Robert A. Creo
Mediator Compensation
Frequently Asked Questions
Mediation is not the practice of law nor is a mediation business model similar to a law firm structure. Mediators work alone and all substantive work is completed solely by the mediator. The fixed fee approach is best-suited to the activities of a mediator. Why a fixed fee approach? Why not bill hourly?
Fixed fee approaches have dual benefits of predictability and consistency. Avoidance of hourly charges eliminates any concern that the mediator is slowing down the process to enhance billing or is otherwise charging excessive time for preparation or follow-up. This frees the mediator to devote whatever time it takes to the face-to-face sessions and telephone communications without concern that one or more of the parties will resist further involvement of the mediator to avoid additional charges from the process. This lets the mediator focus on the goal of settlement without having to worry about anyone punching a time clock. What other benefits are there to a fixed fee?
The fixed fee approach avoids ethical issues such as "double-billing" for time on the cell phone when engaging in travel to a different case. Unlike a law firm, no professional work, such as reading submissions and communication on substantive matters, is delegated to associates or paralegals. The bulk of the time spent on a case is in direct communications with the participants and not in study or review of written materials. Pre-mediation activities, such as familiarization with the case and administrative aspects, scheduling and preparation are all included in the flat fee. What factors determine the fixed fee?
Geography
Cases outside the immediate Pittsburgh area require travel time. In order to be fresh for the mediation session, the mediator often must travel to the area the night before the session, incurring additional travel expenses. Number of Parties
Larger number of parties add complexity to the case, leading to increased mediation time. Individual conferences and phone calls may be necessary. Value
There is a value aspect to the comprehensive fee approach. Most cases are complex liability, business, construction or employment matters. They have dragged on for many years and/or involve serious economic and non-economic issues. The mediator’s participation in the case is limited, it is an event in the litigation. Mediation is a unique intervention designed to bring great benefits to all parties if the case resolves. A busy ADR caseload involves hundreds of cases each year which is dissimilar to a lawyer working on a limited number of cases over many months or years. Although an hourly approach is legitimate for a mediator, it does not often reflect true value provided by the services.
What are the administrative fees and office expenses?
Although administrative tasks, such as scheduling, case administration, and billing are primarily conducted by support staff. The policy is not to have separate administrative fees. All time and effort is encompassed in one fixed fee for each day spent in mediation. Inclusion of office expenses, such as copying and telephone charges frees everyone’s time from tracking these small items and avoids the perception of parties being nickel & dimed on expenses. Surcharges for expenses will not be passed on to the parties. The copy machine is not used as a profit center.
How is travel time and expenses handled?
Since time is not billed by the hour for pre-mediation scheduling and preparation, or for time spent for post-mediation session follow-up, a comprehensive fee for all services, including travel time and all expenses, is billed for each case. By inclusion of all travel expenses into the comprehensive fee, this also avoids tracking receipts and minimizes accounting efforts for everyone. It also permits the mediator to use discretion to travel as cheaply or inexpensively as desired without resentment by the payers that the mediator is engaging in luxury on their tab.
What are scheduling concerns?
Obviously, the mediator only has the ability to be in one place at one time, so the focus of the business model is on days where the mediator is scheduled to conduct actual mediation sessions. A mediator can only schedule one case in any one calendar day and often must travel that same calendar day to another city. This creates two issues in scheduling. One is the ability to get from one place to the other so that the mediator can have the energy to fully focus on the case at hand. The more troublesome reality is that once a case is scheduled for a particular date, that date is gone forever for other matters. Many parties contact mediators having pre-arranged for a specific date without flexibility in scheduling. They have a list of acceptable mediators and are seeking one to accommodate their own schedule or a court deadline. If already scheduled, this means the mediator must pass on this new case since it is rare that a mediator can move an already scheduled case to another date. The mediator has lost that business opportunity, so when a party requests rescheduling, a fee must be charged. Most mediators are not scheduled five days per week, since it is difficult to coordinate so many calendars of multiple participants. It is not uncommon for two or three cases to want the same day, while the day before or after is unused.
What if a party has to postpone or cancel a mediation session?
Unlike lawyers with a waiting stack of work overflowing their offices, there is little billable work that a mediator can do at the office. Most dates mediators are not scheduled, they are doing administrative chores, researching or writing pieces for publication, with these hours not being billable to any case. Occasionally, mediators may also serve as arbitrators and may have some opinion writing that they can do in the office, but generally mediators will consider any unscheduled dates as unproductive downtime.
What can be expected if the case does not settle?
Sometimes a case may not settle at the first mediation session, and will require continuing involvement by the mediator. The mediator includes this time in the comprehensive fee, since the mediator makes these communications from the office when unscheduled, from the cell phone when traveling or outside of business hours. It has happened many times that counsel and the mediator engage in telephone or email communications late into the night or early morning. Rather than keep track of these efforts and bill for the time, non-session follow-up time and effort is included in the flat fee approach.
Further Questions?
For all of these reasons, the following fee schedule is utilized for my ADR services. Please feel free to contact me personally on fees or any matter.
Click on one of the following links for a printable version of Mr. Creo's Fee Schedules.
Comprehensive Mediation Fee Schedule for Medical Malpractice Cases
Comprehensive Mediation Fee Schedule for NON Medical Malpractice Cases
