Forrest (Woody) Mosten

Mediator and Collaborative Attorney

Certified Family Law Specialist

Memo from Law Student Heather Weiner

Every month in Los Angeles and in venues throughout the world, Woody Mosten conducts groups for practicing mediators and collaborative professionals. These groups are generally organized by the professionals themselves and feature in-depth interactive discussion of relevant skills and conflict resolution theory as well as consultation and supervision by Woody on current cases that are ongoing in the practices of the group members.In 2009, a third year law student, Heather Weiner, interested in a collaborative divorce career, was invited to visit the group and wrote a memo to the professionals in the group chronicling her experiences at the session.

Mosten Mediation—Discussion on March 10, 2009

Heather Weiner
March 23, 2009

First, let me thank you again for allowing me to participate in your meeting this month—it was truly the highlight of my week in Los Angeles. Listening to your collective concerns, ideas, and feedback was invaluable, and helped solidify my interest in becoming a “peacemaker.”

Before launching into my summary of the discussion, I would like to share an observation that resonated on a personal level. Having been a yoga instructor for several years, I entered law school believing my yoga practice might in some way inform my legal career, but did not know how. Well, yoga’s relevance became clear during your session, because so many of the useful “tools” you described, along with the methods of employing them, are synergistic with yogic philosophy and practice. It was an “a-ha moment” for me, validating both my attraction to this specialized field and my belief that mediation and collaborative practice suit my skill-set and values.


“What tools do you want to acquire to make an assessment on an enmeshed couple?” Woody asked.

Centeredness tools are useful here:

Take a breath. Don’t react.

Stay present. Be grounded. Be adaptive.

Be well-rested and nourished.

Use silence/quiet reflection.

Sometimes clients are most comfortable with mediators who say the least, because they feel heard.

Know when to say “no”.

Ex: when a client’s goals do not mesh with your goals

Set personal boundaries, and mindfully determine how much you can handle on your plate at any given time.

Disengage from the dance and the conflict between the parties.

Actively utilize the filter between input and output—expand the time between them. Strengthen this muscle, and it will help you to determine what is going on with a client on a given day. Breaking down the factors contributing to the client’s mental state can help you to be less reactive.

Pick your battles.

Get coaching yourself, when you’re having a centeredness problem.

Existential tools:

When appropriate, be able to share how you would handle a crisis, a story, or a breakthrough—hone this tool as a learning tool for the parties.

Learn to brainstorm effectively.

option brainstorming

agenda setting

Educate clients as to what their options are—remember to ask yourself “Who is the client?” Explain litigation, mediation, and collaboration in a way that client can understand them.

Don’t focus on results—take baby steps.

Celebration Tools—use these to give a client a sense of accomplishment:

Recognize every agreement, no matter how tiny, affirming that they did a good job.

When a client calls, tell her you are happy to speak with her or glad she called.

Remember that your clients are often getting negative comments elsewhere (namely from family and friends)—therefore, making positive affirmations is very important.

Tell clients to focus on what they are feeling—not what others are telling them. Also, decide who should be at the table and who should not be.

Anticipatory celebration by directing the client to focus on something positive, such as the children.

Try to point out matters that the parties can easily agree on.

Take positive momentum with you—“acknowledgment plus”.

Point out something positive from the session to leave them with.

Next, the group chose to explore the topic of how to develop the parties’ agreement readiness.

Identify and acknowledge the initial position of the parties.

Many skip this important step because they feel it can be polarizing. One way to avoid polarization is by pre-emption—tell clients in the preliminary planning session that you will be using this tool and restating their positions, but that your restatement does not mean that you agree with their position.

Establish trust so that clients feel they have been heard and feel ready to move forward.

Restate the parties’ positions in an empathetic way.

Teach parties to acknowledge each other’s position.

Unstated positions—how do you handle these?

Try asking the motivation behind a stated position—that can often help to uncover the hidden cards.

After opening statements/orientation, you should go through a position exercise, so that you have acknowledged both stated and unstated positions. Suggestion: make a “positions worksheet”.

Purpose of acknowledging positions is to clarify their position and let them know you understand it. Then you want to help them move away from their positions so they’re not entrenched in them.

Once you have acknowledgment of position, the next step is developing why that position is the client’s interest. How does that position benefit the client?

Develop options.

Make a deal.

There may resistance to the above steps—you may wish to suggest “homework”. These steps are often relevant to many parts of the mediation.

“What’s your intervention strategy when a client does not want to share a position?”

Ask the client “How do you intend to get what you want, if you don’t indicate what you want? What’s the payoff to you by keeping it quiet?”

Point out the client’s self-interest in sharing their position—then link that to the concept of “reciprocity”.

Reciprocity—try to sear in their self-interests when explaining this concept.

Ask the client “What can you give him/her that will help you to get what you want?”.

Link de-positioning to reciprocity.

Suggested Reading:

Janet Johnston “Breaking the Impasse”

Michael Burke—writes about psychological motivation

Upcoming Conferences:

AFCC Conference

ABA Conference

AIM Conference

Neve Shalom—village in Israel that is half-Jewish and half-Arabic, they teach peace and conflict resolution

Return to:

Supervision and Consultation

© Forrest S. Mosten

Certified Family Law Specialist
Board of Legal Specialization, State Bar of California