Ahead of the Curve
An Attorney Makes the Case for Mediation
By JOSEPH HANANIA , SPECIAL TO THE TIMES
Los Angeles Times Tuesday March 25, 1997
Home Edition Metro Part B Page 2 Metro Desk
32 inches; 1127 words |
Type of Material: Column ; Infobox
Forrest Mosten, the 1996 recipient of the Los Angeles County Bar
Conflict Prevention Award, believes the legal profession's fate is at
The current legal system is overly contentious, glacially slow,
burdened with skyrocketing costs and sinking ever further in public
esteem, he says. So he is helping lead a small but rapidly growing body
of lawyers calling for nothing less than a revolution in the practice of
In Mosten's vision, attorneys would first act as counselors helping
mediate solutions. Only if that failed would they engage in traditional
Similarly, a lawsuit would become the opportunity for adversaries to
engage in "a potentially transformational experience," opening up
channels of communication, he said.
The alternative to wholesale reform, he says, is an increasing number
of Americans bypassing attorney services. Already, a 1993 American Bar
Assn. study found, 62% of all divorces filed in the Phoenix area had no
lawyers representing the two parties. And according to a nationwide ABA
study, about 70% of individuals with identifiable legal needs never see a
Jerry Shistac, ABA president, endorses many of Mosten's ideas, calling
them "cutting edge" and Mosten "a leader in his field."
Barbara Stark, the attorney who heads the ABA's family law publishing
section, green-lighted the printing of a record number of copies of
Mosten's new book, "The Complete Guide to Mediation."
And Laurie Levenson, associate dean of Loyola Law School in Los
Angeles and a former criminal prosecutor, concurs that "lawyers see their
job as going in and fighting every issue. But really, much of what
lawyers need to do is to listen to the other side, and see if there's any
middle ground. That's a different type of lawyering."
Mediation will become a necessary alternative "because the court
system cannot handle all cases before it. Traditional litigation takes
too long and is prohibitively expensive. In the end, mediation will grow
because it has to," she said.
Despite numerous advantages, only 3% of all lawsuits now go to
The main obstacle, Mosten said, stems from the way lawyers are
educated, with a stress on competitive one-upmanship instead of
preventive, healing models. "The word 'client' is never used in law
school, and the word 'apology' does not exist in the legal language. We
study cases, not people," said Mosten, a partner at the Mosten & Tuffias
law firm in Los Angeles.
A new outlook toward mediation and new legal training are beginning to
emerge. At Loyola, students take classes not just in mediation, but also
in "ethical lawyering," Levenson said. "This includes how to interview
clients, counseling them on the emotional and psychological alternatives
as well as the legal issues." Such classes fill a gap in traditional
legal education, she said.
The endorsement of Mosten's views among the ABA's upper echelons is
surprising given his criticism of the way his colleagues practice law. In
one of many salvos against attorneys in his book, Mosten says: "Instead
of feeling that we are making a difference in our clients' lives and to
society, we often feel like hired guns who play out the family
Too often, Mosten contends, "while the [litigating] parties are trying
to make a deal, lawyers often act as the naysayers."
Admittedly, Mosten did not always have these views. Rather, he came to
them after graduating from UCLA Law School in 1972 and spending four
years as a traditional family litigator.
Drained by his acrimonious practice, Mosten left the firm he
co-founded, Meyers, Jacoby & Mosten (now Jacoby & Meyers), to teach at
Mercer University Law School in Georgia. While there, he read about
mediation and incorporated hands-on workshops into his classes.
Three years later, Mosten became assistant regional director for
consumer protection at the Federal Trade Commission's Los Angeles office.
In 1980, he returned to private practice, putting mediation theory to
work and concentrating on his specialty, family law.
Back then, largely because mediation was so little known, Mosten
logged only 90 hours of mediation in the first year. Now, 75% of his work
involves mediation, encompassing not only family law but also business
disputes, malpractice suits, condominium battles and the like.
Mosten points out that about 95% of all cases, civil and criminal, are
settled through out-of-court negotiations rather than through trial. For
most litigants, then, the real choice is not whether to go to trial or
negotiate, he said, it is how to negotiate: through the traditional
adversarial system--with its wrecking of family, business and
friendships--or through mediation.
Most lawsuits are not filed by strangers, Mosten notes. "They come
from individuals who once had a relationship, where something has gone
wrong," he said. Unlike the litigator who looks to maximize his client's
benefit even at the cost of the family or business, "the successful
mediator helps defuse the situation, restoring whatever was best in the
relationship," he said.
The result: Parents undergoing a divorce may still be able to work
together to help, say, a child in trouble with drugs.
In a mediation, although the disputing parties may be advised by
lawyers, they talk and negotiate face to face. And, unlike arbitration,
mediation results are not legally binding until both sides agree to the
proposed solution. Afterward, however, the results carry the full force
About 90% of mediation cases achieve resolution--roughly the same
percentage resolved through adversarial negotiations, Mosten said. The
difference is that a mediation takes only weeks to resolve, not months or
years, and costs only a third to half as much as a traditional lawsuit,
Clients who opt for mediation are no "nicer" than those who go the
traditional route, Mosten said. "What's different is the process--and the
results," he said. "Mediation simply feels better. If you're in business,
you don't have to spend as much time in your lawyer's office."
In mediation proceedings, offers and counteroffers may not be
presented as evidence in a trial. In traditional litigation, on the other
hand, all proceedings are public. "The public record is forever there for
anyone to come see. Children, for example, can see what their parents
said of each other."
Traditional litigation is historically oriented, Mosten said. "You
exhume the cadaver and pick what went wrong," he said.
Mediators, by contrast, work on healing wounds and planning for the
future. Thus, preventive mediation may be used to negotiate prenuptial
agreements or the rules of a business partnership.
"If mediation grew to 30% of all cases, it would drive the system,"
Levenson, however, warned that while mediation may well work in both
civil and minor criminal cases, it cannot take the place of criminal
trials for more serious offenses. There, she said, the harm is not just
to the victims, but to the public.
Still, she said, by freeing the courtroom dockets of an escalating
backlog, mediation will free the justice system to do what it does
best--try major cases.
(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)
A Lesson in Listening
One of attorney Forrest Mosten's recent mediations involved a major '60s
rock group, whose members had stopped talking to one another as they
spent hundreds of thousands of dollars litigating their differences.
Problems had flared again with the re-release of the group's songs.
The ostensible problem was money, Mosten said. But when the band
members got together in his office, each talked about how they had never
listened to each other. One of the band members accused another of never
liking his lyrics, while two others traded accusations over a romantic
As the underlying issues surfaced during the two-day mediation, the
band members lowered their voices, and a few even hugged each other.
"They agreed to disagree, to find out what was workable between them, and
go from there," Mosten said.
Score another point for the power of mediation.
- Joseph Hanania
PHOTO: 'The word 'client' is never used in law school, and the word
'apology' does not exist in the legal language. We study cases, not
people.' --FORREST MOSTEN
PHOTOGRAPHER: BOB CAREY / Los Angeles Times