Ep. 12: Woody Mosten on Peacemaking as a Profession

Episode Overview

Forrest S. (Woody) Mosten has a full-time practice as a family lawyer and mediator serving as peacemaker who never goes to court. He is also a professor at the UCLA School of Law, teaching courses such as Mediation, Lawyer as Peacemaker, Family Law Practice: A Non-Litigation Approach, and Intro to the Lawyer-Client Relationship.

Mosten trains lawyers and mental health professionals in mediation and collaborative practice and lectures worldwide as a conference keynote speaker. He has authored a number of well-known books. Mosten received the 2004 ABA Lawyer as Problem Solver Award and Lifetime Legal Access Award.

In this podcast, Mosten joins host Rackham Karlsson to discuss the profitability of a preventive practice that doesn’t offer litigation services and the benefits of narrowing your focus to a subspecialty and becoming an expert in that particular sphere. 

Key Takeaways

  • It is a common misconception that the most profitable aspect of law practice is litigation services. Mosten argues that it is possible to have a lucrative peacemaking practice; in fact, his bottom-line profit increased by 33% when he abandoned litigation.
  • There are advantages to answering your own phone. The personal contact a mediator makes with potential clients not only allows them to bond with you personally, but also gives you the opportunity to determine which services will be the best fit.
  • Mediation practitioners must be serious students of the work. The same way litigators continue to take courses and remain informed through professional reading, peacemakers must be lifelong learners who study the discipline and commit to being competent and engaged.
  • Narrow the focus of your practice to a specific subspecialty. Consumers are shopping for experts in a particular field and colleagues are willing to refer business that matches your skillset. 
  • Consider utilizing short handouts as a tool to help clients navigate the mediation process and explore their options.

Listen Here

Episode Transcript

Rackham:

Welcome to the ADR Initiative. This is the podcast where you’ll hear from successful mediators, arbitrators, collaborative law attorneys, coaches, and other alternative dispute resolution professionals about what they do, how they got here, and valuable lessons they’ve learned along the way. I'm your host, Rackham Karlsson.

Today I'm talking with Woody Mosten. Woody has been a mediator in private practice since 1979. At UCLA School of Law, he teaches Mediation, Lawyer as Peacemaker, and Family Law Practice: A Non-Litigation Approach. He’s also a collaborative family lawyer who specializes in negotiating fair settlements based on informed client consent. He is the author of several best-selling books in mediation, collaborative practice, and expanding legal access, and he travels internationally to train professionals to build profitable peacemaking practices. Welcome to the show, Woody.

Woody:

Thank you very much, Rackham.

Rackham:

It’s great to have you here. So let’s just jump right in. Why don’t you tell us a little bit about what services you provide in your business today.

Woody:

Well, let me start with what I don’t provide. For basically the last two decades, I have not provided court services. And it is probably important that I note that in my practice I make it very clear that I am not available for court engagements and that I limit my practice to peacemaking services. The reason I mention this is that I – as well as many people – often are afraid of both limiting our practice away from court or announcing that we’re willing to do so, and I found that the year after I made that choice (and it wasn’t an easy one) my practice grew about 33%. It’s made a very big difference in my practice.

Within the practice of what services I offer… About half of my time, I’m a neutral mediator with various models and styles, and the other half I serve as a limited scope lawyer in various ways. One is as a collaborative practitioner, both with lawyer-only and interdisciplinary models. I serve as an unbundled or limited-scope coach for unrepresented people. I represent clients who are in mediation with other neutrals – and I make that an unbundled service so that someone wanting to go through mediation could hire me. And then I do a number of services which are preventive in nature. I would call them as a generic sense being a legal and conflict wellness provider.

Rackham:

Can you expand on that last bit? What’s involved in that preventive type work?

Woody:

Well, first of all I think it’s important to understand what the concept is… And that is most lawyers, particularly family lawyers, are trained in a dispute model, meaning we get involved when there is legal or conflict angina already. So the best that we do – and I think we can do some very good work – is giving our clients nitroglycerine and a tourniquet to stop the bleeding and then to help people recover and heal after that. I believe that lawyers and dispute resolution providers can serve even a more important service by helping people avoid court and avoid conflict in the first place. There are a number of services that one can do for that. One that most people know about are partnership agreements, premarital agreements and cohabitation agreements (I call those “relationship formation agreements”) which help people govern new relationships to help them succeed in those relationship hopefully, but if something happens, give a roadmap to make a non-catastrophic dissolution.

But there are other services as well. A common service is to help someone after they’ve had a dispute to have a guidepost for the future (I call those “future dispute resolution protocol”) so that it guides people in a contractual way to work together when there’s a problem rather than going to court at the first instance to build in a number of dialogue and negotiation opportunities. I could expand on that but those are two of the basic services.

Rackham:

That’s great. So the list that you just described – mediation, collaborative law and unbundled services… Did you say that’s about half of your business today?

Woody:

Mediation is half, and the other half are all the other services combined.

Rackham:

Great. You also do this thing where you travel and help other professionals build their businesses.

Woody:

That’s a second job. I have a full-time practice, and then virtually another full-time training and consulting practice. And then a third job is to do writing and preparation of materials. Fortunately, I love what I do and there’s a lot of need. I have a very understanding family, and my health is good, so I spend quite a bit of time on these three disparate projects.

Rackham:

You’ve got your hands full. I do want to speak just briefly to your Profitable Peacemaking Practice seminars. I attended one of them last year here in Boston, and when I tell people that I’ve seen literally tears of relief when people give up litigation – one of those moments was at one of your seminars, and it was really a very powerful moment.

Woody:

Thank you, Rackham. I remember that, and the lawyer who did actually cry with relief. I’m pleased to say he kept to his commitment and has a profitable practice and has not had to go back to court. Part of that seminar is to help people understand why they can actually make more money if they avoid litigation. There’s a misnomer that if you have a high revenue stream from litigation, you make more money. But when you really look at the overhead and factor the collectability, the wear and tear, and the lack of real commitment to what you’re doing, I think some of that profit dissipates. The kind of practice that I have, with a 17% overhead and virtually 100% collectable, allows for a very different kind of practice – and that is not even beginning to say how much more satisfying it is to help people resolve conflict, let alone have to deal in a court system which looks very much like some of the presidential debates that we’ve been seeing lately.

Rackham:

I just want to highlight something you just said: 17% overhead – that’s fantastic. I’m in a similar boat too. You can have a very nimble practice when you don’t have all the overhead that goes along with litigation.

Woody:

Some of it requires some difficult adjustments. It’s not all easy. For example, I answer my own phone, and I do all my own work. Now, some of that time isn’t the way I dreamed of spending practice time, answering calls that go nowhere, having to proofread in an extremely close way… It’s not the height of human experience. It’s not what I dreamed about. On the other hand, I found that when I had a receptionist, I lost a lot of clients. Not just because they made mistakes and lost phone numbers and delayed getting back to them or to me, but they didn’t know the product that I was offering even though I spent a good deal of time training. Someone like you, when you are dealing with a client, you can handle some of the assessments and be able to do that upfront work very well, and I think permit clients to not only bond with you personally, but you can help them figure out the proper protocol and the proper services for them because you have direct contact.

Rackham:

Yes, that’s so true. I’ve tried different answering services, and like you say, it didn’t quite work out. I ended up having people coming to my office who weren’t really well-suited to what I offer, and people often have just a couple of initial questions – they want their mind put at ease or they want to understand a little bit better what’s mediation versus collaborative. Just taking a few minutes to answer those questions on the phone can help make sure that you get the clients you really want and who you can be of most service to.

Woody:

I agree with that, Rackham. But in addition, let’s assume that the person you’re speaking with cannot afford your fees or doesn’t want to pay them – one of the two. When you treat them with dignity and respect and take the time to make a suitable and appropriate referral, you’ve left a very indelible, positive impression, and sometimes those people actually come back and they’re ready to pay the fees. Or they have friends and they say, “Look, I didn’t hire Rackham the first time, but I should have and I would the next time.” These are the very best marketing opportunities, so I believe taking the time to – as you say – work with people’s questions and concerns and then make an appropriate referral sometimes works out in the long run to be a very positive marketing opportunity.

Rackham:

Yes, I think that’s right. In all forms of marketing, whether it’s in person, online, whether you’re writing an article or talking to somebody on the phone – as long as you stay in the spirit in being of service, people receive that well, they’re grateful and it comes back around in your business.

Woody:

May I add something to that?

Rackham: 

Absolutely.

Woody:

Being of service I would say is first. But the second is really being competent and informed. And I’m talking about the practitioners who are listening to this podcast. As you know, in my training, I push and prod to see if the people who are there are really serious students of this work. Have they done the hard reading and the training to be ready to deliver these services? Because it isn’t just that we’re doing God’s work. We have to do it well. There are too many practitioners who have chosen these alternative delivery methods, but they haven’t done the hard, competent work that they would if they were doing a more traditional service where there are more traditional and more available trainings. It requires a lot of ground work. For example, in Los Angeles I facilitate a group of experienced peacemakers of all professions (mediators, collaborative professionals) where we meet on a regular basis, and they actually pay me for my time, where we focus on these subjects and go deeply. For example, we might spend an entire two hours on opening statements of the parties. We just spent about four hours on confidentiality. We work really hard on informed consent. There are so many areas where a beginning course in mediation or collaborative practice just is a dust, and I think someone who is a family lawyer or a transactional lawyer knows that they’re lifetime learners. They go every year for MCLE courses and reading, but it’s not always true of those who do the more consumer-oriented peacemaking services that we’re talking about, but I think it should be.

Rackham:

There’s no sense in offering a peacemaking practice if you can’t actually offer it – walk the walk and be able to provide a different experience than what you would otherwise. So that’s what you’re doing today. Can you take us back a little bit and tell us how you chose to do what you’re doing? How you ended up where you are today?

Woody:

Well, I’ll try to keep it short. I know we have limited time here. Those who know about me know that I started with Steve Meyers and Len Jacoby in the first private legal clinic in the United States in 1972. (We could spend an entire program on that.) But in any event, after launching that in southern California I went into teaching. I taught in Macon, Georgia, at the Mercer School of Law. I was a Director of Clinical Education and from there was appointed to be Assistant Regional Director of the Federal Trade Commission in Los Angeles and had a real opportunity to supervise lawyers in consumer-oriented projects.

Through that odyssey I learned about mediation and when I went into practice in 1979, that is what I wanted to do. I opened in a store front, but I didn’t have enough business to fund a practice in mediation. So I practiced family law and tried to mediate whenever I could and marketed in all kinds of ways – made more mistakes than anyone I’ve ever met – but over the years, developed a substantive expertise in family law, learned how to mediate and then continued to learn and relearn and relearn – I still am relearning – and over the years became very invested in legal access and developed unbundled legal services. I did it in my own practice, and I taught it and wrote about it. Actually it’s a story that Stu Webb and I like to talk about. He and I met in the ‘90’s where he was starting with something called collaborative practice, and I was talking about unbundling. We would meet with a group of renegade practitioners – we actually paid our own way to meet with each other – and turns out I learned from him and a number of others, including Sue Hansen in Wisconsin, to incorporate collaborative practice. I found it to be the most exciting aspect of my practice along with mediation. That’s how those started.

My preventive work was very deep in that the father of preventive law, his name was Louis M. Brown and he is credited with really launching the whole field, I had the fortune of having him as a mentor and a friend and over 25 years I really learned at his knee about prevention. I have a new article coming out in January with the Family Court Review on the family lawyer as preventive practitioner and there are chapters about this in my various books.

Rackham:

That’s great. Now you mentioned some mistakes, I think you said you made more mistakes than anybody you know. From a business perspective, what’s one really big mistake that you made along the way and what did you learn from it?

Woody:

I think the big mistake I made from the beginning is I tried to mediate everything. I saw myself as a mediator, and I was willing to basically take on any kind of dispute as opposed to specializing in the family and partnership arena (I call those formation and relationship disputes). I would do personal injury mediations, I would handle neighborhood mediation… What happened was I learned with some very hard lessons that practitioners like you and I – we focus on process, but most consumers focus on results and substance. They think, “What is the beef? What am I going to get?” and they think, “I want an expert in family. I want an expert in employment. I want an expert in personal injury.” The fact that we’re able to do it in a non-adversarial way is a bonus, but most people don’t select their practitioners that way. It took me many years to finally limit my practice, refer out and not take on matters that I wasn’t competent to do, and then focus on a subspecialty – and a subspecialty of family law is consensual dispute resolution in family law. I think that’s true of every field.

Rackham:

Yes, and of course choosing as you say a subspecialty or a niche – the sooner you do that, the sooner you become known as somebody who’s experienced and skillful in that niche and you will get more business through that narrowing, which seems counterintuitive to a lot of people. A lot of people think they need to keep their doors wide open when really sometimes narrowing your focus, and I would say almost always, narrowing your focus is a better business decision.

Woody:

I could not agree with you more. I think a second major mistake I made, although I don’t know if I had the courage to do it otherwise then – is I litigated for too long. I wanted to eat three times a day, and I felt that the low hanging fruit was the litigation. People come in for litigation, and I was actually good at it. I didn’t love it, but I was good at it. I could do it and it brought a lot of revenue in that kept the doors open, and the way I saw it at the time is it was a little like Robin Hood. It would allow me to fund my peacemaking practice, my mediation practice at the time and other services later. I think today, if I were to do it again particularly in 2016 and not in 1979, I wouldn’t litigate at all. I advise my law students from UCLA who really want to do peacemaking work to go into peacemaking from the start. So that instead of learning skills like taking depositions and cross-examination and filing technical motions – all of which are very important skills in litigation, but they don’t translate in my view into a mediation or collaborative room – I would much rather have them start from the beginning doing these very difficult non-court work. It’s one of the reasons I developed the course Family Law Practice: A Non-Litigation Approach. Have practitioners start with that, so that after five years, instead of carrying the water for a partner where you’ve learned skills you have to unlearn later, you can start developing your own practice or a practice with someone else and get the skill of negotiation and case management and teambuilding and all the things that we need in our practices that require a lifetime to get better at.

Rackham:

I think that goes hand-in-hand with what we were saying before about narrowing your practice. There’s also just the time commitment, right? I think that’s what you’re saying. The more you branch out, the more time you need to spend on all these other things. I have done a couple of estate plans in the past, for example. I don’t do them anymore because the amount of time commitment and energy that was involved in being good at that was taking away from my ability to focus on the mediation and the collaborative law and the unbundled services.

Woody:

I could not agree more, Rackham, but there’s another factor in it. That is pure motivation, joy and satisfaction. I really love getting up in the morning and going to my work. I say that after 44 years in practice. If you are not enjoying what you’re doing… Many people could do it. There is a real motivation to keep a roof over your head and send your kids to college and be able to eat other than tuna casserole five times a week. On the other hand, there is so much more synergy – and people, clients, colleagues, referral services pick it up. They know what you enjoy doing, and I think having that joie de vivre is the essence of a real successful practice – and having control over one’s own life, if that’s important to you. All those are truly important variables in building your practice.

Rackham:

That’s great advice. I’ve heard from too many lawyers who’ve been litigating for 30-plus years and they don’t like what they do and they haven’t liked it for a long time, but it’s hard for them to imagine doing something else. One of the things I’m hoping to accomplish through these interviews and my writing is to encourage people to see it a little bit differently. You mentioned that your revenue went up 33% after you quit litigating?

Woody:

No, my bottom-line profit.

Rackham: 

Even better.

Woody: 

Yes, my bottom-line profit. My revenue didn’t go up as much, but what stayed in my pocket did – 33%.

Rackham:

At the end of the day, that’s more important than top-line revenue, right?

Woody:

Yes. I would assume, by the way, that people who follow you – follow you everywhere – but that you have many people in the Northeast in the Boston area. This Friday turns out I’m going to be with David Hoffman to do a one-day program. The fees from that program are all being donated to the scholarship fund in his name for diversity scholarships in dispute resolution. It’s a program in Boston on Friday called Lawyer as Peacemaker. The reason we’re doing this program is exactly what we’re talking about – so that lawyers generally (but there will be professionals in all fields) can get a dollop, can get a taste of what it’s like to practice in a different way. It is majorly different from top to bottom, as you well know and you model so well, and I’ve seen that in your work, Rackham.

Rackham:

Thank you for that. You talked about some of the mistakes that you’ve made. On the flip side of that, what’s one of the best business decisions that you’ve made to date?

Woody:

This is going to sound very weird, but it was to become a specialist in family law. It was to take a curriculum – we have it in California where the state bar offers a certification and there’s a course, 50 hours of substantive law – and by taking that course, two things happened: One, I was much better at the table. I saw issues in a nuanced and complex way that I hadn’t seen before. I had heard of certain cases – I hadn’t read them. This was really a chance to focus on my field. But it also demonstrated to my other colleagues, the colleagues that I had litigated with before (I don’t mean as co-counsel, I mean we were on different sides, but we were still part of the same system) and they could see that I had that substantive knowledge as well. It was clear I was motivated, spending my time in the world of mediation, collaborative practice, etc. So the people in my community began to see that I was a go-to person to handle their matters. When I gave up litigation, then my former – and they really were in some ways competitors for the same business – they saw I was never going to compete for the same business. I don’t offer the litigation product, and I refer an awful lot of matters away that require at least litigation to start. There is nothing that builds a practice faster than when you send business to someone. They have two things: One is that you care about them and you value their work, and they profit from it. But also it shows that you have the willingness and the savvy to not try to take everything, and that you’re referring things away. It’s a message that gets cases back. I will never forget a time that I referred to a litigator, and he referred back a premarital agreement, a huge one, that I know I would not have gotten other than the fact that I trusted him to handle a litigation matter.

Rackham:

Wow, yes, so continuing that same theme. Narrowing your practice, choosing a field, becoming really good at it and all of the benefits that just flow from that in so many different ways. That’s fantastic. What’s one tool in your office, your computer, your mobile device that you would recommend to other professionals?

Woody:

It’s not one tool and it could be disseminated in a number of way, but it’s discreet, short handouts. Clients are not born to be clients. They have to learn to be clients, and I find that we at the table can do a great job as mediators and collaborative professionals in teaching clients how to be the best that they can be. But they need help to do that, so I have developed a number of handouts. Some of those handouts I refer to or I offer in my book. Others I haven’t got to yet, and maybe one day I’ll assemble all of them.

But for example – I’m going to give one that very few people listening now have – it’s a handout on dating and introduction of non-romantic partners in the area of family law. Now anyone in family law knows that the courts are filled with litigation due to emotional turmoil caused by either jealousy and rage over the other partner no longer being faithful and being with someone else, even if they’re legally separated – the legal document isn’t going to calm the emotional fears when someone is dating or having intimacies with someone else. Or when that new romantic partner comes to meet your children. It’s primal. I don’t know anyone who isn’t emotionally moved by that. I know when I had a divorce and my own daughter was meeting a romantic partner of my former wife, it was very difficult. No one is that good. No one is that big. But talking about it and having agreements on it is the key to being able to manage those tough emotions.

So I have a handout, and in fact I used that handout two or three times last week. I’m about to send it out to another mediation couple. These are suggested agreements and templates that can be modified. A simple example is school activities: “Romantic partners shall not attend school activities for a period of x months,” or, “Romantic partners may attend these activities but defer to the parents in a parent-teacher conference.” The family, the parties can work out what they want to do – there’s no one right way. But the fact of talking about this very uncomfortable subject – very few people come in and either have talked about it or say, “I want to talk about what will happen as far as dating is concerned,” but it’s so important to have at least an opportunity for those discussions. They don’t always go well, Rackham. Sometimes they provoke more conflict in the short run, but I’ve found overall they prevent disruption and empty seats at the mediation table.

Rackham: 

Sure. I think it provokes conflict, but that’s conflict they would have faced eventually anyway, right? I think you’re right. Very few professionals have that particular handout, or even any handouts at all that they give to people to help them be informed and consider options and move gracefully through the process.

Woody:

Anyone who’s listening, I’d be pleased to send it to you and you could send it out to anyone who’s going to take your webinar. I really believe in sharing the work that I’ve done. I’ve benefitted from so many others such as you and other colleagues who have been very generous with your work and wanting everyone to be able to use it.

Rackham:

Great, thank you. What’s one book that you consider essential reading for anyone doing ADR or related services?

Woody:

There’s two kinds of books that I think need a lot of work. One is – I call them perspective books. The second are strategy books. The perspective book that I like best is Bringing Peace Into the Room by Daniel Bowling and David Hoffman. It’s an anthology of really good peacemaking articles, and I’m only jealous that I don’t have one in there. It’s really very, very good. Another book like that in perspective is Stories Mediators Tell by Lela Love and Eric Galton. Excellent book. They don’t have it on family – most of these stories are personal injury mediation, but they can be extrapolated to any field.

For strategy books, I’m still a believer in Chris Moore’s The Mediation Process. I think it’s probably the best book and has been for 30 years. It’s really very, very good. I would highly recommend that book as a strategy book.

Rackham:

That’s for the overall strategy of mediation, a start-to-finish framework?

Woody:

Yes. Another perspective book that I like very much is by Nancy Cameron, Deepening the Dialogue. I think it’s the best book in the collaborative field. It’s extremely, extremely good. I like Peter Coleman and The Seven Percent Solution, a book for high conflict strategies that I think is very, very good. I know I’m not naming some of the best sellers that are out there now, but these are my favorites.

Rackham:

Those are great recommendations, and as usual I’ll be sure to add links to them in the show notes for this episode. We talked a little bit before about the challenge of giving up litigation or feeling like you can’t make a living doing what you call peacemaking practice, what others might call ADR. For those who are just starting out or wanting to grow their ADR practices, what have you found to be the best way to attract new clients?

Woody:

That’s a tough question. You know how they say sometimes the hardest thing is just showing up? Being there. Being a committed person in your community to this field. There’s two major ways of attracting clients. One is direct from the consumer and the second is referral, indirect, from other professionals and other mediators and collaborative professionals.

This is going to sound very weird to some of your listeners, but I think your greatest referral source are other mediators and collaborative professionals. They are often not mined the way they should be. For example, if I have somebody who needs a matter in Boston, I know about you. I know about David Hoffman. Even though I’m far away, I know who some of the good people are in your community, so I am a major business-getter for you and for others in Boston. The same is true in every community. If you’re doing employment mediations or employment collaborative work and a family matter comes in, they need to know who are in fields other than what they do. That to me is a major way of gaining a practice, but you gain that, in my view, not in one day or one month or one year.

It’s October now, so we look for baseball, and one of the things that baseball taught me is you look at a career – a lifetime batting average. So when you’re starting your practice and building it, it isn’t that you’re going to be doing it for the first six months or the first year, you’re talking about three, five, ten years from now. That means you work in your local organizations, you show how you can help others, and before you know it, clients are coming your way. It has happened so many times, I can’t believe it’s an accident.

Rackham:

There’s definitely a reputational piece there, and staying connected with the people in your professional community – as you were saying – because when you’re dealing with a couple, let’s say in mediation, and they want to get individual counsel, you want to know that you’re sending them to good people who will be supportive of the hard work that they’re doing with you in the room. That means knowing the people in your community, and then they know you also as being somebody who does that work, is committed to it, and can be trusted with a referral.

Woody:

I could not agree with you more.

Rackham:

Woody, thank you so much for your time. What’s the best way for someone to contact you about your services?

Woody:

One is to look at my website: www.mostenmediation.com, or to call me 310-473-7611. I would love to hear from anyone who has a question. As you know, I really enjoy going to different communities and having them build a practice. It just makes me cry to see so many trained and committed professionals who are starving. They don’t need to starve. In my view, if they can just make a couple quarter turns and they can start making a living doing this wonderful work, it then will assure that they can be able to do it for the next several decades.

Rackham:

Perfect. Thank you again, Woody.

Woody:

My pleasure, Rackham. Thank you for this program and putting your time into it. I hope people can see the kind of competence you have in running the show is the same that you have around your table. 

Rackham:

Thank you. That’s today’s show. Thanks for listening. If you enjoyed the show, please leave a review on iTunes. You can find show notes for this episode, including links to any books and other resources mentioned at zephyrlaw.com/initiative. I have some more great guests lined up, so be sure to join me next time for another episode of The ADR Initiative.