How much are you worth?

March 11, 2021 admin 0 Comments

I’m coming up on my sixth anniversary of my mediation practice. I started in May 2015, after practicing personal injury and insurance defence litigation for just about 25 years at that point – I thought I had a solid grasp on those areas of law, and I also had attended numerous mediations as counsel. I also looked to my experience as a small claims court judge, having conducted hundreds of settlement conferences, motions and trials over the prior decade.

When I opened my mediation practice, I had to decide what I would charge for my services. I felt confident about what I could bring to the table as a mediator, but I also knew that I was the new kid on the block. Charge too much? I thought nobody would hire me, a new mediator, if I modeled my rates on much more senior or experienced mediators. Charge too little? That’s always a dilemma – do people have confidence in a mediator who undervalues their own services?

It’s a question we all need to ask ourselves at one time or another. How much am I worth?

No, I’m not getting into any amateur psychology now. This isn’t about self-worth and self-esteem, and our place in the world. It’s a simple question (or maybe not so simple question) in the lives of most professionals. It’s an economic question. It’s a market economy question.

How much am I worth?

For mediators, we have a benchmark. It happens to be a benchmark set by law and it hasn’t been updated…ever. Ontario Regulation 451/98, enacted in connection with Rule 24.1 of the Rules of Civil Procedure, sets out a Tariff of mediator’s fees for mediations under the mandatory mediation program. The 1998 rates are still the same in 2021, despite the passage of time, and despite inflation. According to the Inflation Calculator on the Bank of Canada website, the $600.00 basic mediation rate set by O.Reg. 451/98 back in 1998, would amount to $912.21 in 2021. That’s a 52% increase over the past 23 years.

But the Regulation and the Tariff have remained frozen in time. The roster rates set by law are the equivalent of still having “My Heart Will Go On” and “Gettin’ Jiggy wit It” on the Billboard charts today. And no music streaming either – you’d still be buying the CD’s. That would be in between watching ER, Friends and Frasier on network television.

You get the picture. So while the rest of the world has marched on, and we now enjoy Netflix and Spotify, roster rates for mediations have stayed the same. $600.00 plus HST for a three-hour session with two parties.

How much am I worth?

I made the decision to use that 1998 benchmark when I set out my fees as a new mediator. Why? It’s not an arbitrary amount – it’s a legally enacted benchmark. It’s economical for the parties. It seemed like a good idea at the time for someone trying to start a business – a professional practice – from scratch. For full-day mediations, I looked to other mediators, and used proportionality in relation to a half-day roster rate, and arrived at $2,000.00 for the day.

Did I do the right thing?

That’s another question we all ask ourselves. We make decisions and we live with the consequences. The right thing? The answer depends on what we set as our standards to measure right and wrong. If the goal is to retire by the age of 60, and doing the “right thing” is to achieve that goal, then roster rates are not the way to go. It’s simple math. If doing the right thing is about making services accessible to a wide range of parties, then perhaps it was the right decision.

How we value ourselves is a reflection of our priorities.

That’s an idea that just popped into my head. How we value ourselves is a reflection of our priorities. Most people would say that how we value ourselves is a reflection of our own self-esteem. If we price ourselves as professionals too low, then it must mean we don’t respect our own self-worth, right? I don’t agree. I think we can make decisions about pricing our services that reflect our respect for others, and not necessarily our respect for ourselves.

Roster rates. Where do they fit into the bigger picture of mediation rates? I can think of one mediator who is a half dozen or so years my junior, has been mediating for roughly the same length of time as me, and who charges over $3,000.00 for a half day – five times the roster rate. Over $4,000.00 for a full day – double my rate. Or another mediator who is also about a half dozen years my junior, also started mediating the same time as me, and who charges nearly $1,500.00 for a half day, and $2,300.00 for a full day.

Or then there was one who charges $9,000.00 for a full day, and $4,500.00 for a half day – their hourly rate is $700.00, which is higher than my half-day rate using the roster Tariff. Same year of call to the Bar as me.

Am I still doing the right thing?

The answer goes back to the original question – how much am I worth?

In business – and yes, mediation is a business – we all have to make decisions about our worth. We have to set prices, because while mediation is often about negotiating, we don’t expect the clients we serve to make offers about what they will pay us. We make decisions about our worth that send messages about ourselves, and I believe that those messages very clearly describe our priorities.

I’m no longer the new kid on the block. I’ve conducted many mediations since starting in 2015, and I also engage in ongoing professional education. I obtained my designation as a Qualified Mediator (Q.Med.) from the ADR Institute of Ontario (ADRIO), because I see a value in being expected to meet certain professional standards, both of training and also of ongoing practice and education. I attend monthly sessions with a wonderful, grassroots group, JADE Mediation Practice Group, where we observe and participate in role-play practice as mediators, where we learn from other mediators in various areas of practice, and where I have also been the guest presenter and coach.

I’m not the new kid any more, but I still charge the same rates. How much am I worth? Am I doing the right thing?

Don’t get me wrong. $9,000.00 for a single day mediation? Or even $3,000.00 for half a day? I’d be lying if I said that the prospect of earning in only 3 hours what it might otherwise take 5 separate half-day mediations to earn is not an attractive idea. But is that what I am worth? Is anybody worth that?

It’s just like the mediations that we do. A Plaintiff believes their case is worth $200,000.00, but a Defendant is only prepared to pay $15,000.00. Is the Plaintiff’s case worth $200,000.00, or is it worth only $15,000.00? And if the Plaintiff compromises, and ends up settling for only $40,000.00, is that a reflection of their own self-worth?

Or is it a reflection of priorities? Is closure and moving on with their life worth more to them than the extra money? Do they recognize that money won’t change the fact that they wake up every day to headaches and pain?

How much am I worth? It’s a question we should ask ourselves on an ongoing basis. It should humble us when we feel over-confident or when our egos begin to swell, and it should empower us at those times when we feel uncertain about whether we have done the right thing, or when we are equally uncertain about what to do tomorrow.

It’s a question we need to ask when mediating – right in the middle of the process, when we stand alone in a hallway, clipboard in hand, waiting for a party in caucus to call us back into a breakout room.

We need to ask that question of ourselves, because it is the same question we expect litigants and their counsel to be asking, often silently or beyond our watch, when we stand in the hallway and they wrestle with making decisions of how to value their own case. How to value themselves.

When we get an offer from a party to convey to the opposing party, they are sending messages about themselves. They are sending messages about their value. They are sending messages about their priorities.

When we practice as mediators and set our rates, we send similar messages. There’s always the danger that we have undervalued ourselves, perhaps to stay competitive. Perhaps to stay grounded.

There’s also an equal danger that when we set our rates too high, we send the message that our rates don’t reflect anything other than ourselves.

If Ontario Regulation 451/98 were to be amended, and the Tariff rate increased to $1,000.00 for a half-day mediation, I would very likely increase my own rates to match that benchmark. Maybe my full day rate would increase too. That might happen some day, regardless of the status of Ontario Regulation 451/98.

But I would have to ask myself a question first. How much am I worth?

Not as a reflection of my own self-worth. Not as a reflection on how busy I am, or how much demand there is for my services. Not as a reflection of how good I think I am as a mediator. Not even as a reflection of what the market will bear.

Rather, that question will be a reflection of the people I serve. The lawyers. The litigants. It has to be that way.

Because when a mediator focuses on anything other than the people whom they serve, and the underlying values they bring to their service, haven’t they lost their worth to those people?

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