutral and a certified emerging media consultant.  She is the president of Digital Smart Tool, LLC – an e-marketing firm offering website design, SEO, electronic newsletters, social media coaching, and marketing training seminars.


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