Ep. 3: Ellen Waldorf of eWaldorf Mediation

The ADR Initiative

Ellen Waldorf has been a divorce mediator since 2001. In her practice in Newton, Massachusetts, eWaldorf Mediation, she mediates divorce, aging, and other issues. Ellen has helped train new mediators through Divorce Mediation Training Associates, Massachusetts Continuing Legal Education, and her private supervision practice. Through Clergy Works Institute, Ellen and her co-founder, Martha Hausman, train clergy in mediation and negotiation skills. Ellen is a graduate of Yale University and New York University School of Law.

Listen Here:

Resources Mentioned in This Episode:

• MassLomap (Law Practice Management Consulting)
• Fujitsu ScanSnap
• Clio (practice management)
• Difficult Conversations: How to Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen
• Being Mortal by Atul Gawande
• Harvard Program on Negotiation (blog and newsletter)

Episode Transcript:

Rackham:

Welcome to the ADR Initiative. This is the podcast where you'll hear from successful mediators, arbitrators, collaborative law attorneys, coaches, and other alternative dispute resolution professionals about what they do, how they got here, and valuable lessons they've learned along the way. I'm your host, Rackham Karlsson.

Today I'm talking with Ellen Waldorf. Ellen has been a divorce mediator since 2001. In her practice in Newton, Massachusetts, eWaldorf Mediation, she mediates divorce, aging, and other issues. Ellen has helped train new mediators through Divorce Mediation Training Associates, Massachusetts Continuing Legal Education, and her private supervision practice. Through Clergy Works Institute, Ellen and her co-founder, Martha Hausman, train clergy in mediation and negotiation skills. Ellen is a graduate of Yale University and New York University School of Law. Welcome to the show, Ellen.

Ellen:

Thank you, Rackham. Good to be here.

Rackham:

I'd like to just jump right in here. Obviously that short bio only scratches the surface of what you do, so why don't you dive a little bit deeper and tell us about what you do in your practice today.

Ellen:

My practice is primarily divorce mediation and the corollary services like postnups and prenups. I currently am also expanding my practice to work with families dealing with aging issues, estate planning issues, transitions related to declining health or changing capacities, but I also do a mish-mosh of other kinds of mediation. I recently did an employment mediation and a probate ligation that turned out to be resolved. I used to be a corporate lawyer, and I was a liberal arts major, so for me a variety of mediation is always interesting, and as I think we'll talk a little more, the challenge of mediating is marketing and trying to ... I'm always glad to do those other things, but it's harder to get that kind of business.

Rackham:

Yeah, now in terms of other things, I mentioned in your bio that you do some training and some supervision. Can you talk a little bit more about that?

Ellen:

Sure. The person who brought me into this business, a woman named Diane Neumann who was early on in doing divorce mediation and how you and I met, has been involved with training new mediators, and I've been involved with helping out. I coach role plays, occasionally teaching a little lecture here and there. That's also what I did yesterday at the Mass Continuing Legal Education, working one on one with people. I've also expanded that, as the minimum 40-hour training that we mediators get just scratches the surface, so I have also taken on private supervision of mediators, to be a resource of new mediators as they plunge into their first cases and have questions on the ground, and have sort of been coaching people as well. I enjoy that work very much.

Rackham:

That's really good to hear. One of the things that I try to help people understand is that just because you're a mediator doesn't mean that the only thing you can do professionally is mediate. There are all kinds of ancillary services around mediation, including training, including supervision, coaching. If you wanted to still practice as a lawyer, if you're trained as a lawyer, you can advise people who are going through mediation as their sort of sideline counsel. There are lots of different options for people to earn income from a variety of sources.

Ellen:

And I think as you and I, I think, are very aware, it is very difficult to have a full-time mediation practice that is solely focused on that and is lucrative enough, so some of these ancillary things become important, though I love the mediating. That's really the bulk of what I do, but I think there's great value in also sharing what we do with other people. Because the skills that we have as mediators I think are really helpful in people's everyday lives, which is why I, as you mentioned, am involved in working with training clergy in mediation and negotiation skills because just our human interactions with other people is so ... Mediation has a lot to teach us.

Rackham:

Sure does. Now let's go back a little bit to how you got here then. It sounds like your background… You didn't do mediation right out of the gate. Tell us a bit about how you started out and how you ended up where you are today.

Ellen:

When I was 25 I was a junior person in a small nonprofit, and I realized I was very interested in problem-solving. I went to law school thinking I would jumpstart my career in problem-solving that way. I ended up practicing corporate law for five years after clerking for a judge. During law school I did take an alternative dispute resolution course, which was my favorite course at law school because it really did talk about problem-solving. I also did train while I was clerking to do some community-based mediation for a nonprofit that sadly fell apart after I'd done my training but before I could take my first case.

I actually fell into divorce mediation quite by accident. I met Diane Neumann socially in 2000, and at some point she would keep saying, "I'm looking for part-time mediators." I realized after she had mentioned that a few times that she was asking me if I was interested. I really lucked out in being mentored and trained in this field. I think, as you and I know, it's very difficult to move from learning the skills of a mediator to be able to do it professionally and earn one's living from that way, so I worked for 14 years and then started my own practice a year ago.

During that time I also did some, what I call, foster care mediation. That's not the right term. It's actually permanency mediation that at the time was being funded by the State of Massachusetts to help families and also social services to figure out how to have children who were in the foster care system have some permanency; were they going to be adopted, were they going to return to families. That negotiation and mediation was really just a fantastic experience that has informed a lot of other things that I do now, but the state funding sadly dried up for that one.

Rackham:

I think you've hit on a couple of important things there. One is that even if you were to have a mediation-only practice, people can too readily pigeonhole themselves as one type of mediator, so I only do divorce, for example. In my practice I only do divorce, but that's because I have also my collaborative law practice; but the mediation skills that you develop in one area of practice are transferable to other areas, and there's no reason for somebody to think that they need to only mediate divorce.

Ellen:

I also think that ... I would echo what you're saying, that people truly are ... You learn from one case to the other or one situation. I know from the permanency mediation the managing of multiple parties, even more so than in divorce. I do think you learn a lot, and also because we do that work with other mediators and other professionals and we learn from them. I think everyone we learn from ­– both our clients and other professionals involved are people that we learn from, so I'm a big fan of cross-pollination and learning from others and taking the best of each person's practice or technique and building that into our own and personalizing the way that we do our mediation practice.

Rackham:

Absolutely. You've been talking about mentorship and learning from others. It's so true that the 30-hour mediation training in Massachusetts at least it satisfies the statute for confidentiality as long as you meet other requirements also. So, technically you could go out and practice as a mediator, but there's so much that you don't get from the training. A 30-hour training is just necessarily limited in the amount of information you can get, and there's so much more to learn, everything from how to manage a difficult situation to how to set up your office, how to handle intake. The theoretical stuff all the way down to the nuts and bolts.

Ellen:

I totally agree with you. I liken it to learning how to drive when we've all as teenagers took the course. Then there's no one else in the car when you have to figure out how to get the giant family station wagon out of the narrow parking lot. It's the same kind of thing, that we learn by doing more than even just the initial thing. It's kind of like getting your learner's permit. The good thing, as I always tell the new mediators that I supervise or I coach, that our clients are very forgiving. First of all, most of them have not participated in mediation, and we're in a field where there's a lot of possibility in terms of: this may not have been the best choice of word language or the next step, but there's a lot of forgiveness in the process so not everything turns out to be a huge mistake. It's another great saving grace of mediation that it allows for learners to learn as we go along.

Rackham:

It allows for learning, and of course one of the tenets of mediation is that you can try things on, you can say one thing and then say, well, I'd like to revisit that; hang on, let me back up. That's just as true for the mediator as it is for the clients.

Ellen:

I think that's true. The other thing too is every client is going to deal with approaches that we take differently, and I think that's something about being a mediator. I actually studied ... Well, I didn't study. That would be an overstatement. I was in an improv group in college, and in many ways that is how I think of mediation. We're always responding to the people in the room, so what worked really well for the prior 20 clients may not work well for the next one. It's being agile in our approach.

Rackham:

That's so interesting. Let's get into that a little bit more because my understanding is the basic tenet of improv is, “Yes, and,” which is a non-adversarial approach.

Ellen:

I would say I've learned that. The irony of the group that I was in is the first generation of us all ended up being lawyers essentially. I've learned that more later, but yes, you go with the flow and you go where the other people in the room take you. I do think in mediation that's very helpful, because we're walking a fine line between walking with our clients where they want to go and also helping them achieve the goal that they've also stated and balancing those things. Improv, truly, that going with what people say and working with that really does make a difference.

Rackham:

I want to go back really quickly to that moment where you joined up with Diane. You were a corporate lawyer at the time?

Ellen:

I had left corporate law and was interested in working for for-profit education organizations and was working for a private investor part time at the time that I met Diane and started training as a mediator.

Rackham:

There's really an education theme here. You were interested in education before you went into mediation, and you got involved in educating other people about mediation as well.

Ellen:

Yes, my mother is an educator and my father really is too, so it's not surprising that's an interest.

Rackham:

That makes perfect sense. We've heard about what you do today and a bit of your journey. As you said, the process of building a practice, it is a process and it can take a while to build up a sustainable practice. Along the way we all make mistakes, and some of the best lessons learned come from those mistakes. Can you tell me about one big mistake that you made in the process of building your practice and what you learned from it?

Ellen:

I think one of the things that I should have done was thought more systematically. I mean, created a business plan, created a work plan in terms of developing more of the business side of what we're doing. Actually, that was an important lesson I learned from Diane is that mediation is a business. Many of us go into it because we care about people, as I do very much care about my clients and want them to move on and not need my services again, but to be able to make a living at it requires being a business, requires being entrepreneurial.

You and I both went to law school, so we know that in some of these larger law schools, these more national law schools, we're not being taught how to be business people. We're taught how to execute the law. Creating a business plan, thinking about marketing, thinking about the systems and creating a process and working through that, I think that is something that I do more in bits in pieces now, but it would have been very helpful to be more organized in my thought of developing both the administrative part of my practice, the marketing part of my practice and the — I continue to go to continuing legal ed and learning from my peers and learning from experts about different things I need to learn from. That's something that I've internalized and been doing consistently for the past 15 years. Those other things about learning the logistics of running a practice and being prepared — and also budgeting for those things, we can't do everything at once, and how to think about how to roll that stuff out.

Rackham:

Yeah, all that stuff is so important. It's very easy to go into this field with the best of intentions, but if you don't have at least some basic grounding in how to operate a business, understanding a little bit about cash flow, about budgeting, and marketing is huge of course, then it's going to be hard to bring people in the door and make it a sustaining business. It's very timely. In fact, I just yesterday put out a blog post about defining what it is to be a successful ADR professional. For me it comes down to two components. Number one, doing fulfilling work, which is sort of why people tend to get into it in the first place, but then number two is making a living and finding a way to combine those two to be successful in what we do.

Ellen:

I would add to that, even if people are not looking at making a living, it's having the opportunity to do this work, I think, even if people are doing it in a volunteer capacity. There are lots of us who do it, and finding ways to be the one who is the ADR professional in the room, that's marketing, whether you're doing it to sustain your family or yourself or whether you're doing it because you love this work and you want to do it. I agree totally.

Rackham:

I think one thing that happens is that professionals, especially professionals in service industries where there's a sense of giving to the community, like ADR, mediation, there's this sense that marketing is a bad word, that you're putting yourself up on a billboard. People think of it as a sleazy word. But what marketing really is, is storytelling. It's having a story that you tell about what you do, how you do it, who you do it for, and then finding ways to have that story heard by the right people so that they can then engage with that story. If it resonates with them, then they end up calling you. It's a very organic process. It doesn't have to be sleazy at all.

Ellen:

I think you're absolutely right. Many years ago when I thought I wanted to produce sitcoms, I was being coached by someone in the broadcast industry who thought I should go into sales, and I was appalled because I didn't want to sell Girl Scout cookies at age eight, which is the easiest thing to sell. He was saying the same thing, that really sales is about letting the potential purchaser realize that what you are providing is a service that they need. I think people who are successful are doing that; but if you don't get your name out there, if people don't know you're available to do this work, and particularly in divorce mediation, we are touching people at a very delicate time in their lives, then the vital services that we provide are not things that… they know to reach us. You can be the greatest mediator or ADR professional, but if nobody knows to use you, the world has lost a great resource.

Rackham:

Yeah. You have to be out there, and you have to be out there in way that inspires trust.

Ellen:

Yes, totally. You're absolutely correct. When I speak with potential clients I often let them know I'm very proud of the work that I do, but I also know a lot of what we do is choosing any kind of professional is choosing someone you feel comfortable with. If clients don't feel comfortable with you, they are going to go to the next professional on the list.

Rackham:

So true. Now on the flip side of that, what's one decision that you've made in the course of building your practice that you think worked out really well, one thing that you think was a really good decision?

Ellen:

I am housed in a suite of offices where there are other attorneys, so what I love ... Many of them are family law attorneys, not all of them. I think the ability to have colleagues to talk through issues as they come up for me is incredibly important. For those who don't have that, creating a Rolodex of resources. Because sometimes there are issues that are small or big, and just having people to talk through those challenges, even if it's just for ourselves, having someone listen while we are talking the problem through ourselves is incredibly important. I have always enjoyed having colleagues available to me, and even though my business and practice is separate from everyone else on my hallway, it's as if I am surrounded by colleagues who are helpful. Also, even colleagues who aren't in this field, again this whole cross-pollination thing and learning from what they do and how they handle their issues that come up and their practices is also very helpful. I think there's a lot we can scavenge from other people.

Rackham:

Yeah, it can be really helpful to have somebody nearby or at the touch of a phone who you can talk about things like that with. My landlord recently told me that she has an open space upstairs and she's thinking about bringing another family law attorney in. There could be this initial instinct to be very protective and to say, no, I'm the family law attorney in this building. But the reality is I think it's going to be really nice to have a colleague in the building, somebody to bounce ideas off who's just right there. Really, as hard as it is to get ourselves out there and make sure that people know that we're here, there is a lot of work out there. There's no reason to be so protective or competitive with others in our field.

Ellen:

I also find ... There are a few family mediators too in our suite as well, and I find that we end up all being referral sources to one another. We all have our strengths or the kinds of cases that we'd like, or there are times when I'm not the comfortable choice; I know someone socially, who should I refer them to? I think there are always opportunities to work together. I agree, there's lots of work. The family bar is quite large, and the family mediation world is quite large as well.

Rackham:

It is. I do think perhaps that, this is a bit of an aside, but I do think perhaps that the nature of that is going to change over the years just because the marriage rates are going down. So we'll be seeing less, I think, of divorce mediation and maybe more of out-of-wedlock, cohabitation, and stuff like that.

Ellen:

That wouldn't surprise me. I have come across those cases in my practice. I also think families are ... One of the reasons I'm interested in dealing with families in other times is I think the things that we're doing in helping people problem solve or get through challenging phases in their lives are things that are applicable at other times as well as families, whether they're married or unmarried.

Rackham:

Yeah, so true. You mentioned systems earlier and setting up a business, dealing with the business aspect of the practice. This is a really great time for technology and having virtual tools available to us to help us in our practices. What's one digital or online tool that you think every ADR professional should have in his or her toolbox?

Ellen:

You want me to limit it to one. I'm learning so much. My favorite ADR tool currently, technology tool, for those of us who are lawyers in Massachusetts, it's the Mass LOMAP, Law Office Management Assistance Program, that we as bar members can use just because of the tremendous resources. I love my Fujitsu ScanSnap. I've learned a lot about customer service. I use the Clio law management software to deal with my database system and lots of other resources.

What I've also learned in choosing products, besides looking at reviews, is just the value of customer service. The reason I like my practice software so much is because when I call on the phone for help there's someone who is available to me quite quickly. As I've used different technologies and need customer service, it strikes me even more how amazing it is that someone is there and able to help me. I don't have to wait 20 minutes for someone to pay attention to me, and I'm not on hold.

Rackham:

I've had a similar experience with Clio where their support is just very responsive. The one caveat I would say about Clio is that they're not really set up for mediators in the sense that their system doesn't support the idea of two clients.

Ellen:

Yeah, I agree. I actually was speaking with them because my renewal actually happened today. They are aware of it, but they also have been helpful in figuring out workarounds. I agree with you, the concept of two clients. I think that's true with lots of the things particularly in divorce mediation where a lot of the tools are designed more for family law practitioners who are representing one person. I think that's a thing we're going to have to do as mediators and ADR professionals where we have more than one client is really to push that stuff.

Rackham:

I agree. And you mentioned the ScanSnap. I actually have two ScanSnaps in my office. I have one in the conference room and one in my side office. For anybody who wants a paperless office, I don't think I've ever heard anybody recommend anything other than a ScanSnap.

Ellen:

I have to tell you, rarely do you have a product that I religiously ... When I needed a scanner and the programs that I heard, all — always it was the ScanSnap. Now I understand the fervor with which people take to it. It's such an easy technology and so fast and nimble and unlike any scanner I had ever worked with before.

Rackham:

They're constantly updating it too. I don't know if you saw, but just recently they announced an update that you can now just scan to the cloud with certain models. It doesn't even need to be connected to your laptop, even wirelessly.

Ellen:

Wow, wow. Actually, I was really sad. I need to buy a new laser printer, and I was hoping that there would be some uniform ScanSnap equivalent, and not so good. I'll take recommendations offline.

Rackham:

I think printers are still the bane of everybody's existence.

Ellen:

Sadly, there's always going to be some paper, so there will still be printers.

Rackham:

Going a little bit more low-tech now, what's one book that you think every ADR professional should have, whether it's about business development or theory, or … ?

Ellen:

I actually have three recommendations. I'm sorry, some people do overkill. The first book I would recommend is Difficult Conversations: How to Discuss What Matters Most by Douglas Stone, Bruce Patton, and Sheila Heen. It's meant as a more commercial book than just professionals, but I think it really goes to the heart at what we're doing particularly as mediators, unlike arbitrators, I can't speak for them, but we're really trying to go behind the statements and understand when people act or people say things, what's underlying them and to really urge people to get beneath whatever the initial statement to understand what's underlying it.

The other two things I would recommend: One is for those who are interested, as I am, in helping families talk about issues related to aging, is Atul Gawande's book, Being Mortal, which really though wasn't designed for this has a wonderful set of questions to help us think about how to have these conversations. The last resource is actually through the Program on Negotiation at Harvard. They have a Sunday Minute. It's actually an email newsletter that they send out once a week which is just one simple tip. It's free and I highly recommend. It's just particularly for those of us who do it all the time. It's not necessarily that every week is a new idea, but I think oftentimes we get refocused on other things and it's just a wonderful reminder of a lot of things as well as some new stuff. I highly recommend that as well to folks.

Rackham:

Yeah, and PON has a blog as well that you can subscribe to which is really useful. It comes out every few days, and they have lots of insight into different forms of negotiation, applied to everything from private issues to the international scale.

Ellen:

Yeah, I've enjoyed that as well. I think there's really an abundance of technology and ideas and wealth of information. It's really just… We're all busy folks building our business, marketing, as well as serving our clients, so having valuable resources that will help us most is really great.

Rackham:

Starting to wrap this up a bit then, what's one piece of advice that you would give to anybody who's thinking about starting an ADR practice or growing one that they already have?

Ellen:

I think you and I touched on this idea before, but I think it's really: these are businesses and so it's not enough to be a great practitioner but it is doing the marketing to build business, to attract clients, so that we can actually use all these wonderful skills that we've developed. I think that's the most important thing. Also, the more cases that we do, I think it makes us even better professionals because again we learn from each case. Each case is different; it has its own challenges. One can never forget that this is a business, and marketing is part of becoming a professional, letting people know that this is what I do and that I'm always welcoming new clients. That's probably the bit of advice.

Actually, probably a second corollary to that is oftentimes when I meet people, and I always talk with people who contact me who want to learn about mediation, is I think many people, I know from my law school experience, want to be employees. Most ADR professionals are not employees; they are sole proprietors or in partnership with other people or business owners and are not an employee of X organization, though there are people who are fortunate enough to do it that way too.

Rackham:

Yeah, I think that's true. I think most of us are solos or in very small partnerships. When you're at that level, when you're that small, you really have to be comfortable getting your hands dirty with the business aspects, with the marketing, and in the same way that we learn from cases that we have as mediators, to learn from the marketing process, to say, well, I tried this ad campaign and it didn't work — lesson learned — or people really resonated with this article that I wrote, or this networking event was really very useful for me. Also the same way that we figure out our own style as a mediator, figuring out the marketing style that works for us, that resonates with us and with the clients.

Ellen:

Yeah, I concur.

Rackham:

Great. Ellen, thank you so much for your time. Before we go, what's the best way for people to reach you if they're interested in your services?

Ellen:

If people are interested, they can reach me at ewaldorfmediation.com.

Rackham:

Perfect. Thank you again, Ellen.

Ellen:

Thank you.

Rackham:

That's today's show. Thanks for listening. If you enjoyed the show, please leave a review on iTunes. You can find show notes for this episode, including links to any books and other resources mentioned, at zephyrlaw.com/initiative. I have some more great guests lined up, so be sure to join me next time for another edition of the ADR Initiative.