MOSTEN LawyerPeacemakerBuilding 2009

Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court
Author(s): FORREST S. MOSTEN

Source: Family Law Quarterly , Fall 2009, Vol. 43, No. 3 (Fall 2009), pp. 489-518
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/25740712
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to
Family Law Quarterly
This content downloaded from

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
All use subject to https://about.jstor.org/terms
Lawyer as Peacemaker: Building a
Successful Law Practice Without Ever
Going to Court
FORREST S. MOSTEN*
I. Introduction
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,1 which meant that I represented clients in
adversarial court proceedings. Much like Canadian peacemaker, Nancy
Cameron, I felt that I was a rider of two horses:
* Forrest "Woody" Mosten has been a mediator in private practice since 1979 in Los
Angeles, is a certified family law specialist and collaborative attorney, is an adjunct professor
of law at UCLA, teaches at Pepperdine, and Hamline Schools of Law and can be reached at
www.mostenmediation.com. I wish to acknowledge my wife, Jody, whose support and ideas are
evident in all my writing; Robin Shofner, UCLA law student; Rebecca Smith, my conflict res
olution assistant, who helps me live out my vision in my law and mediation practice; Nan
Waller Burnett, whose inspirational writing and teaching collaboration have enhanced my
appreciation for spiritual peacemaking; and my UCLA faculty colleagues Russell Korobkin and
Sung Kim, whose ideas and insights at a Sow Ear's seminar served as an incubator for many of
the concepts in this article. I am grateful to Jean Crowe who invited me to write for this issue.
Finally, I would like to express special appreciation to Linda Elrod, long-time editor of the
Family Law Quarterly, who has inspired many authors to give more than their best in building
FLQ to a first-class leading publication of legal scholarship in the field of family law. Almost
two decades ago, Linda gave this fledgling author a break in permitting me to publish my crazy
idea of unbundling legal services in the article, Unbundling of Legal Services and the Family
Lawyer, 28 Fam. L. Q. 421 (1994). The article was a call to combine a consumer-oriented
approach to legal access and dispute resolution in a single article that resulted in an unbundling
movement that neither Linda nor I envisioned.
1. I refer to family law cases and divorce cases interchangeably, meaning matters involv
ing marital dissolution or separation, paternity, guardianship, termination of parental rights,
delinquency, and child-in-need-of-services (CHINS) cases. I recommend that the names of par
ties or mother and father always be used rather than the impersonal adversarial legal terms,
Petitioner/Respondent or Plaintiff/Defendant. See Up to Parents, A Brief Introduction to a
Cooperative System of Family Law (2008), available at http://www.uptoparents.org/files/Up
ToParentsAnd CooperativeFamilyLawSystems.doc.
489

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
490 Family Law Quarterly, Volume 43, Number 3, Fall 2009
I have often thought of this dual role of conflict resolver and courtroom advo
cate as akin to being asked to ride two horses. ... At some point to remain rid
ing 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 set
tling within a litigation template is the difference between riding one horse
rather than two.2
Approximately a decade ago, I decided to focus totally on peacemak

ing and refuse any further litigation. While I was afraid that I would eat
tuna casserole four times a week, with the support of my wife, 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 fifty percent of the time, and the
other half is composed of four representative roles: client representative
during mediations presided over by other neutrals (often with a litigator
co-counsel); collaborative lawyer; unbundled lawyer for self-represented
parties; and transactional lawyer who builds relationship agreements, such
as premarital, postmarital, cohabitation, and handles other matters involv
ing long-range relationships, such as business partnerships, probate dis
putes, and adoption and surrogacy agreements. Rather than resulting in a
financial disaster, my decision to be a noncourt family lawyer resulted in
rapid growth of my practice, beyond my most optimistic expectations. My
gross receipts increased by over thirty-three percent during my first year
of noncourt practice, and uncollectable fees went down from thirty per
cent of gross billables to two percent.
The financial benefits, though important, pale in comparison to the joy
and rejuvenation I feel towards practicing family law. Although I am over
sixty years old, 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-lit
igation," It is not only possible, but personally and professionally reward
ing, to serve as a lawyer. What I do day after day is to work for peace for
my clients and their families, and I have become increasingly comfortable
with my role as peacemaker. I understand that many family lawyers might
find it strange to bundle the roles of peacemaker and family lawyer togeth
er. My message is that peacemaking is exactly the work many of us per
form already.
In daily law practice, threats of going to court or initiating litigation are
integrally woven, even though more than ninety-five percent of court
actions eventually settle. This means that five percent of cases drive the
system for the other ninety-five percent of divorcing families. While most
family lawyers are polite and cordial to each other and to opposing par
2. Nancy Cameron, Collaborative Practice: Deepening the Dialogue 66, 97 (2004).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
Lawyer as Peacemaker 491
ties, our mindset is generally competitive and adversarial.3 Ad hominem

attacks, accusations, and compromising facts included in court affidavits,
remain in the public record?sometimes for decades.
In her monumental book, The New Lawyer4 Julie MacFarlane iden
tifies 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 mind-set 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:
A rights-based model of dispute resolution assumes that lawyers acquire some
form of ownership?not simply stewardship?of their client's conflicts as a
consequence of their professional expertise. . . . Client goals are reframed
where necessary to fit a theory of rights. . . . This assumption of ownership by
lawyers is both practical and emotional. Only certain types of client input,
which are deemed to be relevant to building a strong legal argument, are
sought.5
MacFarlane's findings are consistent with the seminal law review arti
cle that argues that lawyers "bargain in the shadow of the law."6 Lawyers
who practice within an adversarial paradigm are often myopic in their
advice to clients by limiting problem definition to what the "law" pro
scribes and framing the terms of settlements around what might happen in
court.7 The professional literature and media are overwhelmed with nega
tive accounts by family law clients who complain about the legal system
and their lawyers. A peacemaking approach can lead to greater client sat
isfaction largely because it is consumer-driven and takes into account the
long-term needs of the family, fueled by a positive motivation of trying to
help our client heal, improve family harmony, and prevent future strife.8
3. "Akin to concerns about dropping the shield of vented anger, lawyers resist mindfulness
and other emotionally-rooted concepts with a 'knee-jerk tendency to fall back on adversarial
solutions to most, if not all, issues and problems.'" Don Ellinghausen, Jr., Venting or
Vipassana?: Mindfulness Meditation's Potential for Reducing Anger's Role in Mediation, 8
Cardozo J. Conflict Resol. 63, 73 (2006) (quoting Steven Keeva, Transforming
Practices: Finding Joy and Satisfaction in the Legal Life 49 (1999)).
4. Julie MacFarlane, The New Lawyer: How Settlement Is Transforming The
Practice of Law (2008).
5. Id. at 61-62.
6. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88
Yale L.J. 950, 968 (1979).
7. Leonard Riskin & Nancy Welsh, Is That All There Is?: "The Problem" in Court
Oriented Mediation, 15 Geo. Mason L. Rev. 863, 863-932 (2008).
8. The 1995 ABA Comprehensive Legal Needs Study found that consumers actually have
very high satisfaction with their lawyers until their case goes into litigation. See Nobel
Committee's Statement awarding U.S. President Barack Obama the 2009 Nobel Peace Prize:
Dialogue and Negotiations are preferred instruments for resolving even the most difficult

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
II. Evolution from Adversarial Advocacy to Peacemaking
A. What Is a Peacemaker?
A peacemaker is "one who makes peace, especially by reconciling par
ties in conflict."9 Reconciliation is defined as restoring or creating harmo
ny in the family.10 Family lawyer peacemakers come from all back
grounds, have very diverse personalities, and offer services ranging from
litigator to parent educator. Being a peacemaker is not defined by what
role one plays in helping families but by how one provides reconciliation
and harmony in interactions with clients, colleagues, opposing parties,
children, and other members of the family, judges, court staff, witnesses,
experts, and many others. In other words, the core values that the lawyer
brings to work as a family lawyer define whether one is a peacemaker.11
As healers, we can use our compassion to demonstrate a genuine con
cern for everyone we touch in our work. Peacemakers try to suspend judg
ment and try to help clients and others heal without dictating in what form
the healing may be received so that we are not caught up by anxiety, by
being results-obsessed as to whether our efforts bear fruit.12
In her book, Calm in the Face of the Storm, Nan Waller Burnett states:
As peacemakers, we become the maestros of the orchestra as the parties dance
the conflict at our table. Listening is our highway to solutions, our treasure hunt
for answers to the validation of their souls. A practitioner who can tap into the
language, the underlying cries for help of one to another, has the best capabil
ity to assist them on their path out of pain and into understanding. . . ,13
Another approach to peacemaking is the discipline of "mindfulness,"

developed by mediation pioneer, Professor Leonard Riskin.14 Mindfulness
[International] conflicts ... [President Obama's] diplomacy is founded in the concept that
those who are to lead the world must do so on the basis of values and attitudes shaded by
the majority of the world's population.
Nobelprize.org. The Nobel Peace Prize 2009.
9. Merriam Webster Dictionary Online, http://www.merriam-webster.com/dictionary/
peacemakers.
10. Id.
11. See generally Richard L. Abel, Law Books and Books About the Law, 26 Stan. L. Rev.
175, 175-228 (1973) (reviewing Max Rheinstein, Marriage Stability, Divorce, and the
Law (1972)) (utilizing his blended social-science-legal background to discuss the role of per
sonal values and assumptions in one's approach toward divorce).
12. Lois Gold, Mediation and the Culture of Healing, in Bringing Peace into the Room:
How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution
194 (Daniel Bowling & David Hoffman eds., 2003) (quoting H. Prather, Love Is Healing, in
Healers on Healing (R. Carlson & B. Shield eds., 1989)).
13. Nan Waller Burnett, Calm in the Face of the Storm xii (2007). See also F.
Gregory Coffey & Maureen Kessler, The Reflective Counselor: Daily Meditations for
Lawyers (2008); Bringing Peace into the Room, supra note 12.
14. Riskin defines mindfulness as: "Mindfulness . . . means being aware, moment to

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
concentrates on the personal evolution of lawyers to better do our jobs by

acquiring compassion, helps us provide professional distance so that we
do not get caught up in the emotions and reactivity of our clients, and frees
us from habitual mindsets that hinder our creativity in negotiation or in the
courtroom.15
Peacemakers try not to carry grudges against others or against our
selves. We should be open to offering apology to those whom we have
hurt or who feel hurt by us, regardless of "who is right." At the same time,
we must be willing to accept the apology of others, regardless of how
inartfully delivered, or even if we doubt the motives or integrity of the
person offering an apology. Peacemakers also try to be humble and strive
for authentic connectedness with clients, opposing counsel, and others.16
The evolution from adversarial advocacy toward a more client-centered
approach to our work is well underway. Many family law practitioners are
already utilizing peacemaking as a permanent part of their work.
B. Comprehensive Law Movement

In her groundbreaking 2006 article, Professor Susan Daicoff discusses
how a "comprehensive law movement" relates peacemaking as the lens
through which an attorney views clients and their problems.17 Family law
has already begun the evolution away from the traditional adversarial role
towards peacemaking. Daicoff cites three models of the comprehensive
moment, without judgment, of one's bodily sensations, thoughts, emotions, and consciousness.
It is a systematic strategy for paying attention and for investigating one's own mind that one
cultivates through meditation and then deploys in daily life." Leonard L. Riskin, Mindfulness:
Foundational Training for Dispute Resolution, 54 J. Legal Educ. 79, 83 (2004) (citing Jon
Kabat-Zinn, Full Catastrophe Living (1990)). See also Joseph Goldstein, Insight
Meditation: The Practice of Freedom (1993).
15. Leonard L. Riskin, The Contemplative Lawyer: On the Potential Contributions of
Mindfulness Meditation to Law Students, Lawyers, and their Clients, 1 Harv. Negot. L. Rev.
1, 30 (2002). See also Robert H. Mnookin et al., Beyond Winning: Negotiating to Create
Value in Deals and Disputes 56, 203 (2000); Robert S. Adler & Elliot M. Silverstein, When
David Meets Goliath: Dealing with Power Differentials in Negotiation, 5 Harv. Negot. L.
Rev. 1, 59-60 (2000); Clark Freshman et al., Adapting Meditation to Promote Negotiation
Success: A Guide to Varieties and Scientific Support, 1 Harv. Negot. L. Rev. 67, 77 (2002)
(citing Leigh Thompson & D. Hrebec, Lose-Lose Agreements in Interdependent Decision
Making, 120 Psychol. Bull. 396 (1996) ("Mindful negotiation training could include training
people to label positional impulses as they arise rather than acting on them. Existing meta
analyses suggest negotiators fail to identify opportunities for tradeoffs in nearly half of their
negotiations. Training negotiators to note a 'competing impulse' before rejecting a potential
tradeoff may cut this tendency substantially.").
16. Jacqueline Nolan-Haley, Finding Interior Peace in the Ordinary Practice of Law:
Wisdom from the Spiritual Tradition of St. Teresa of Avila, 44 J. Catholic Legal Stud. 29, 39
(2007).
17. Susan Daicoff, Law as a Healing Profession: The "Comprehensive Law Movement," 6
Pepp. Disp. Resol. L.J. 1, 50-51 (2006).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
law movement that are already part of many lawyers' practices:18

Therapeutic Justice (TJ): TJ is the use of social science to study the extent to
which legal practice promotes the psychological or physical well being of the
people it affects, including the effect on lawyers.19 Recognizing the importance
of both substantive and therapeutic concern, TJ urges lawyers to work for both
a desired legal and therapeutic goal for clients.
Holistic Lawyering (HL): HL is based on spiritual growth for both client and
lawyers. Holistic lawyers reflect and work to enhance their own personal val
ues and are clear that professional work should enhance rather than conflict
with those values.20
Restorative Justice (RJ): Although it is often used in the criminal setting, RJ

attempts to restore the relationship between the offender and the community
and to establish harmony through the use of dialogue and negotiation. Future
problem solving is seen as more important than simply establishing blame for
past behavior.21
C. The Law Practice

Departing from the traditional adversarial paradigm and building on the
foundation of the Comprehensive Law Movement, there are many aspects
of peacemaking currently active in family law practice. Peacemaking goals
and strategies can be present within the full-service lawyer-client relation
ship, or within innovative limited-scope service models to expand legal
access.22 Peacemaking strategies can frame interactions with clients,
among parents and children,23 between family lawyers representing differ
ent parties, between lawyers and other professionals, and within the organ
ized family law profession. I will discuss just four common aspects of
peacemaking: negotiation and problem solving, reduction or elimination,
and of threats and blame, commitment to an interdisciplinary approach,
18. Professor Daicoff labels these models "vectors." The additional comprehensive law
vectors of collaborative law, creative problem solving, and preventive law are integral parts of
family law peacemaking services and are discussed later.
19. Daicoff, supra note 17, at 11 (citing TJ founders David Wexler and Bruce Winick, who
quote the definition of TJ as proposed by Christopher Slobogin). See generally Cutting Edge
Law, www.cuttingedgelaw.com (last visited Sept. 28, 2009). This innovative website, created
by J. Kim Wright, offers a wealth of information on TJ and other new lawyer models including
collaborative practice, problem solving strategies and courts, holistic law, integration of law,
politics and spirituality, and lawyer as coach. The site includes video, interviews, blogs, and
other materials.
20. See generally International Alliance of Holistic Lawyers, www.iahl.org (last visited
Sept. 29, 2009).
21. Daicoff, supra note 17, at 33.
22. See Deborah L. Rhode, Access to Justice (2004); Lawyers: A Critical Reader
(Richard L. Abel ed., 1997).
23. See Andrew Schepard, Children, Courts, and Custody: Interdisciplinary Models
for Divorcing Families (2004).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
focusing on the future for comprehensive resolution, and explicit adoption

of peace and harmony as bedrocks of family law practice.
1. Negotiation and Problem Solving

The best family lawyers have already evolved beyond the confines of
the traditional paradigm to incorporate interest-based negotiation and
creative problem-solving approaches to even the most toxic, conflictual,
and complex matters. Referral sources understand that these experienced
lawyers will often use the Daicoff lawyer lens to work out confidential
negotiated settlements that can avoid the public glare of an adversarial
court filing.24
Courts have taken the lead in recommending the use of negotiation and
problem-solving techniques to law parties. The following excerpt is from
a letter that the supervising judge of the Family Department of Los Angeles
sends to every family law party:
... However, going to court is not the only way to resolve disputes. Some other
ways include having attorneys negotiate directly; having a neutral third party
help both sides negotiate a solution (mediation) or using a problem solving
method such as collaborative law. These other ways help people find solutions
that are mutually acceptable. You can speak with your attorney, if you have
one, about these options so the two of you can decide whether any of these are
right for you.25
2. Eliminate or Reduce Threats and Blame

Blame is seen as a "no-win" game?in fact, the seminal best-seller
Getting to Yes is responsible for the now well-known concept "win
win."26 The skills of active listening and acknowledging the emotions of
24. See MacFarlane, supra note 4; Russell Korobkin, Negotiation Theory and
Strategy, An Interdisciplinary Approach (2d ed. 2009); Barry Goldman, The Science of
Settlement: Ideas for Negotiations (2009); Christopher Honeyman, James Coben &
Guiseppe de Paolo, Rethinking Negotiation Teaching (2009). The publicized debacle that
occurred in the Ron and Janet Burkle divorce reinforced the trend to negotiate and problem
solve first, second, and last?keeping the matter out of court for the benefit of everyone in the
family. After winning a battle affirming a premarital agreement that permitted Mr. Burkle to pay
only $40 million to Janet, and after friendly state legislators rammed through a bill modifying
and easing the burden to seal or return financial documents filed in court, the California Court
of Appeals sustained the position of the Los Angeles Times that the First Amendment freedom
of the press trumps (no pun intended) the rights of parties to privacy. This decision and subse
quent release of a flood of private and sensitive financial documents to awaiting blogs have
increased the referrals to mediation and collaborative practitioners. See Burkle v. Burkle, 37
Cal. Rptr. 3d 805 (Ct. App. 2006).
25. This letter was drafted by Hon. Aviva Bobb, former Presiding Judge of the Family Law
Department of the Los Angeles Superior Court. The full text of this letter can obtained through
the Family Law Department, Los Angeles Superior Court, 111 North Hill Street, Los Angeles,
California.
26. Roger Fisher, William Ury & Bruce Patton, Getting to Yes (1991).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
the other party as well as developing and exploring options (brainstorm

ing) are concepts that the best lawyers use, not just in negotiation over set
tlement terms, but with their clients, staff, and even in court in both their
examination of witnesses and arguments to judicial officers. Peacemakers
strive to refrain from the use of threats and blame. Most collaborative
participation agreements consensually bar either the use of court or the
threats of using court.27
3. Interdisciplinary Approach
The field of family law has long recognized the importance of learning
from and incorporating interdisciplinary approaches to better serve our
clients. We have learned from the mental health field about child devel
opment, communication strategies, and how these professionals can treat,
evaluate, testify, and otherwise contribute to the resolution of family law
matters. We learn from and utilize the services of accountants, financial
planners, actuaries, real estate appraisers, and others.
4. Valuing Peace and Empowerment for Lawyers and Clients

Just as the absence of war is not peace, helping people get divorced
without litigation does not make one a peacemaker. Noted family practi
tioner David Hoffman and his co-author, Daniel Bowling, contend that
"When we are feeling at peace with ourselves and the world around us, we
are better able to bring peace into the room."28 Professor Jacqueline
Nolan-Haley notes that lawyer training for self peace is underway and in
the best interests of the profession and the clients we serve.29
5. Markers of a Peacemaker
There are several identifying markers of peacemaker lawyers:30
a. The quality of relationships with clients. Has the lawyer proactively encour
aged rapport and emotional support outside of the technical professional dis
cussion of the legal issues involved?
b. The importance of clients' return to wholeness. Does the lawyer encourage

clients to bring back into balance what has fallen out of balance in their lives
whether it is time for themselves, with their children, or being of service to
their community?
27. See Participation Agreements and Collaborative Guidelines and Principles, http://
groups.yahoo.com/group/CollabLaw/files/Practice; see also Robert Axelrod, The Evolution
of Cooperation (1990); Scott R. Peppett, Mindfulness, the Law and ADR: Can Saints
Negotiate?, 1 Harv. Negot. L. Rev. 83 (2002).
28. See Bringing Peace into the Room, supra note 12, at 14.
29. Nolan-Haley, supra note 16, at 35.
30. The following discussion and questions about healing are adapted from Gold, in
Bringing Peace into the Room, supra note 12.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
c. Helping clients find and listen to their higher intelligence and inner
wisdom. Is the lawyer committed to helping clients bring their best selves
forward, even when they have been compromised by the adrenalin and stress
of conflict? Does the lawyer go beyond asking clients to be reasonable and
logical to help them find their wisdom?
d. Stimulating a healing attitude and hope. Does the lawyer believe that change
is possible and that the lawyer (as well as the client) are working toward a
better future? Does the lawyer have a sense that this hope gives both the
lawyer and client energy?
If these concepts feel familiar, then it is likely that the lawyer is already
incorporating peacemaking values into the practice of law. Perhaps the
lawyer may wish to extend the scope of her own approach to her clients
by offering new peacemaking services as part of her existing practice.
III. Peacemaking Services for Family Law Clients

Utilizing the concepts explored earlier, the balance of the article will
focus on peacemaking services that can immediately be added to a family
law practice. I will discuss the roles of client advisor, litigator, mediator,
mediation party's representative, unbundled coach for pro se parties, col
laborative lawyer, and preventive legal and conflict wellness provider.
A. Client Advisor as Peacemaker

The foundation of every lawyer's role is that of advisor, counselor, and
interviewer. As interviewers, we gather needed information to assist deci
sion making and provide factual support for our clients' positions. As
legal counselors, we help our clients generate and explore options based
on legal and nonlegal factors and then select from among options to make
the best possible decisions. As advisors, we use our knowledge and expe
rience to recommend what steps to take and how best to take them.31
31. For an excellent primer on client-centered lawyering, see David Binder, et al.,
Lawyers as Counselors: A Client Centered Approach (2d ed. 2004). Also see Thomas L.
Shaffer & James R. Elkins, Legal Interviewing and Counseling (1997); Clark D.
Cunningham, Evaluating Effective Lawyer-Client Communication: An International Project
Moving from Research to Reform, 67 Fordham L. Rev. (Special Issue) 1959, 1959-86 (1999);
Effective Lawyer Client Communication: An International Project to Move from Research to
Reform, http://law.gsu.edu/Communication (last modified May 27, 2008). Also useful is the
ICCC Assessment and Feedback Form, the standards for the Louis M. Brown International
Client Counseling Competition, http://www.clientinterviewing.com/icccACCC%20Assessment
%20&%20Feedback%20Form.doc, which cover best practices in client counseling:
Establishing an Effective Professional Relationship
Obtaining Information
Learning the Client's Goals, Expectations and Needs
Legal Analysis and Giving Advice
Developing Reasoned Courses of Action (Options)

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
The first step for a peacemaker is to provide informed consent to the

client about the process option to be used. This should take place as early
in the relationship as possible and include a detailed discussion of the
roles the lawyer can play and choice of processes that can be selected.32
Before writing a demand letter or filing a court action, it is best practice
for the lawyer to explain what other nonlitigation process options are
available. If the lawyer is not qualified or chooses not to offer other
process options that are available in the community, discuss these and
provide resources, referrals, or, at least, recommend that the client find out
more about these other service models.
Most family lawyers are well versed in the positives and negatives of
litigation and negotiated settlement. A peacemaker should proactively
provide a more comprehensive and nuanced explanation of the following
additional options:
1. Client Self-Resolution
If the client decides not to actively pursue a particular position, there is
no need for any further action because the matter is resolved. By taking a
claim off the table due to reflective self-interest (rather than giving in or
taking the route of appeasement), a client may be making the best deci
sion of her life.33
2. Party-Party Resolution
Almost every judge beseeches parties to go out in the hall and settle
Assisting the Client to Make an Informed Choice

Effectively Concluding the Interview
Ethical and Moral Issues
Post Interview Reflection
32. Robert F. Cochran, Jr., John M. A. DiPippa & Martha M. Peters, The Counselor
at-Law: A Collaborative Approach to Client Interviewing and Counseling (2d ed. 2006);
Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral
Responsibility 200 (2d ed. 1994); Robert Cochran, Educating Clients on ADR Alternatives: The
Rules of Professional Conduct Should Require Lawyers to Inform Clients About ADR, L.A.
Law., Oct. 2002, at 52; Robert F. Cochran, Jr., Professional Rules and ADR: Control of
Alternative Dispute Resolution Under the ABA Ethics 2000 Commission Proposal and Other
Professional Responsibility Standards, 28 Fordham Urb. L.J. 895 (2001); J. Lande & F.S.
Mosten, Collaborative Lawyers' Duties to Screen the Appropriateness of Collaborative Law and
Obtain Clients' Informed Consent to Use Collaborative Law, Ohio St. J. on Disp. Resol. (forth
coming 2010), available at http://ssrn.com/abstract= 1373165 (abstract); F.S. Mosten,
Collaborative Law Practice: An Unbundled Approach to Informed Client Decision Making,
2008 J. Disp. Resol. 163.
33. See J. Edelman & M. B. Crain, The Tao of Negotiation: How You Can Prevent,
Resolve, and Transcend Conflict in Work and Everyday Life (1993). Louis M. Brown,
Father of Preventive Law, frequently wrote that more decisions are made in the law offices
worldwide than in all the courts, legislatures, and administrative bodies combined. These deci
sions have precedential impact on the client's life and everyone in his or her family.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
their case themselves rather than turn over their family decisions to a judi
cial stranger. Peacemakers have great deference to the wisdom and capa
bilities of their clients and respect for the other party as well. Before hav
ing a client engage the lawyer's professional services, consider suggest
ing the client invite the other party to sit down for a cup of coffee and try
to work out the problem themselves. The lawyer's support and coaching
of the client can instill confidence to overcome fear and resistance to give
these challenging conversations a try.
3. Lawyer-Lawyer Resolution
In my early days as a lawyer, most of my cases settled when the other
lawyer and I sat down without our clients and worked out the deal. As a
peacemaker, the lawyer can still offer this option. The lawyer can display
empathy and support for the client's desire for conflict avoidance and the
client's informed choice to use the lawyer as a buffer? even if the lawyer
favors having the parties more actively involved.
4. Four-Way Settlement Conference

The lawyer can offer this familiar option with a peacemaker perspec
tive. Being sensitive to the possibilities of future reconciliation and heal
ing, the two lawyers can work together to encourage direct client com
munication and clients' opening statements, reduce hyper-technical legal
language and eliminate lawyer war stories or self-aggrandizing state
ments. The lawyer can make affirmative statements about the commit
ment to having parties in control of their family decisions and willingness
to subordinate legal rights and financial gain in favor of another standard:
"Can I live with the settlement?" While it is entirely proper for the lawyer
to inform the client as to what is being left on the table (and protect against
liability), as a peacemaker, consider supporting a peacemaking approach
to this traditional process choice of a four-way meeting.
5. Collaborative Settlement Conference

This may look very much like a traditional four-way settlement con
ference?but is very different. As a peacemaker, the mission is to explain
the benefits and costs of signing a disqualification clause, explain differ
ent models of collaborative practice, and how the other party might react
in a collaborative settlement compared to other process options. If the
lawyer is not trained in collaborative practice or offers only one model of
collaborative practice, which might not be appropriate in the client's situ
ation, part of the peacemaker approach is to share information about other
lawyers in the community who might offer other collaborative models for
the client. In essence, the lawyer is "unbundling" the roles of advisor and

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
service provider to ensure the client's fully informed and empowered

decision making.34
6. Mediation
As there are many models of mediation and different mediators with a
range of abilities and perspectives, the lawyer's peacemaker responsibili
ty is to explain this menu of mediation possibilities in the courts,
in private, and in nonprofit sectors. If the lawyer invests in mediation
training, it will enhance the information and support the lawyer can pro
vide for clients to consider mediation early and seriously.
B. Litigator as Peacemaker
While many clients come to us seeking justice that they believe only a
ruling from a judge can provide, every experienced lawyer knows how
expensive, time consuming, emotionally challenging, and uncertain in
result that litigation can be. Despite these downsides, the public court sys
tem has the ability to offer enforceable protection, public accountability,
and some measure of finality if one or both are unable to agree consensu
ally and require a third-party stranger to make a decision for them.
Peacemaking and litigation are not necessarily incompatible. Litigators
who embrace a peacemaking approach can make a positive difference in
the lives of clients they serve. For example, Indiana family attorney,
Charlie Asher, has proposed an overall cooperative system for family law
litigation that includes the least divisive procedures, maximizing cooper
ation with counsel and unrepresented parties at all times (especially before
initial filings), focusing on children's needs, and adopting a problem-solv
ing family orientation for all players in the family law system.35
On an individual case basis, the lawyer can set a peacemaking tone in
34. Forrest S. Mosten, Informed Consent and Other Best Practices to Ensure Competence,
in Collaborative Divorce Handbook 127-50 (2009).
35. Asher's proposal, for which he received the ABA Lawyer as Problem Solver Award,
and other proposed reforms that may follow Asher's pioneering work, supplement and do not
necessarily supplant, the excellent voluntary codes of behavior on the local, state, and national
level, including Bounds of Advocacy (particularly, Number 7 Professional Cooperation and the
Administration of Justice) promulgated by the American Academy of Matrimonial Lawyers at
http://www.aaml.org/go/library/publications/bounds-of-advocacy/7-professional-cooperation
and-the-administration-of-justice. See Asher's entire proposed Up to Parents Model Rule for a
Cooperative System of Family Law, at http://www.uptoparents.org/files/UTPModel Rule.doc.
Asher also provides instructions on how to use his cutting edge website for parent educators,
child-custody evaluators, collaborative attorneys, and collaborative divorce coaches and child
specialists. I believe this website, along with www.familywizard.com, is so important that I
include links to these sites on my own website and recommend that both mediation
parties and individual collaborative clients visit these sites (together, if possible) at the earliest
possible stage.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
any of the following ways:

1. Readily agree (when not ultimately prejudicial to your client) to requests by
the other party to stipulate to facts, admissibility of evidence, and other
requests to speed up proceedings and provide the court with the most com
plete information;
2. Readily agree to requests for personal accommodations from the other party
and counsel for continuances based on illness, children's needs, work
responsibility, and other reasons;
3. Refuse to take advantage of mistakes committed by opposing parties and

counsel;
4. Refrain from ad hominem and negative personal or sarcastic comments;
5. Set a peacemaking tone at settlement meetings and court hearings through

moments of silence, readings, a discussion of the beauty of the day, or even
prayer.36
6. Extend personally to create a positive peacemaking climate with the other
party and counsel. Polite cordiality is a start?however, it is no substitute for
a warm greeting (really making eye contact) and trying to meet personal
needs. For example, the lawyer can go out of the way to arrange for gener
ous food and drink and inquire about special dietary restrictions. If both
lawyers need to travel out of town for a hearing or deposition, proactively
offer to travel together. Warmly and genuinely inquire about how the other
lawyer and party are doing at work, with their children, and about their lives
outside of the case. Such conversations create rapport, reduce mistrust, and
contribute to possible settlement or repair of the family after litigation.
7. Listen?truly listen?and show that the lawyer is listening to the concerns

and questions of the other side. Before debating or dismissing such concerns,
take a moment to acknowledge an understanding and appreciation that they
are willing to share such concerns. Underscore positive qualities of requests,
even if the client is not prepared to meet it. Use connecting words ("and")
rather than disconnecting negative language ("but"). Illustration:
It is my understanding that you feel strongly that you should receive full
36. The underpinnings of peacemaking are part of the religious traditions of Christianity,
Judaism, and Islam. See Daniel Philpott, After Atrocity: What Religious Traditions Have to
Offer Political Reconciliation Today, Address at 2009 Forrest S. Mosten Conflict Resolution
Peace Studies Lectureship (May 20, 2009), available at http://www.religiousstudies.ucr.
edu/Mosten/annual_lecture/2009/MostenLectureMay20-2009.pdf. Brian Don Levy, a collabo
rative lawyer who still litigates when necessary, reports that prior to court hearings he routine
ly asks opposing counsel if he or she has a "relationship with God." If he receives a positive
response, he and the other attorney pray for the welfare of both parties, that they will be
strengthened and focused so that they can soon take control of their own decision making, and
that they and their children can eventually be healed. The following biblical quotation is a
permanent part of Levy's e-mail signature: "Blessed are the peacemakers for they will be called
sons of God." Matthew 5:9. In a more secular vein, the lawyer can initiate similar peacemaking
discussions utilizing selected spiritual readings poetry or joint meditation, or just sitting togeth
er. See Paul R. Fleischman, Why I Sit (1986), http://www.events.dhamma.org/presskit/pauls
writings/Why-I-Sit-en.pdf.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
reimbursement for the $20,000 you spent on the ski vacation that you
took to Switzerland with the children. I appreciate that you have pro
vided all of the receipts, and I know that George also wants to share his
concerns about this expenditure given your family's tight finances and
our agreement to have prior approval of child related expenditures."
8. If the lawyer has a personal conflict with another lawyer, extend an invita
tion to lunch or coffee to try to reconcile.
9. At all times, advocate for family healing and demonstrate that such an
approach is congruent with the interests of the client.
Courts can provide a public, accountable, and enforceable option for

clients that can increase opportunities for client empowerment and finali
ty in appropriate situations. Even if a peacemaker favors nonadversarial
options or refuses to litigate when other options have been discussed and
attempted, a caring and respectful litigator can represent his or her clients
in the court process, consistent with peacemaking principles.
C. Mediator as Peacemaker
When I first started my private mediation practice in 1979, those of us
in the peacemaking community dreamed of the day when lawyers, courts,
and the legal profession would endorse and use mediation as a primary
form of dispute resolution.37 This 1970s dream of mediation's acceptance
by the legal profession is a reality in the twenty-first century. Led by the
organized bar (particularly the American Bar Association), we now have
a Uniform Mediation Act, certification of mediators in some states, a body
of mediation law, academic and training courses in mediation, prestigious
awards, and a plethora of lawyer mediation organizations. The Dispute
Resolution Section of the American Bar Association is the world's largest
mediation provider organization and one of the biggest sections in the
ABA with over 20,000 members. Its annual conference has become the
best attended and most prestigious conference in the field.
Today, mediation has become an integral part of family law practice. It
is no longer a choice between mediation or lawyers?it is mediation and
lawyers. Most mediation processes involve lawyers who are actually in
the room or acting as consulting lawyers behind the scenes.
Mediation comes in all shapes and sizes. Some jurisdictions compel
parties and counsel to participate in mediation. Such court-mandated medi
ation may take place in the courthouse on the day of a scheduled adversar
37. In the Family Court of Australia, Alternative Dispute Resolution (ADR) is litigation,
arbitration, or other "top-down" processes." Primary Dispute Resolution (PDR) includes medi
ation, collaborative practice, negotiation, and other "bottom-up" consensual processes. In the
United States, ADR has often been renamed "Appropriate Dispute Resolution," Consensual
Dispute Resolution (CDR), or merely Dispute Resolution (DR) or Conflict Resolution (CR).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
ial court hearing. "Mediation" is used to describe evaluation and directive

neutral interventions. The same word is used to describe "transformative
mediation,"38 which takes place voluntarily in a private setting in which all
proposals come from the parties themselves (lawyers are rarely involved)
and the mediator facilitates solely to promote empowerment and recogni
tion of the other party's needs and concerns. The true interests of the par
ties are not limited to their "legal rights." Winning is not part of the con
versation, and success is not defined as reaching an agreement. Mediation
has many models, styles, and approaches.
The growth and acceptance of mediation is not without perils. With
so many forms of mediation, parties and lawyers might not know what
mediation is. Two definitions of mediation put this issue in clear relief. The
following definition of mediation was promulgated in 1995 through the
combined efforts of the American Bar Association, Association for Conflict
Resolution, and American Arbitration Association:
Mediation is a process in which an impartial third party facilitates communica
tion and negotiation and promotes voluntary decision making by the parties to
the dispute. Mediation serves various purposes, including providing the oppor
tunity for parties to define and clarify issues, understand different perspectives,
identify interests, explore and assess possible solutions, and reach mutually sat
isfactory agreements, when desired.39
In contrast, another definition of mediation states:
Mediation is the search for the invisible bridge that connects every living being
with every other. It is a poem made of intention and vulnerability. It is a
re weaving of souls. It is an opening through which we are able to glimpse the
other, naked and divine. It is a synchronization of heartbeats. It is a fierce life
and death struggle of each person with himself and herself. It is a design for
creating a different future. It is a gentle, responsive exploration of the space
between us. It is a breach in the myth of what we know to be true, leading to
transformation and transcendence.40
While "mediation" is the subject of both definitions, these approaches

are complementary but contain very little overlap. The question is whether
one wishes to add mediation services as an "add-on" to a current practice
or wishes to restructure the practice and career with a peacemaking per
38. See Robert Bush & Joseph Folger, The Promise of Mediation (2005).
Transformative mediators are more interested in achieving a meaningful two-way conversation
and "human growth." The true interests of the parties are not limited to their "legal rights."
Winning is not part of the conversation, and success is not defined as reaching an agreement.
See www.transformativemediation.org, sponsored by the Institute for the Study of Conflict
Transformation, Inc., at Hofstra Law School.
39. Model Standards of Conduct for Mediators (1995).
40. Kenneth Cloke, What Are the Personal Qualities of a Mediator?, in Bringing Peace
into the Room, supra note 12.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
spective. The difference is whether one remains a traditional family lawyer

in mediator clothing or offers mediation services that builds on one's fam
ily law experience and skills with the added knowledge and perspective of
a peacemaker.41
As a conflict resolution trainer who favors a tool-box approach, I
believe that the most successful mediators plan their strategies and process
es, depending on the issues, parties, counsel, time-pressures, and other fac
tors. No one size fits all. If one wishes to offer competent neutral media
tion services, one should take at least two to four basic family mediation
trainings,42 attend conflict resolution conferences both in and out43 of the
"lawyer" world, undertake an ambitious reading program,44 and join a local
mediation study group.45 The journey into mediation as either a neutral or
client representative requires one to take on a new universe46 of books and
articles, professional standards, cases and statutes, and practice guides.47
41. It is about being a mediator, rather than simply doing certain prescribed steps dictated
by a particular mediation school or theory. "In addition to what a mediator does, there is the
matter of what a mediator is. Spirit emanates from being, just as articulately as it does from
doing. More specifically, it is the mediator's being, as experiences by the parties, that sends the
message." Bringing Peace into the Room, supra note 12, at 16.
42. See www.mediate.com for a current overview and calendar of trainings, organizational
meetings, and trends in the field. This site also builds and manages starter websites for conflict
resolution professionals and offers marketing materials such as a monthly newsletter that can be
sent to clients and referral sources from your office.
43. As one example of a nonlawyer approach to mediation, see The Handbook of
Conflict Resolution: Theory and Practice (M. Deutsch & E.C. Marcus eds., 2d ed. 2006).
This book contains twenty-six chapters from a broad range of experts on subjects such as trust,
power, communication, persuasion, problem solving, judgment biases, anger and retaliation,
creativity, reflection, aggression, and culture and conflict. All are subjects well beyond legal
training. With the leadership of Christopher Honeyman and David Matz, approximately a
decade ago, over fifty mediation scholars, trainers, and practitioners gathered at the University
of Massachusetts over a weekend to discuss this book. See also Handbook of Mediation:
Bridging Theory, Research, and Practice (Margaret Hermann ed. 2006).
44. Take a quick visit to www.amazon.com to see the number and breadth of books on
mediation and conflict resolution.
45. Interdisciplinary study groups share cases, invite experts, discuss books, and otherwise
provide the members focus, resources, and support to build their mediation practices. See F.S.
Mosten, Mediation Career Guide 77-78, 186-87 (2001).
46. "The best mediators I know are continually training. . . They are learners both inside
and outside the mediation room... With the understanding that your mediation training is never
over, you should say 'yes' to new courses, books and opportunities to improve your compe
tence." Forrest S. Mosten, The Path of the Peacemaker: A Mediator's Approach to Marketing,
ACResolution Magazine, Spr. 2006, at 8-9.
47. Dr. Donald Saposnek describes mediation as a union of art and science, informed by an
intuitive understanding of human relationships and their "frictional" element. Developing such
an effective mediation style, according to Saposnek, requires not only grounding in the princi
ples of mediation but also a holistic, systemic approach to the components of conflict. The per
sonal qualities that enable a mediator to practice in this way involve an ability to be comfort
able with conflict, calm while managing the intensity of the parties' commitments to their sep
arate views, and flexible and open to the parties' perspectives. Perhaps most importantly, effec

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
Even though mediation has been so important in changing the land

scape of family law, it is not the height of peacemaking. If a mediation is
needed, the parties have not yet achieved peace?a dispute is still in exis
tence. The concept "mediation" often connotes a formal legal process that
clients want to avoid. A lawyer may wish to utilize mediation skills to call
oneself a neutral facilitator or a convener of a meeting just to sit down
with the parties and have a "conversation." In defining peacemaking,
some scholars are proposing doing away with the word "mediator" alto
gether or redefining it to suggest a mediative capacity through a number
of fluid roles.48 Lawyers and other professionals may call on the mediator
who has a large inventory of knowledge and skills, not only to mediate
terms of settlement, but also to manage discovery, motions, and other
pretrial conflicts,49 be an intermediary with experts, conduct a confiden
tial mini-evaluation50 or serve as a third-party lawyer neutral within a col
laborative law matter,51 perform an early neutral evaluation, or just meet
with parties and their professionals to chat about the case.52
Many lawyers build thriving practices as neutrals while still taking on
litigation matters. This is the easiest route if one already has mediation
training. The most financially successful mediators are those who have
developed and maintain expertise in both law and the craft of mediation
because dual credentials tend to reassure the parties and increase their
trust and confidence as well as enhance rapport between mediator and the
parties.53
tive mediation requires the mediator to establish a trusting relationship with each party and
remain compassionate and sympathetic throughout the process. See Bringing Peace into the
Room, supra note 12, at 10.
48. See John Paul Lederach, Building Mediative Capacity in Deep-Rooted Conflict, 26
Fletcher F. World Aff. 91 (Spr. 2002).
49. See F.S. Mosten, Cases from Hell: Mediated Case Management, in Complete Guide
to Mediation 173 (1997).
50. See F.S. Mosten, Confidential Mini-Evaluation, 30 Fam. Ct. Rev. 373 (1992). A sam
ple stipulation for a Confidential Mini-Evaluation is on the book website for F.S. Mosten,
Collaborative Practice Handbook (2009), http://www.mostenmediation.com/books/collab
orativedivorce.html.
51. See F.S. Mosten, How Collaborative Divorce Works with Mediation and Unbundled
Legal Services, in Collaborative Practice Handbook (2009).
52. "In truth, parties in conflict can be more open to feelings, more vulnerable and honest
about what is not working, more capable of listening and creative in coming up with solutions
than their mediators. We become less successful in resolving conflicts when we form too high
an opinion of our own contribution in bringing them about." Kenneth Cloke, Qualities of a
Mediator, supra note 40, at 53-54.
53. Stephen Goldberg & Margaret Shaw, The Secrets of Successful (and Unsuccessful)
Mediators Continued: Studies Two and Three, 23 Negot. J. 393 (2007) (reporting that the two
attributes most commonly found in successful mediators are the ability to establish rapport with
the parties and to earn the parties trust). Stephen B. Goldberg, Margaret L. Shaw & Jeanne M.
Brett, What Difference Does a Robe Make? Comparing Mediators with and without Prior
Judicial Experience 25 Negot. J. 277 (2009).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
D. Unbundled Lawyer as Peacemaker

Unbundling, also known as limited scope representation, discrete task
representation, and legal coaching, is not a new concept. It is currently
used in law offices worldwide.54 Essentially, unbundling is an agreement
between the client and lawyer to limit the scope of services that the lawyer
renders. Many of the consumer benefits of unbundling come from media
tion to encourage the empowerment of the parties. A working definition
of unbundling is that the client is in charge of selecting one or several dis
crete lawyering tasks contained within the full-service package.
There are numerous replicable models of lawyers successfully
unbundling their services to increase legal access. Unbundling can be
either vertical55 or horizontal. Vertical unbundling is breaking up the
lawyer role into a number of limited services, each service or a combina
tion available for sale. Horizontal unbundling limits the lawyer's involve
ment to a single issue (spousal support) or a combination of issues (child
custody and property, excluding retirement rights). In horizontal
unbundling, the lawyer may be engaged for the issue of spousal support
only, and the client will either act on his or her own behalf or engage
another representative for all other issues. In the same way, a lawyer
might represent a client in a single, temporary child-custody hearing, but
the client will represent herself at subsequent hearings on child custody or
at trial on all issues. Lawyer and client are in charge of determining the
scope of representation and in unbundling friendly jurisdictions, the court
and other party are required to honor that lawyer-client decision.
54. See the chart developed by the National Center for State Courts (http://www.ncsc.org/
Web%20Document%20Library/IR_BrowseByTopic.aspx) describing the unbundling laws and
rules state by state. See also sample court forms for limited representation developed by the
California Judicial Council, http://calbar.ca.gov/Calbar/pdfs/accessjustice/riskmanagement
Packet2004-01-12.pdf.
55. Some examples of vertical unbundling include:
Advice: If a client wants advice only, it can be purchased at an initial consultation or throughout the case
as determined by the client with input from the lawyer. The lawyer and client collaborate in helping the
client decide if and when further consultations may be needed.
Research: If a client wants legal research, a personal or telephonic unbundled service provides this legal
information. Research may take as little as fifteen minutes or as much as ten hours. The client is in charge
of determining the scope of the job and who will do the work: the lawyer, client, or a negotiated collab
orative effort between the two.
Drafting: Lawyers ghostwrite letters and court pleadings for the client to transmit or just review and com
ment on what the client has prepared.
Negotiation: Lawyers teach clients how to negotiate with opposing parties, court clerks, and govern
mental agencies.
Court Appearances: If a client desires, an unbundled lawyer can convert to full representation for court
appearances, hearings, and mediation. Lawyer and client agree on discrete tasks.
See F.S. Mosten, Unbundling Legal Services (2000); F.S. Mosten, Unbundling Legal
Services to Help Divorcing Families, in Innovations in Family Law Practice (Kelly Browe
Olson & Nancy Ver Steegh eds., 2008).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
Limitation of legal services based on informed consent and a written

agreement is permitted in every state and in many western countries.56
Every initial consultation with a lawyer, therapist, or accountant that goes
no further is an unbundled service. The client either chooses or cannot
afford the "full service package" offered by the lawyer. "Second opin
ions" are classic unbundled services: the lawyer limits his or her scope to
review and comment on the work of another lawyer, but does no more.
Every time a lawyer writes a single letter, instead of three possible letters,
or makes a single phone call for a client, the services are limited and
unbundled. Collaborative law and limited scope representation of clients
in mediation are also unbundled services.
If a lawyer provides unbundled services, the lawyer will be able to offer
experience and skills to otherwise unrepresented parties at a cost that they
can better afford. The lawyer can be paid at the customary hourly rate, have
fewer unpaid receivables, perform work that is within his competence, and
help people who need it. Another benefit is that once unbundled, clients try
doing some of the work on their own and experience the challenges and
frustrations of doing so (including dealing with opposing counsel). These
clients may convert to full-service status work and be more willing to pay
the requested retainer and additional fees incurred during litigation.
In short, unbundling prepares clients to be more informed and more appre
ciative consumers.
In addition to providing more legal access for the unrepresented and
underserved public and more potential income for lawyers, unbundling
offers opportunity for peacemaking and constructive help to repair families
in distress. One of the biggest deficiencies of self-representation is that pro
se parties are deprived of the referrals to mental health professionals and
other community resources that lawyers know about and make available to
our clients.57 The lawyer who offers unbundled services provides a peace
making perspective and encouragement in a number of ways.
1. All Purpose Unbundled Counselor, Coach, and Advisor

The most frequent unbundled service is for 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 get the lawyer's views on improving the client's position,
the lawyer can use these opportunities to try to lessen overall conflict and
56. See Model Rules of Prof'l Conduct R. 1.2(c). "A lawyer may limit the scope of the
representation if the limitation is reasonable under the circumstances and the client gives
informed consent."
57. See Connie Beck, Bruce Sales & Richard K. Hahn, Self-Representation in
Divorce Cases (1993).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
recommend a different, more constructive perspective.

By asking questions, inquiring about possible professional referrals and
looking for ways to diffuse the conflict, the lawyer may be bringing peace
to the situation. Here are some possible peacemaking interventions:
Ask how the client, her children, and her spouse are doing. If appropriate, dis
cuss a possible referral to a family or individual therapist or other resource;
If the parties are at loggerheads, ask the client how important the issue at hand
is and whether it is possible to "move-on" without expending more time or
expense in trying to persuade or threaten the other side;
Ask the client what he could do differently to improve the situation. At appro
priate times, raise the possibility of having your client sincerely apologize for
something to change the dynamics of the relationship.
2. Ghostwriter for Letters, Contracts, and Court Documents

Whether the lawyer edits the unbundled client's draft or writes a docu
ment for the client's signature, the lawyer has a peacemaking opportuni
ty. Clearly, the lawyer can tone down any adversarial language or threats
as well as eliminate any personal attacks. In addition, the lawyer can draft
invitations to consensual dispute resolution options, explore apologies,
create mutually beneficial solutions, and initiate preventive planning that
can help both parties. In states that require ghostwriters to disclose their
identities on court pleadings to be relieved from making a full appear
ance,58 the lawyer's peacemaking draftings will not only effectively
support the client's positions, but also leave judicial officers and other
attorneys with a positive and resolution-focused impression of the ghost
writer.59
3. Negotiation Planner and Simulation Role Player

Self-represented parties need help in preparing for negotiations that
range from a short telephone call to a full-blown court-mandated settle
ment conference. The lawyer can be invaluable in helping the clients think
through wants and needs rather than focusing on demands (interests rather
than positions). The lawyer can help modify (lower) expectations by help
ing the parties think about "what they can live with," rather than their
58. See generally Maryland Legal Assistance Network, Informal National Survey of Ethical
Opinions Related to "Discrete Task Lawyering," http://www.unbundledlaw.org/thinking/ethic
survey.htm (last modified Oct. 2003) (see ghostwriting rules for Florida, Colorado, and other
states).
59. Once filed with the court or submitted into evidence, pleadings and exhibits (often let
ters between the parties) are part of the public record. Children of the parties, business associ
ates, the IRS, and the press have open access to these court files. A peacemaking approach to
drafting such documents may have a long-term effect on the personal and financial future of
both parties.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
legal entitlements or their moral/psychological justifications for retribu

tion, reparations, or other payback for past wrongs committed. The lawyer
can give a short primer on "win-win" strategies, how to frame an offer,
how to focus on the problem, how to read between the lines of stated posi
tions to get to interests,60 brainstorm options, and other negotiation basics.
The lawyer might even give clients a copy of Getting to Yes or another
negotiation books or articles. If the lawyer role-plays with the client, the
client has the opportunity to "sit in the shoes" of a spouse?the first step
toward understanding and empathy.61
4. Shadow Court Coach

While some states have court rules and approved forms for limited
scope court appearances,62 the basic unbundled role is for the party to
represent himself or herself in the courtroom with the unbundled lawyer
helping in litigation preparation.63 In addition to recommending which
court pleadings to prepare and helping with drafting, some other tasks that
the lawyer can perform as court coach are:
a. Prepare documents and visual exhibits: The lawyer can help the client
organize and select documents, make sufficient copies for the court and
opposing party, and provide a summary of all exhibits to be presented.
b. Practice opening and closing statements: The lawyer can help clients write
outlines or actual narratives of their statements. The lawyer can help a client
find reasonable approaches that will mitigate tensions and make it more pos
sible for the family relationship to be repaired later.
c. Direct and cross-examination: In the same way that the lawyer highlights
key points for opening and closing statements, the lawyer can prepare the
client as a witness to present direct testimony and get ready for the other
side's (or court's) cross-examination.
60. "Interests motivate people; they are the silent movers behind the hubbub of positions.
Your position is something you have decided on. Your interests are what caused you to so
decide." Fisher, et al., Getting to Yes, supra note 20, at 41.
61. Consider using a video recorder so the client can replay this simulation at home.
Another option is for the client to bring a friend or family member to provide honest feedback
and suggestions to improve negotiation performance.
62. See generally Maryland Legal Assistance Network, supra note 58.
63. Some unbundled lawyers accompany their clients to court and sit in the public gallery.
It has been suggested that like witness counsel, coaches can sit at counsel table?most judicial
officers and legal-access scholars believe that this crosses the line. As long as the court coach
does not interfere with the court proceedings (hand signals or signs clearly are not permitted),
the client can pay for the lawyer to come to court to critique the client's advocacy performance
and consult during breaks. As a mediator and collaborative attorney, I have recommended that
clients take a courthouse field trip and I have sometimes been invited along.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
E. Other Peacemaking Roles for Lawyers

1. Representative of Parties in Mediation
The lawyer may enjoy the satisfactions of a lawyer-client relationship
and not have the interest or commitment to train and serve as an impartial
neutral. The lawyer can still maintain the peacemaker card by represent
ing individual clients during the mediation process, in either a full-service
or unbundled role.
The role of a consulting lawyer in mediation is different from the tra
ditional role of counsel in family law. Unlike the adversarial duties of the
court advocate or negotiating counsel, to maximize financial results and
attempt not to leave any "money on the table,"64 the consulting lawyer in
mediation must delicately balance the optimum short-term bottom dollar
result against successful completion of a fair and informed mediated
agreement. Rather than engaging in "turf struggles" over such issues as
where the mediation will take place or who the mediator will be, as a con
sulting attorney, the lawyer may adopt an approach of "let it go"?actual
ly deferring to the process requests of the other party to decrease conflict
and make sure the case gets into mediation. Just as importantly, the lawyer
can display respect and support for the client's choices made during the
negotiation that may differ significantly from what a court might order or
what the lawyer might have tried to negotiate.
Everything the family lawyer knows can be applied to representing
clients in mediation. Clients need the family-law substantive expertise and
knowledge of the court process and personnel to help them discover their
BATMAs.65 The lawyer's ability to gather and organize facts, as well as
64. See Michael Becker, Representing Parties in Private Divorce Mediation, Trial Mag.,
Aug. 2001, 59-60:
Clients now seek the services of lawyers who understand and support mediation, and who
possess the skills and knowledge to work effectively as consulting counsel. . . . Lawyers
often play a proactive role in mediation. Stated broadly, the consulting counsel offers infor
mation, assistance, and advice to ensure that a party makes good decisions, based on a full
understanding of the law and possible outcomes. Consulting counsel usually works with his
or her client in between mediation meetings, and is most often not present at the actual medi
ation sessions .... There are times when the presence of one or both attorneys is useful,
especially at the end of the mediation, when agreements are being finalized or specific
options evaluated. Id.
65. BATMA stands for the Best Alternative to a Mediated Agreement. In short, if the client
cannot cut a deal in mediation that he or she can live with, the lawyer needs to explain what the
client faces in result and transaction costs if the matter is litigated and what is the best result
possible. BATMA should be contrasted with WATNA (Worst Alternative to a Mediated
Agreement) or MLATNA (Most Likely Alternative to a Mediated Agreement). By comparing
the BATMA, WATMA, and MLATMA, clients can understand the range of possibilities if the
mediation does not result in an agreement. See Fisher, et al., Getting to Yes, supra note 26,
from which BATMA is adapted from the author's BATNA (Best Alternative to a Negotiated
Agreement).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
provide sources for expert information, is invaluable to informed decision

making. And, experience in drafting and negotiating make the lawyer an
important resource for the client and for the mediator.66
66. See Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client

Representation, 10 Harv. Negot. L. Rev. 103 (2005); John W. Cooley, Mediation Advocacy
(2d ed. 2002). Some tips for effective independent representation in mediation include:
Client should be thoroughly advised as to the appropriateness of commencing and/or ter
minating mediation and the effects of mediation on the client;
Before commencement of mediation, make an independent assessment of the client's
general suitability for mediation and whether emergency needs require immediate judi
cial relief;
Establish a working agreement with opposing counsel and the mediator that will balance
protection for your client with the flexibility needed for successful mediation;
Determine the level of client contact during the mediation process. Some clients require
attorney consultation before and after each session and others need only an occasional
phone chat. If follow-up letters are sent to counsel, determine whether your client
requires your specific approval and/or reaction to each letter or just a "flagging" of cru
cial areas. In any event, the letters should provide a roadmap of the progress of the medi
ation and give counsel updates as to the issues under review and the trade-offs being
made;
Monitor the informational "discovery" to ascertain whether your client is receiving ade
quate information to make informed decisions;
Educate your client on negotiation strategy and the interrelationship between mediation
and the court process;
Help client raise agenda items that will meet immediate needs and make the mediation
work more effectively;
If the mediation is headed for "trouble," determine corrective measures. Some options
include instructing client to raise the problem before or during the next mediation ses
sion; directly contacting opposing counsel and/or mediator; attending mediation session
yourself; writing corrective letter to mediator; or pulling plug immediately by recom
mending suspension or termination of mediation;
Determine how experts are to be chosen, paid, instructed, and review any letter of
instruction for scope of assignment and how reports are to be used. Review experts'
reports in a careful and timely fashion;
Respond promptly to any problem that arises. If you are opposed to particular client
action in mediation, "duke it out" with client and/or opposing counsel and/or mediator
long before final MSA is submitted for review. Occasionally, a party will engage in pro
tracted mediation and learn about counsel's reluctance or disapproval after mediator
fees have been spent and a deal has been cut with spouse;
Advise clients about the necessity of temporary court orders and monitor the drafting
and filing thereof;
Review MSA, stipulated orders and/or judgment before client signature and court
approval. Negotiate problem provisions with opposing party and a mediator, if appro
priate;
Be available for personal support of client throughout mediation process;
Perform or refer to associate counsel such ancillary legal work as wills, estate planning,
vesting, agreement with third persons, QDROs;
Monitor enforcement of executory provisions of agreement;
After mediation is concluded, maintain contact with client for changes in circumstances
or changes in the law that affect client's situations.
Forrest S. Mosten, Representing Clients in Private Mediation, 8 Fam. L. News & Rev. 23, 25
(1987).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
2. Collaborative Lawyer as Peacemaker
Collaborative law is an unbundled service because lawyers limit the
scope of their services by contracting to bilaterally withdraw if the matter
is litigated. It is also based on mediation principles in that the parties are
empowered to be at the center of the process. Not only are lawyers less
adversarial toward each other, but also they join together to ensure that the
negotiation belongs to the parties and that the lawyers sign on to treat their
own clients and the other spouse in a respectful and peaceful manner for
the benefit of all members of the family.
Collaborative lawyers sign on to the following peacemaking principles:
Respect and dignity for the other party and other professionals,
Direct and open communication with the other party and professionals,
Voluntary and full disclosure of relevant information and documents neces

sary to make agreements,
Commitment to the healing of the family,
Use of interest-based negotiation to try to meet the needs of both parties.
Collaborative law encourages the respectful use and cooperation of

lawyers, mental health professionals, and financial professionals on behalf
of the divorcing families. The world's largest collaborative organization,
the International Academy of Collaborative Professionals, is based on an
interdisciplinary approach and its mission is defined as collaborative prac
tice that encompasses many models.67
Collaborative law puts a buffer between the parties and the courthouse
by taking away the customary lawyer tools of threats and court action.
There can be discussion about statutes, cases, and possible outcomes in
court without the parties or lawyers making overt threats of filing a court
action. Collaborative lawyers believe that the absence of such pressure
permits parties to focus on their own needs and those of their children to
build agreements.
In the collaborative process, a contract, the participation agreement,
provides for the inadmissibility of collaborative communication and doc
67. The principles of collaborative practice on the website of the International Academy of
Collaborative Professionals state:
While Collaborative lawyers are always a part of collaboration, some models provide child special
ists, financial specialists and divorce coaches as part of the clients' divorce team. In these models the
clients have the option of starting their divorce with the professional with whom they feel most com
fortable and with whom they have initial contact. The clients then choose the other professionals they
need. The clients benefit throughout collaboration from the assistance and support of all of their cho
sen professionals.
IACP, Principles of Collaborative Law, Jan. 24, 2005, available at http://www.collaborative
practice.com/lib/Ethics/Principles%20of%20Collaborative%20Practice.pdf.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
uments. Privacy and confidentiality are major incentives for many fami
lies 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 way for the parties and professionals to
work out issues without the imminent looming specter of litigation. A
lawyer who wants to become a collaborative lawyer, should take a basic
collaborative training, study the growing literature,68 and join a local
interdisciplinary collaborative practice group.
3. Preventive Lawyer
It is curious that we have been slow to recognize that the same logic that leads
us to conclude that ADR is better than litigation, leads to a much more com
pelling ultimate conclusion: Dispute avoidance is far superior to both. . . . We
should place greater emphasis on counseling skills and recognize that our learn
ing and practice experiences are far too skewed by an assumption that lawyer
ing is essentially a process of "unscrambling the eggs." We should foster the
notion that the highest and best use of legal services is in providing guidance to
clients before rather than after the fact. . . 69
Peacemaking conflict-resolution services to settle a dispute do not

finish the job. Lawyers have the training and skills to make predictions
about how a court might behave. Lawyers can also use professional expe
rience to predict how the client and other family members might behave
in the future and take concrete preventive steps to make sure that the client
has the benefit of advice before future trouble happens.70
68. Leading titles include Sherrie R. Abney, Avoiding Litigation (2006); Janet P.
Brumley, Divorce without Disaster: Collaborative Law in Texas (Lori Fairchild ed.,
2004); Cameron, Collaborative Practice: supra note 2; Sheila Gutterman,
Collaborative Law: A New Model for Dispute Resolution (2004); Barbara Landau,
lorne wolfson & N.K. landau, family mediation and collaborative practice
Handbook, (4th ed. 2005); John Lande, Special Symposium Issue: Developing Better Lawyers
and Lawyering Practices, 2008 J. Disp. Resol. 1; MacFarlane, supra note 4; Mosten,
Collaborative Divorce Handbook, supra note 34; Ron Ousky & Stuart Webb, The
Collaborative Way to Divorce: The Revolutionary Method that Results in Less
Stress, Lower Costs, and Happier Kids?Without Going to Court (2006); Richard W.
Shields, Judith P. Ryan & Victoria L. Smith, Collaborative Family Law: Another Way
to Resolve Family Disputes (2003); Katherine Stoner, Divorce Without Court: A Guide
to Mediation & Collaborative Divorce (2006); Pauline H. Tesler & Peggy Thompson,
Collaborative Divorce: The Revolutionary New Way to Restructure Your Family,
Resolve Legal Issues and Move on with Your Life (2006); Pauline H. Tesler,
Collaborative Law: Achieving Effective Resolution in Divorce without Litigation (2d
ed. 2008). For a discussion of leading books, see Lande & Mosten, Collaborative Lawyers'
Duties to Screen, supra note 32.
69. Thomas H. Gonser & Forrest S. Mosten, The Case for a National Legal Health
Strategy, Preventive L. Rep. 132 (Spr. 1993).
70. See Louis M. Brown & Edward Dauer, Planning by Lawyers: Materials on a
NonAdversarial Legal Process 309 (1978); see also Bruce J. Winick, David B. Wexler &

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
Symptomatic preventive planning is using the experience of recent

legal trouble to motivate the client to consider ways to avoid similar prob
lems in the future. One method of preventing future conflict is to build in
future asymptomatic procedures following the resolution of a legal dis
pute when no dispute is currently raging.71
a. Future dispute resolution clauses

The drafting of a judgment following settlement or trial is an opportu
nity to encourage positive problem solving before potential conflict erupts
into a legal dispute. The lawyer should try to put as many barriers between
the parties and the courthouse in a comprehensive, mandatory future dis
pute resolution protocol as part of any settlement agreement.72 Some ele
ments of this protocol may include encouraging personal meetings of the
parties in neutral locations; informal written explanations of concerns;
and required proposals for resolution and consultation with therapists,
clergy, and other third parties before any more formal process is initiated.
If the matter is still unresolved, the parties may agree to mediation or col
laborative law sessions. If such processes do not resolve the issues, the
parties can seek the confidential and nonadmissible input from parenting
and financial experts within the mediation or collaborative law processes
prior to going to the next step of a more formal and admissible report.73 If
the matter is still unresolved and the parties need a court decision, the pro
tocol can provide for the parties to meet in mediation to limit issues and
provide for the least contentious and expensive litigation process. Finally,
after a litigated result is obtained, the protocol can mandate a return to
mediation to clarify any judicial orders and permit the parties the oppor
tunity to heal.
Edward A. Dauer, Special Theme: Therapeutic Jurisprudence and Preventive Law:

Transforming Legal Practice and Education, 5 Psychol. Pub. Pol'y & L. 795, 798-99 (1999).
71. Louis M. Brown and other preventive scholars rely on the more developed medical
model as an analogy for legal prevention. A few of his articles include Legal Autopsy, 39 J. Am.
Judicature Soc'y 47 (1955); Family Lawyer and Preventive Law, 35 Cal. St. B.J. 43 (1960);
Preventive Medicine and Preventive Law: An Essay That Belongs to My Heart, 11 J.L. Med. &
Ethics 220 (1983) (describing how a routine asymptomatic physical exam uncovered a prob
lem that was repaired to increase Professor Brown's life span).
72. "Effective prevention, however, goes beyond the language written into the contract.
Prevention is better conceived in the broader contexts of real-life systems in which people inter
act with one another and with the objects and spaces of the physical world." Thomas D. Barton,
The Modes and Tenses of Legal Problem Solving, and What to Do About Them in Legal
Education, 43 Cal. W. L. Rev. 389, 398 (2007); Thomas D. Barton, Preventive Law and
Problem Solving: Lawyering for the Future (2009).
73. See generally F.S. Mosten, How Collaborative Divorce Works, supra note 51. See
generally F.S. Mosten, Multi-Step Dispute Resolution Protocol, in Collaborative Divorce
Handbook, app. B No. 9, (2009), available at http://www.wiley.comAVileyCDAAVileyTitle/
productCd-0470395192,descCd-DOWNLOAD.html.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
b. Monitoring settlements to maximize compliance

Just as most people signal before making left-hand turns, most people
keep their agreements. Because of the current and future costs to clients
who either breach their agreements or have to react to the other side's
breach, the lawyer's mission is to help both parties comply with settle
ment terms before any dispute about compliance arises.
One method to increase compliance is built in scheduled meetings and
assessments. Many parents agree to a weekly or monthly meeting by
phone or in person. Sometimes the process is calibrated to start with reg
ular telephone meetings, and in-person meetings only if necessary. These
meetings occur when there may be no problem or issue. Actually, this is
the best situation. Rather than always negotiating problems, mediation
and clients can use asymptomatic regular meetings to share information
and anticipate potential problems with the children.74
Regularly scheduled future assessments and reevaluation of current
agreements can be helpful to permit parties to meet semiannually or annu
ally to discuss parenting and/or support agreements. In addition to giving
parties the comfort of knowing that agreements can be modified, if they
are planning for a regularly scheduled meeting in two or three months
time, instead of confronting each other, they might save up concerns for
the meeting, which can involve just the parties, with a neutral mediator,
or take place in a collaborative representative setting.
Another asymptomatic approach is to calendar executory settlement pro
visions or life-cycle events for planned future discussion. This is based on
the preventive law maxim that a "file never closes." Thus, when clients
leave the lawyer's office, they should know when lawyer and client will
next meet and how the meeting will be arranged and by whom. The lawyer
can anticipate the need for meetings when the family residence is scheduled
to be sold, when children need to change schools, or when spousal support
will end so that child support and other issues may need refinement.
c. Preventive client education

People are not born knowing what to say and do. It is the lawyer's
responsibility to teach clients how to be effective in that role, particularly
as effective collaborative clients. To accomplish this, many lawyers have
books, brochures, articles, and sample forms and instructions readily
available to clients. Lawyers can prepare handouts in advance so they are
ready when needed.
74. Tools to aid this preventive agenda include websites such as www.ourfamilywizard.
com, which provides calendars for upcoming activities, contact information for medical and
educational providers, which provide information with less risk of escalation between parties
than phone calls or in-person discussion.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
A client library in a small room in the office or in a corner of the wait

ing room can help educate clients. A client library is a collection of con
sumer-friendly books, DVDs and videos, audiotapes, brochures, and other
resources. It is a place for clients to draft documents, make a private tele
phone call, or just have a private cry. I could not practice collaborative
divorce without a client library. It can be a concrete symbol of client
empowerment that supports your values and skills in your practice. Finally,
the lawyer might initiate the process of an assymptomatic legal/conflict
wellness check-up to help clients assess the current state of their legal
health.75
IV. The Future of Peacemaking in Family Law

Peacemaking is already inculcated into the values and services offered
by many lawyers. Mediation is universally institutionalized as part of the
court system. Statutes, court rules, and programs for limited scope repre
sentation and collaborative law are becoming part of the landscape.
Inspired by the thinking of scholars such as Julie MacFarlane, Leonard
Riskin, Susan Daicoff, Thomas Barton and others, family lawyers now
have a rich conceptual foundation for a peacemaking approach. These
efforts have been captured in a proposal for peacemaking reform programs
such as Family Law Education Reform Project (FLER)76 and the Center for
Creative Problem Solving (California Western School of Law).77
Practitioners such as David Hoffman, Pauline Tesler, and Charles Asher
have provided the field with hands on skill development and tools to inte
grate peacemaking into our daily lives. Interdisciplinary organizations,
such as Association of Family and Conciliation Courts (AFCC), Academy
of Collaborative Professionals (IACP), Resolution UK,78 International
Alliance of Holistic Lawyers, and the ABA Section on Dispute Resolution
(Lawyer as Problem Solver Program), offer journals and conferences to
teach peacemaking and inspire the field. Perhaps most importantly, coura
75. See F.S. Mosten, Personal Legal Wellness Checklist, http://www.mostenmediation.

com/legal/wellness.html.
76. Mary O'Connell & J. Herbie Difonzo, The Family Law Education Reform Project Final
Report, 44 Fam. Ct. Rev. 524 (2006), available at http://www.afccnet.org/pdfs/Family%20
Law%20Education%20Reform%20Project%20Final%20Report.pdf.
77. California Western School of Law, Center for Creative Problem Solving, http://www.
cwsl.edu/main/default.asp?nav=creative_problem_solving.asp&body=creative_problem_solv
ing/home.asp (last visited Sept. 29, 2009).
78. Resolution UK is a peacemaking-centered family lawyer organization that thrives along
side the Law Society of England and Wales (most of its members take litigation engagements).
Resolution UK's Code of Practice bears study by U.S. family lawyers (http://www.resolu
tion.org.uk/site_content_files/files/code_of_practice_22.2.07_final.pdf).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
geous judges, such as Hon. Aviva Bobb79 and Hon. Rebecca Albrecht (pio
neer of the Maricopa County Superior Self-Service Center in Phoenix)80
provide peacemaking guidance to litigants and lawyers in their own com
munities and replicable models for courts worldwide.
To promote peacemaking in the legal profession, I propose the following
agenda:
1. Add peacemaking to the required continuing education for all fami
ly lawyers and a separate certification for specialization in dispute
resolution and peacemaking should be considered for adoption.81
2. Encourage a Peacemaker Impact Assessment as to the design and

furnishing of court facilities, appointment of judicial officers, train
ing of staff, and promulgation of court procedures;82
3. Seek governmental and foundation subsidies for peacemaking pro

bono community services and peacemaker practice-building oppor
tunities in both the public and private sectors that would provide
greater personal meaning and career satisfaction for lawyers.83
4. Develop incentives for lawyers to transform their offices into class

rooms of client education to teach peaceful client empowerment and
provide resources for clients to practice peacemaking in their legal
cases and in other aspects of their lives.84
Whether one practices in a big city or a small town, or whether one rep
resents clients with major financial estates or people just trying to survive
below the poverty line, the lawyer can add peacemaking to his or her prac
tice. Now is the time to look beyond the legal issues to the lives you can
affect for generations. By resolving and preventing conflict through a
79. See text accompanying supra note 25.
80. See generally Judicial Branch of Arizona, Maricopa County, Self-Service Center,
http://www.superiorcourt.maricopa.gov/superiorcourt/self-servicecenter (last visited Sept. 29,
2009).
81. A comprehensive proposal for Lawyer Specialization in Conflict Resolution can be
found in F.S. Mosten, Unbundling Legal Services to Help Divorcing Families, supra note 55.
82. See F.S. Mosten, Institutionalization of Mediation, 42 Fam. Ct. Rev. 292 (2004); F.S.
Mosten, The Potential of the Family Law Education Reform Project for Family Lawyers, 45
Fam. Ct. Rev. 5 (2007).
83. F.S. Mosten, The Path of the Peacemaker: A Mediator's Guide to Peacemaking,
ACResolution Magazine, Spr. 2006, at 8.
84. Such incentives could include credit for bar dues, state tax credits, hours for mandato
ry continuing legal education, priority in the court system; satisfaction for family-law special
ization requirements; or eligibility to receive books, DVDs, computers or other educational
materials on a complimentary or reduced-price basis. You might research the movement and
pending legislation for a United States Department of Peace (HR 808 introduced by
Representative Kucinich) and National Peace Academy (www.nationalacademy.us) that might
accelerate the time when such incentives can be encouraged and funded.

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00
peacemaking lens, the lawyer can help clients make a true difference for
themselves and heal their families. At the same time, the lawyer can con
tribute to clients' lives in a profound way through healing, encouraging
forgiveness, and promotion of interdisciplinary problem solving with an
emphasis on empowerment and family harmony. In so doing, the lawyer
can be re-energized in the practice of law.
It is my hope that this article will motivate lawyers to undertake further
reading and training in how to bring peace into their own lives and those
of their clients. As a concrete first step, consider taking the following
Lawyer Peacemaker Pledge:85
Lawyer Peacemaker Pledge
I will think about creating peace for individuals and families.
I will use my peacemaker efforts to help maximize healing and harmo

ny:
In my own life;
In my own family;
In my office;
In my work with clients, their families, colleagues, and other partic

ipants in the family law system;
In the legal profession; and
In my local community, my country, and throughout the world.86
Date:_ By:_
Directions: Place the signed peacemaker pledge into a sealed envelope.

Put the envelope in a safe place. On the one-year anniversary of the
pledge, open the envelope, take out the signed pledge, think about last
year's peacemaking efforts, and then repledge for another year.
85. See F.S. Mosten, The Client Library: Law Firm's Preventive Law Classroom,
Preventive L. Rep., Fall 1995, and the Southern California Mediation Association's Forrest S.
Mosten Conflict Resolution Library Project, http://www.scmediation.org/westernjustice_cen
terjibrary.asp.
86. Adapted from Forrest S. Mosten, Mediation Career Guide (2001).

189.62.45.195 on Mon, 16 Oct 2023 09:16:34 +00:00

MOSTEN LawyerPeacemakerBuilding 2009

Uploaded by

Copyright:

Available Formats

MOSTEN LawyerPeacemakerBuilding 2009

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MOSTEN LawyerPeacemakerBuilding 2009

Uploaded by

Copyright:

Available Formats

Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court

Author(s): FORREST S. MOSTEN

Stable URL: https://www.jstor.org/stable/25740712

This content downloaded from

This content downloaded from

Approximately a decade ago, I decided to focus totally on peacemak

2. Nancy Cameron, Collaborative Practice: Deepening the Dialogue 66, 97 (2004).

This content downloaded from

ties, our mindset is generally competitive and adversarial.3 Ad hominem

This content downloaded from

II. Evolution from Adversarial Advocacy to Peacemaking

Another approach to peacemaking is the discipline of "mindfulness,"

This content downloaded from

concentrates on the personal evolution of lawyers to better do our jobs by

B. Comprehensive Law Movement

This content downloaded from

law movement that are already part of many lawyers' practices:18

Restorative Justice (RJ): Although it is often used in the criminal setting, RJ

C. The Law Practice

This content downloaded from

focusing on the future for comprehensive resolution, and explicit adoption

1. Negotiation and Problem Solving

2. Eliminate or Reduce Threats and Blame

This content downloaded from

the other party as well as developing and exploring options (brainstorm

4. Valuing Peace and Empowerment for Lawyers and Clients

b. The importance of clients' return to wholeness. Does the lawyer encourage

This content downloaded from

III. Peacemaking Services for Family Law Clients

A. Client Advisor as Peacemaker

This content downloaded from

The first step for a peacemaker is to provide informed consent to the

Assisting the Client to Make an Informed Choice

This content downloaded from

4. Four-Way Settlement Conference

5. Collaborative Settlement Conference

This content downloaded from

service provider to ensure the client's fully informed and empowered

This content downloaded from

any of the following ways:

3. Refuse to take advantage of mistakes committed by opposing parties and

5. Set a peacemaking tone at settlement meetings and court hearings through

7. Listen?truly listen?and show that the lawyer is listening to the concerns

This content downloaded from

Courts can provide a public, accountable, and enforceable option for

This content downloaded from

ial court hearing. "Mediation" is used to describe evaluation and directive

In contrast, another definition of mediation states:

While "mediation" is the subject of both definitions, these approaches

This content downloaded from

spective. The difference is whether one remains a traditional family lawyer

This content downloaded from

Even though mediation has been so important in changing the land

This content downloaded from

D. Unbundled Lawyer as Peacemaker

This content downloaded from

Limitation of legal services based on informed consent and a written

1. All Purpose Unbundled Counselor, Coach, and Advisor