When I began practicing law in 1972 as a partner in the nation’s first private legal clinic (Legal Clinic of Jacoby and Meyers), there was no roadmap to create the type of practice I now maintain. Lawyers were locked into a model based on soup-to-nuts services that led to outcomes resulting from the lawyer’s integrated role as both solicitor in client decision-making and barrister as the client’s vigorous advocate in the courtroom. I have instead evolved as a peacemaker. I rely on mediation strategies, unbundled legal services, principles of collaborative law, and preventive legal wellness focused on client-centered decision making and representation in a variety of consensual dispute resolution options. I never go to court.
My practice is now divided roughly into two equal parts. I serve as a neutral mediator half of the time. The other half is composed of four unbundled roles: lawyer-coach for self-represented parties; client representative during mediations presided over by other neutrals (often with a litigator co-counsel); collaborative lawyer; and as preventive lawyer.
Rather than being a financial disaster, my decision to be a non-court unbundled lawyer has resulted in rapid growth of my practice beyond my most optimistic expectations. My gross receipts increased by over 33 percent during the first year following my decision not to accept litigation engagements. My uncollectable fees went down from 30 percent of gross billings to under two percent.
The financial benefits, although important, pale in comparison to the joy and rejuvenation I feel toward practicing law. I get up in the morning ready to run to the office. I cannot imagine retiring from law practice. Having a totally non-litigation practice with an unbundled approach, I have re-discovered that it is not only possible, but personally and professionally rewarding to be a lawyer. What I do, day after day, is work for peace for my clients and their families. I have become increasingly comfortable with my role as peacemaker. My message is that the combination of peacemaking and unbundling is exactly the work many of us perform already, and the challenge is for us to define our lawyer signatures with this new paradigm and to be transparent with clients about what values underline our practice, the menu of non-court services that we offer, and how this approach differentiates us in the legal marketplace.
Evolution from a Traditional to a Peacemaking Practice
For my first quarter-century of law practice, I led two lives. Although I developed a growing mediation and unbundling practice, I also served as a soup-to-nuts family lawyer, which meant that I continued to represent clients in adversarial court proceedings. Over 15 years ago, I decided to retire from litigation and focus totally on unbundling and peacemaking, and to refuse any further litigation matters. While I was afraid that I would need to sell my house and never take a vacation again, with the support of my wife (the support of family and friends to attempt innovative practice models cannot be overstated), I turned down large retainers and referred all potential court clients to competent litigators in my community. One of the unexpected benefits of turning down litigation and focusing on peacemaking has been the increase of referrals from lawyers and other sources who appreciate my commitment and focus on this form of practice, and who recognize I’m no longer a competitor for litigation work.
Values of My Peacemaking Law Practice
Today, my solo practice in Los Angeles focuses on helping families, both as a neutral mediator and in a variety of unbundled services. The physical layouts of my commercial office within a prestigious Beverly Hills firm and my home office near the UCLA campus where I teach include my personal office/mediation room (with round table and accessible client flat screen TV and flip chart), a conference room that can seat eight, and a client library. I am a California State Bar Certified Family Law Specialist. Clients seek my services due to my substantive expertise, as well as my commitment never to go to court, which differentiates me from most other family lawyers.
The key values of my law practice are:
My Office is a Classroom of Client Education
People are not born as clients, knowing what to say and do when dealing with me, the other party and counsel, and with my staff. It is my responsibility as a lawyer to teach my clients how to be effective in the client role. I have developed a curriculum for client use which includes books, brochures, articles, and sample forms and instructions readily available. I also have prepared accessible client handouts in advance so they are ready when I need them.
These educational resources are housed in a client library in my office that has been in operation for over 25 years. If you do not have an extra room, you could put it in your own office or in the corner of your waiting room. A client library is a collection of consumer-friendly books, DVDs and videos, audiotapes, brochures, and other resources. The client library is the clients’ home in my office, where they can draft documents, make a telephone call to gain additional support and insight, or just have a private cry. I could not practice without a client library. It is a concrete symbol of client empowerment that supports the other values and services of my peacemaking practice.
I Am an Equal Partner With My Clients
As lawyers, we often use expertise to maintain power, authority, and control in the lawyer-client relationship. Since we do have training and experience and clients are generally ingénues in dealing with the legal system and with us, they often surrender to the disempowerment that seems expected of them in return for our advice and help.
In my practice, clients are my equal partners. We decide together what role each of us will play, what services I will offer, how we will communicate, and how decisions will be made. This partnership is very freeing for me, in that clients also take their share of responsibility over decisions and scope of work. Sharing power with clients is consistent with a consumer approach and I find increases both client satisfaction and reinforces my own commitment to family law practice.
Every Day Out of Court is Another Day Out of Court
I firmly believe that while the rule of law and a strong court is important to protect families (especially children), the process of litigation itself too often causes immediate and long-term harm to litigants. Since I never accept engagements that involve adversarial court hearings, I am transparent to my clients that I will be vigilant about exploring non-court solutions, even when they appear to have little chance of success. Generally, litigation will always be more expensive, take longer, and be more harmful to all members of the family than even my most dire predictions. Clients engage me, in part, due to my commitment to attempt to spare them from this Bleak House harmful impact from litigation. If my efforts still result in litigation being unavoidable, I always attempt to refer clients to litigators who will treat them with respect and dignity while still representing their rights in court.
Interest-Based Negotiation to Build Agreements is My Primary Approach
While most people (that includes lawyers and clients) have developed their negotiation approach based on perceived power and leverage, Interest-Based Creative Problem Solving is my negotiation approach. I actually rarely use the word “negotiate.” To many clients, the concept of “negotiation” connotes polar positions taken by each party with back-and-forth offers and responses haggled through threats and intimidation. Instead, I encourage my clients to “build agreements” by sitting down with the other side and sharing the needs and concerns, finding common goals, and exploring options to find solutions that will be acceptable to both parties. This approach also differs from the traditional view that a successful outcome is when “both parties are somewhat equally unhappy.” Rather, my approach is that the litmus test of a successful income is when my client can “live with it,” as a result that best meets the client’s needs given all other factors.
Evaluative and Directive Approaches are Sometimes Acceptable
While I prefer an elicited and facilitative approach to working out problems, I am most willing to employ evaluative and directive interventions at latter stages of negotiation rather than have clients end up in court due to a quest for a pure interest-based approach. I offer clients the choice of trying to employ processes such as a Confidential Mini Evaluation (CME) or submission to a Mediator’s Proposal. A CME brings on an expert to render a confidential verbal opinion in either parenting or financial issues at impasse. In a Mediator’s Proposal, the mediator adopts an evaluative approach and offers a recommended solution. While both processes may not support my clients’ first choice of outcome and create some disempowerment by delegating power to experts, such latter stage approaches may be “good enough” to wrap up a settlement rather than prolonging the conflict through litigation.
Prevention of Conflict is Equal to a Wonderful Settlement (Maybe Even Better)
Rather than limit the focus of my practice to resolving current conflict, my clients are informed that I honor and employ preventive methodology whenever possible. I believe that the avoidance of conflict is far better than the resolution of a raging dispute or legal claim. Toward that end, I employ a number of strategies. The most common of these approaches are advising clients to negotiate a process for future dispute resolution in every agreement or settlement in which I participate, as well as to employ asymptomatic preventive monitoring, such as routine parenting meetings, automatic review of ongoing financial agreements, and legal wellness check-ups.
The Service Menu of My Law Practice
Serving as a neutral mediator remains the bedrock of my practice. Such mediation services are both curative (high-conflict financial and relationship disputes) and preventive (agreements involving premarital, post marital, cohabitation, business, and estate planning issues. As I have written elsewhere on the development of a mediation practice (Forrest S. Mosten, Mediation Career Guide, Wiley, 2001), the balance of this article focuses on cutting-edge limited scope lawyer services that I offer within an exclusive non-court practice.
Lawyer-Coach for Self-Represented Parties
My most frequent unbundled (limited scope) service is for unrepresented clients to come in for an office consultation or schedule a phone conference to obtain advice and strategy. While many of these contacts will be to address a technical issue on the law or to give my practical advice to solve the client’s presenting problem, I also try to use these opportunities to try to lessen overall conflict and recommend a different, more constructive perspective.
Ghostwriter for Letters, Contracts, and Court Documents
Whether I edit my unbundled client’s draft or write a letter or pleading for my client’s signature, I try to focus on the reality that I have a peacemaking opportunity. My editing can tone down any adversarial language or threats, as well as eliminate any personal attacks. In addition, I can draft invitations to the other party to consider consensual dispute resolution options, explore apologies, create mutually beneficial solutions, and practice preventive planning that can help both parties.
Negotiation Planner and Simulation Role Player
Self-represented parties need help in preparing for negotiations that range from a short telephone call with their spouse to a full-blown court Mandatory Settlement Conference. I can be invaluable in helping clients think through what they really need, rather than what they have been demanding (their underlying interests rather than their positions). I will often deliver a short primer on “win-win” strategies, how to frame an offer, how to focus on the problem, how to dig under stated positions to get to interests, brainstorm options, and other negotiation basics. I sometimes give a negotiation book or articles to my clients or suggest that they browse such books in my client library.
In simulated role-play with my client, I try to give my client the opportunity to “sit in the shoes” of the other party (I try to never use the term, “opposing party”)—the first step toward understanding and empathy. Actually, in my collaborative cases, the lawyers call ourselves “Collaborative Partners.”
Shadow Court Coach
In addition to recommending which court pleadings to prepare and help with drafting forms and custom pleadings, here are some other tasks that I perform as court coach:
- Prepare Documents and Visual Exhibits: I help my clients organize and select documents, make sufficient copies for the court and opposing party, and provide a summary of all exhibits to be presented.
- Practice Opening and Closing Statements: I help clients write outlines or actual narratives of their statements. I work with my client to find reasonable approaches that will not further escalate tensions and make it more possible for conflicted relationships to be repaired later.
- Direct and Cross-Examination: In the same way that I used to highlight key points for opening and closing statements when I was a litigator, I prepare my client to be a witness to present direct testimony and get ready for the other side’s (or court’s) examination.
Client Representative During Mediations Presided Over by Other Neutral Mediators
I believe that I can still maintain my peacemaker card by representing individual clients during the mediation process in an unbundled role. Many clients fear trying mediation without the help of a lawyer—yet they often cannot afford nor do not want to hire a lawyer for the entire matter. This limited scope affordable approach seems to straddle this client dilemma.
When I serve as a consulting lawyer in mediation, I must delicately balance the optimum short-term bottom-dollar result against the successful completion of a fair and informed mediated agreement. Rather than engage in “turf struggles” over such issues as where the mediation will take place or who the mediator will be, as a consulting attorney I adopt an approach of “let it go”—actually deferring to the process requests of the other party in order to decrease conflict and make sure the case gets into mediation. Just as important, I try to display respect and support for my client’s choices made during the negotiation that may differ significantly from what a court might order or what I might have tried to negotiate.
I have found that everything I have learned as a family law litigator can be applied to representing clients in mediation. Clients need substantive family law expertise and knowledge of the court process and personnel to help them reach agreements. I will help my client gather and organize facts into visually presentable notebooks and charts as well as provide sources to hire necessary experts. I will also assist in drafting and negotiating. Clients seem to appreciate and be willing to pay for this limited help that enhances their mediation experience.
Collaborative law is an unbundled service because lawyers limit the scope of their services by contracting to withdraw if the matter is litigated. In the collaborative process, a contract, the participation agreement, provides for the inadmissibility of collaborative communication and documents. I stress privacy and confidentiality as major incentives for many clients to turn to collaborative divorce. The participation agreement can be a private agreement among parties and professionals, or a court order. The disqualification clause is a safe “container” for the parties and professionals to work out issues without the imminent looming specter of litigation.
Collaborative practice is also based on mediation principles, in that the parties are empowered to be at the center of the process. Not only are the lawyers less adversarial toward each other, but we join together to ensure that the negotiation belongs to the parties and the lawyers sign on to treat their own clients and the other party in a respectful and peaceful manner for the benefit of all members of the family.
Collaborative law encourages the respectful interdisciplinary use and cooperation of lawyers, mental health professionals, and financial professionals on behalf of the divorcing families. I try to have my clients benefit from the consumer-oriented approach of unbundling by providing a menu of collaborative models so that clients have a choice of how to utilize the collaborative process before they start. For example, rather than have a set team of mental health and financial professionals that must be used in every case, I discuss the benefits and risks of using collaborative law with lawyers alone, and how other professionals can be added into the process now or at a later stage, if needed. In this way, clients are in charge of designing the process that best fits their needs.
Preventive Unbundled Lawyering to Build Positive Relationships
Once I have used my conflict resolution services to settle a dispute, my job as preventive lawyer is just beginning. I try to use my professional experience to predict how my client and other people in his or her life might behave in the future and take concrete preventive steps to make sure that my client has the benefit of my advice before trouble happens in the future.
I use symptomatic preventive planning to translate the experience of recent legal trouble to motivate my client to consider ways to avoid similar problems in the future. To understand preventive lawyering, it is helpful to use the analogy of medical care. If a patient has a lump on her back, the pain symptoms might bring her in to see the doctor. Once there, the physician treats the pain symptoms through medicine or other procedures. This entry model should be contrasted with the asymptomatic yearly medical physical exam. In this latter example, the patient might not have any symptomology, but by seeing the doctor for a routine annual check-up, incipient medical problems may be diagnosed and solved early—preventing later critical care or worse. In the same way, conflict in its many forms brings clients to see lawyers. Once resolved, a preventive lawyer may set up regular visits or other procedures for client-lawyer interaction that can prevent or avoid conflict down the road.
In addition to routine party meetings and assessments discussed earlier, I use an asymptomatic legal/conflict wellness check-up to help clients self-assess the current state of their legal health. This check-up is located on my website, easily accessible to all, and I use it as a conversation opener to explore untreated legal disease and acknowledge legal wellness.
Also, my role as a diagnostician and a provider are unbundled. For example, if I inquire about the adequacy of a client’s life insurance, this conversation might morph into other estate planning needs. As I neither sell life insurance nor provide estate planning legal services, my role is advisory only: if services are needed, I make an appropriate referral. However, by offering this legal wellness unbundled service, I reinforce my commitment and availability to keep clients out of harm’s way: the essence of risk avoidance and peacemaking.
After 42 years of law practice, I marvel that I have developed a blend of needed services and meaningful client relationships. Although this article centers around my life’s work, my experience can be replicated and adapted in your own office. Peacemaking is not just important work for society and the clients we touch: it offers a lawyering signature for your practice that can combine your most important core values and best personal attributes that will help you better serve your clients and provide you with more personal and financial satisfaction over your life.
About the Author
Forrest (Woody) Mosten is in solo private practice as a family lawyer and mediator in Los Angeles who teaches Mediation and Lawyer as Peacemaker at UCLA School of Law. He can be reached at www.mostenmediation.com.
(Image Credit: ShutterStock)