“Litigation-free” lawyer says mediation-based practice offers many benefits

October 2015 | Around the ABA

In "The Lawyer as Peacemaker: Finding a New Client Base Using Collaborative and Preventive Law Approaches," a webinar sponsored by the ABA Standing Committee on the Delivery of Legal Services, Forrest S. Mosten, mediation trainer and family lawyer, makes the case for more lawyers to embrace mediation.

Mosten says his Los Angeles-based practice since the late 1970s uses a preventive law approach that includes a combination of mediation strategies, unbundled legal services and a practice aimed at collaborative, client-focused advising that allows him to meet the needs of the underserved while also being the basis for a profitable and rewarding practice.

“It’s not the way I learned to practice law when I went to school a long time ago,” Mosten says. “For many of you this is different than the way you learned at your first job and many training courses. But, I will tell you the public likes this kind of practice and is willing to pay for it and it provides a tremendous opportunity for those of us who are training and committed to peacemaking.”

Mosten says the unbundling of services is an effective way to meet client’s needs. He adds, I have been unbundling for my entire 42 years of law practice and have been litigation ‘sober’ for the last 15 years.”

Unbundled legal services is also known as limited scope representation, where the lawyer and client agree that the lawyer will oversee certain aspects of the case, which saves the client money because the client is responsible for some aspects of the case as well.

Mosten says it took seven years before his mediation practice became profitable. He says peacemaking reinforces his personal values, it’s intellectually challenging and he’s able to help people, just as he desired to do in law school. He is also able to increase his market share by differentiating his legal services.  

Mosten says his mediation practice gives him more freedom than when he was a litigator because he’s able to control his own calendar. “Life is more satisfying to me and my family,” Mosten adds.

Some of the services Mosten provides are:

  1. Ghostwriter (improving letters)
  2. Negotiation coach (negotiating directly with spouse and lawyers)
  3. Helping clients get ready for court appearances
  4. Consulting during the collaboration process
  5. Maintaining full malpractice coverage (pre and post malpractice coverage and collaboration agreements are preventive in nature)

During the webinar, Mosten ponders the question, What is the lawyer as a peacemaker? He says, “It is a different mindset than the way we were taught in law school.”

 “Start with your personal style,” Mosten says. “Some people have trouble and conflict ordering breakfast, while others are able to handle the most difficult conflicts in a calmer manner. You need to decide for yourself whether you are suited internally and personally for being a peacemaker or it just wouldn’t fit for you so that staying with litigation is where you want to be.”

According to Mosten, the peacemaking approach is a clear shift from the “old paradigm,” where there were statutes and cases that yielded entitlements and rights. It’s where the lawyer decides everything, and leverage and power in the court generally yields a favorable outcome. “Every dollar you get for your client is one dollar the other client doesn’t have,” Mosten says.

He adds that the more cooperative approach to negotiations started with the book, “Getting to Yes: Negotiating Agreement without Giving In,” by Roger Fisher and William Ury.

“There are some incredibly powerful underpinnings of that book…it helps establish us in a different way of effective negotiation,” Mosten says.

Mosten adds that through peacemaking, lawyers look to other professions such as therapists and financial professionals as equal partners in the collaborations because they are just as qualified to help resolve and work with clients as lawyers.

“The role of the lawyer is that of a problem-solver, counselor, helper and healer,” Mosten says. “Lawyers, all of us, have a very skewed sample of the human race. We see people who have often made poor decisions, have had difficulties in their lives, but the new paradigm – and I believe it fully is based on the premise that people generally follow their agreements – tell the truth and do what they say and back it up.”

Mosten poses the question, “So, I’ll ask the question: are you a peacemaker, or a litigator dressed up in peacemaker clothing?”

He believes peacemakers can offer clients:

  • Peace
  • Resolution
  • Better relationships
  • Empowerment
  • Fairness
  • Forgiveness
  • Hope
  • Prevention

Mosten adds, “I’ve never seen a court authority which requires an apology. ‘I’m sorry’ can go a very long way…Hope – that sense that things can get better – that’s a very different product than the traditional family lawyer.”

The webinar was cosponsored by the Solo, Small Firm and General Practice Division, Law Practice Division, Section of Family Law, Young Lawyers Division, Section of Dispute Resolution and Center for Professional Development.