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Lawyer as peacemaker

By Forrest S. Mosten

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 litigator.

Much like Canadian peacemaker Nancy Cameron, who wrote “Collaborative Practice: Deepening the Dialog” in 2004, I felt that I was a rider of two horses:

Forrest Mosten

“I have often thought of this dual role of conflict resolver and courtroom advocate as akin to being asked to ride two horses. … At some point to remain riding it will be necessary to commit to one horse or the other. The difference between the skills I bring as a collaborative practitioner and those I used settling within a litigation template is the difference between riding one horse rather than two.”

Over a decade ago, I decided to refuse any further litigation. I turned down large retainers and referred all potential court clients to competent litigators in my community. My practice is now divided roughly into two equal parts. I serve as a neutral mediator 50 percent of the time, and the other half is composed of four representative roles: client representative during mediations presided by other neutral mediators; collaborative lawyer signing a disqualification agreement if the matter does not settle; unbundled lawyer for self-represented parties; and transaction lawyer forming and improving family and business relationships.

Rather than being a financial disaster, my decision to be a non-court lawyer resulted in the rapid growth of my practice beyond my most optimistic expectations. My gross receipts increased by over 33 percent during my first year of practice and uncollectable fees went down from 30 percent to less than 2 percent.

The financial benefits, though important, pale in comparison to the joy and rejuvenation I feel towards practicing law. Although I have a Medicare card, I get up in the morning ready to run to the office. I cannot imagine retiring from law practice. Remounting the one horse of “non-litigation,” I have rediscovered that it is not only possible, but personally and professionally rewarding to practice law.

In daily law practice, threatening litigation action is a common lawyering tool, even though over 95 percent of court actions eventually settle. This means that 5 percent of the cases drive the system for the other 95 percent of cases. Although family lawyers are generally polite and cordial to each other and to opposing parties, our mindset is generally competitive and adversarial. Ad hominem attacks, accusations and compromising facts included in court affidavits, remain in the public record—sometimes for decades.

In her monumental 2008 book, “The New Lawyer: How Settlement is Transforming the Practice of Law,” Julie Macfarlane identifies the three professional beliefs that are the bedrock of traditional lawyers’ thinking: a rights-based orientation, a confidence that courts will produce the best justice for clients and a mindset that lawyers should be in charge. Macfarlane finds that these beliefs result in a system that is not only inefficient but also creates a disempowerment of clients in favor of their lawyers.

Macfarlane’s findings are consistent with the 1979 seminal law review article that argues that lawyers “bargain in the shadow of the law.” (“Bargaining in the Shadow of the Law,” Robert H. Mnookin & Lewis Kornhausert, 88 Yale L.J. 950) Lawyers who practice within an adversarial paradigm are often myopic in their advice to clients by limiting the definition of the problem to what the “law” proscribes and framing the terms of settlements around what might happen in court.

The professional literature and media are overwhelmed with complaints about the legal system and their lawyers. A peacemaking approach can lead to greater client satisfaction largely because it is consumer-driven and takes into account the long-term needs of our clients, fueled by a positive motivation of trying to help clients heal, improve harmony in their relationships and prevent future conflict in their lives. Peacemaking roles and actions by lawyers can also rightfully remind the public how important the legal profession is to society through our positive contributions to resolving and preventing conflict.

This article is based on and includes excerpts from the author's article, “Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court,” 43 Family Law Quarterly, Fall 2009.

Forrest S. Mosten is a Certified Family Law Specialist in Los Angeles, an adjunct professor at the UCLA School of Law and the author of four books and numerous articles on mediation, unbundled legal services, collaborative practice and building a successful law practice.