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Marketing
Tip:
Ethical Hurdles to Marketing Your Mediation Practice Digitally
The Internet has been a wonderful invention for sharing information, and
it has made it easier for people – including ADR professionals – to find
the resources they need to succeed. However, as more opportunities have
arisen on the Internet, we've also seen people misuse digital resources
for marketing in ways that could be construed as unethical.
Online
Reviews
Regardless of what you try to purchase today, you're sure to find an
online review site that will rate the purveyors, and that's also true for
professional services. Whether it is Yelp, Kudzu, or Angie's List,
there's always an opportunity for clients to express their opinions on the
services they were provided. In ADR this is typically an issue for
providers who handle domestic issues, small claims and other similar
matters, but the Internet does offer an opportunity for everyone to voice
their opinions.
There are two basic ethical issues that arise with online reviews. First
of all, if your practice is listed on any of these sites (if it's on
Angie's List, you'll only know this if you are a paid member), it is
unethical to solicit or compensate people to post a good review for you.
Similarly it's unethical for you to be involved in any way in posting
negative reviews for your competition. In fact, in reading the terms of
service for most of these sites, you'll find both of these actions are
expressly prohibited and, if discovered, will result in your business
being banned.
The second ethical issue that arises with regard to these sites is how, or
in fact if, you respond to the comments that are posted. Clearly a
blistering reply that impugns the intelligence, veracity, or heritage of
the poster is unethical. However, not only is it unethical, it might also
have the exact opposite effect you had desired. Remember, what happens in
mediation is confidential, and anything you say online about a mediation
is subject to that restriction. The best suggestion is to post a reply
that indicates to the poster that you will be happy to discuss their
issues offline and that you'd be happy to bring in a third party to
facilitate the negotiation. (For a more detailed discussion of mediation
confidentiality, please see
Advisory Opinion 8 on the GODR website.)
Social
Media Comments
Although social media are not review sites, the reality is that any open
forum for comment is going to pull in verbiage similar to that on review
sites. Thus the same ethical constraints exist. You can reply with a
request to take the discussion offline, but you cannot disclose or admit
by virtue of engaging in a discussion online what has happened within an
ADR proceeding.
Many ADR
professionals are active in online professional discussion groups on
LinkedIn and find it a good way to increase market awareness of their
practice. Again it is important to note that no information from within a
mediation can be discussed here without violating your ethical
obligations.
Endorsements
About 18 months ago, LinkedIn started offering a service they call
endorsements. To ensure that people would use it they made it simple to
endorse someone, probably too simple. Now when you log into LinkedIn
you'll get a box that lists four of your connections and ask if you
endorse them for "XYZ." If you click the button, you've endorsed them.
Consider for a moment your own endorsements on your LinkedIn account. Do
the people who endorsed you for litigation, mediation, facilitation or any
other service really know how you handle any of those functions? In most
cases they've never even been at your table. They connected with you on
the LinkedIn platform because they knew you socially or recognized your
name. Thus when you tout your LinkedIn endorsements, you're using
uninformed knowledge to reinforce public perception of your skill set. To
most people this behavior is considered unethical, and you should really
consider carefully how you use this information.
Testimonials
If you're lucky, at the end of an engagement you may receive a thank you
note that includes wonderful flowery statements about your skill set.
There's normally other information in the note that if disclosed would
violate the confidentiality of the mediation. However, you'd really like
prospective clients to hear the sender’s compliments. Many of you would
immediately take a snippet or two out of this letter and send it to your
marketing team for inclusion in your printed collateral and on your
website. Did you get the writer’s permission to use his or her words?
Are you going to attribute the quote to the sender? Before you start
taking their words out of context and publicizing them, either with or
without attribution, you need to get the writer’s permission. To do
anything else would be unethical. Posting general testimonials is
acceptable, but testimonials that would identify a specific mediation are
unethical.
Connections ... Disclose or Not?
Consider for a moment that you're booking a mediation, and you realize (if
you're lucky) that you are connected to opposing counsel or one of the
parties on LinkedIn or perhaps they have "liked" your Facebook business
page. Do you have to disclose that "relationship?" What constitutes a
"relationship" in our digital world? As a general rule, we advise our
clients to include a statement in their letters of engagement and
agreements to mediate that refers to the fact that they are generally
connected to many people on the Internet, but that these connections are
as a result of sharing general information and that you have not engaged
in extended discussions (either online or in person) with any of the
parties to this mediation that could reasonably be construed as a
"relationship.” Of course, if you've had extended online discussions, you
need to disclose them, but as a general rule, if you wouldn't recognize
individuals or their names if you met, them then you aren't being
unethical by not disclosing a relationship, because a relationship doesn't
exist.
Sharing
Content
You see a great article in the media and share it by posting a link to it
and maybe a comment about it in your e-newsletter or on your website or a
social media site. Are you being unethical given that it isn't your own
copyrighted material? First of all, the key here is that you're sharing
it, not claiming it as your own work product. Second, you're linking to
it on the original author’s or publisher's website rather than copying the
entire piece and posting it on your own site.
If you know the original authors, it is considered good form to send them
a quick note and ask if they mind your publishing a link to their
content. The chances are that they will be thrilled to get the additional
exposure; I've only been turned down once in all the years we've been
doing this. There is one caveat: if you are publishing for consumption in
Canada (even if only a few of your readers are in Canada), it is critical
to get permission from the copyright holders to share their work product
as this issue is currently being litigated there.
Future
As the Internet evolves in coming years, the ethical challenges that we
all face as we market our practices online will only grow. When
considering whether what you are doing is ethical or not, you should look
first to the guidelines that govern your neutral registration. Clearly
you cannot do anything that would violate those. After that, consider
reversing the situation; would you feel violated if another mediator had
done this to you? This holds true for sharing work product, touting
endorsement or sharing glowing comments. When in doubt, take the safe
route and find an alternative article or endorsement to use to market your
practice.
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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.
Phone: 404-592-3367 E-mail:
mgibson@digitalsmarttools.com |
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