Viral marketing guru, Seth Godin, talks about two brands of painkiller: those in blue boxes and those yellow boxes. The blue box maker spends a fortune marketing its product. But, when I get a headache I buy ... the yellow box. I always buy the yellow box. In Godin speak, I don’t have a “painkiller problem”. The king’s ransom spent marketing the blue box is wasted trying to solve a problem I don’t have.

Personal Injury lawyers do not have a dispute resolution problem. They have been resolving disputes for years. They get results. They use the yellow box every time - it works for them. What’s in the yellow box? Negotiation, backed up with litigation and trial if necessary.

I think it is probably a waste of time and effort attempting to persuade Personal Injury lawyers to try mediation as a method of dispute resolution. They don’t need it.

Personal Injury lawyers do however have a problem with profitability. They only get paid some months after the case has settled. They carry expensive disbursements. They are taxed on work in progress. It is lock up and it is a real problem, particularly with the current credit difficulties.

Mediation of course can help here. First it provides and excellent opportunity for early settlement. Costs can and should be resolved at the mediation meeting. Hence the life cycle of the claim can be considerably reduced. The delays inherent in costs recovery can also be avoided. Further the work invested in the mediation - namely the pre-mediation conference with the client, preparation of documents and the position statement and attendance at the mediation itself - is all recoverable.

That then is how we should market mediation services - as a tool to increase profitability. We can highlight the positive side effects of mediation: client satisfaction; reduced risk; time released for other cases; opportunity to hone negotiation skills and so on but these are not the factors which will make lawyers buy into the process. These do not resolve perceived problems. We have to offer something which will solve a problem, something that they want. Let’s start selling yellow boxes.

Philip Hesketh is a full time professional mediator and author of The Personal Injury Mediation Service.