Conflict Resolution

Advanced Problem-Solving Strategies

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Forrest (Woody) Mosten is a mediation trainer, and a prominent collaborative divorce lawyer and mediator here in Los Angeles. I came to his attention when I attended a seminar last year that he led on collaborative law, in which I had some fun playing a somewhat skeptical role. This week I had a chance to meet with Woody to discuss the possibility of a different kind of collaboration–possibly leading to an article or a book–and learned more about Woody’s background as one of the pioneers in developing legal clinics for middle class clients (having been one of the founders of Jacoby & Meyers), as well as in unbundling legal services.

We talked about how our different career paths (mine the more traditional route of practicing with corporate law firms until I started my own firm about 18 years ago) had led us to a similar perspective on the practice of law and the potential of alternative dispute resolution. Woody bravely started a mediation practice more than 30 years ago, at a time when hardly anybody knew what mediation was. His career charts a series of innovations in the delivery of legal services and the resolution of conflict, many of which were initially greeted with hostility, and only later embraced, by the powers that be in the bar and the courts. Meanwhile, I was coming to the gradual realization after years of litigating complex business disputes, that often the most valuable service I could provide for clients was to find a way for them to dispense with my services, and find another way to solve their problem. That is because lawsuits themselves tend to become as large a problem for the participants as the underlying disputes. I also realized that even though the vast majority of my cases ended in negotiated settlement, we usually followed a very inefficient and expensive path to get to that point. Meanwhile, a lot has changed in the rules and practice of traditional litigation to make the process even more expensive and inefficient. I realized some time ago that there must be a better way, which is why I am developing a mediation practice as well as adopting some new approaches to my more traditional litigation practice.

I asked Mosten if he thinks the market for mediation services is going to be large enough to support the growing number of people interested in practicing in this field. I knew that he often confronts this question in training mediators and helping them launch careers. He thinks the untapped potential of the field is vast. Currently, most clients of mediation services are lawyers who only resort to mediation after they are deep into lawsuits and looking for another way to bring cases to a conclusion. The general public is only dimly aware that filing a lawsuit might not be the only way to initiate resolution of a dispute. Once people start to understand the potential for resolving disputes through mediation, they might still call their lawyers first, but they are going to be less likely to resort to a lawsuit first. Instead they might set up a meeting with a mediator to attempt to reach a resolution. This has already become a common practice in the divorce field, so it is bound to spill into other areas.

I’m looking forward to continuing the dialogue to see what might result from it.