Tying It All Together: Mediation, Unbundling, Collaboration, and a New Paradigm

What I hoped to simplify is getting more complicated. I am doing research so I can report to the readers of my blog, to fellow members in the West Virginia State Bar Family Law Committee, fellow members of the WV State Bar BOG Family Law Mediation Subcommittee to the BOG ADR Committee, and to fellow members of the two BOG “Future of the Law” committees on these closely related subjects.

I find myself staring at four 300 page books, “Unbundled Legal Services – A Family Lawyer‘s Guide“  by Forest S. Moston and Elizabeth Potter Scully; “Collaborative Divorce: Helping Families Without Going To Court” by Forrest S. Mosten, “Structured Negotiation: A Winning Alternative to Lawsuits” by Lainey Feingold, and the first mockup of my book, “Perspectives Of a Small Town Lawyer”, which I hope to publish before the end of the year. These 1100+ pages are a good start in understanding the challenges and opportunities these ideas provide.

I am acutely aware that these three committees, other lawyers, family and circuit court judges, our WV Supreme Court, State Disciplinary Counsel, and legislators will have to be informed on these subjects before real progress is possible.

I began work this morning encouraged by a 20 minute interview on “The Lawyerist Podcast“ of “The Father Of Unbundling”, Forest S. Mosten, and knowing I have two of his books. He is a great resource on these subjects. https://lawyerist.com/podcast-143-forrest-mosten/

I was also encouraged by Mr. Mosten’s assurances that unbundling is not new, that it began over 20 years ago, that forty (40) states have “unbundling rules” and that the American Bar Association (ABA) is highly in favor of unbundling, mediation, and collaborative legal approaches. It is an ethical approach with a very low rate of malpractice claims and abuse. But, the things I am referencing below are not generally in use in WV, where they are so desperately needed.

I was disheartened to find Mr. Mosten’s four page, 150 paragraph, ridiculously complicated, unbundled fee agreement!

It will be no surprise to anyone who knows me that I prefer my approach, having the client sign off on an article I’ve written on unbundled legal services that he or she has carefully read the article and agrees to its concepts.

Mr. Mosten’s form contract with 50 or 60 checklist items that must be answered “Yes” or “No” before the unbundling meeting can begin seems to undermine the idea of an informal robust full consultation and Legal coaching arrangement, which is the model that I think is the logical first step in West Virginia.

Forging on, we also have the problem that at least 50% of our family law attorneys in West Virginia, by temperament, training, or mindset, are unqualified to provide unbundled services, to be fully committed the mediation process, or even to consider “collaborative divorce“. They have been trained, or are of a nature to believe, that lawyers are adversaries, fighting to defeat an opponent, not collaborators committed to improving the lives of all parties and their children.

These people continue to do things their way, and their approach will still exist 10 years from now. But I think we can influence substantial change. The future will demand it.

By analogy, I recently had an idea how the my church, The United Methodist Church, can change its approach to food. You see, our church has survived on covered-dish dinners, pancake breakfasts meat and potatoes, candy sales, cookie sales, strawberry shortcake, homemade ice cream,  and chocolate Easter Eggs for many decades.

Just think the reaction if the next covered dish dinner menu were “The Induction Phase” of the Atkins diet or Dr. Gundry’s Diet Evolution! It would be a riot in the church basement!

But what if every such event included had an alternative menu, only 10% at first, of low carb, low sugar, unprocessed, natural, organic, foods. And what if the church devoted serious thought to educating our members about the nutritive value, the health benefits, and the need, the crying need, for us to stop bingeing on high sugar high carb highly processed chemically laden foods?

The meat and potatoes and apple pie people could continue to do their thing while just down at the end of the table a relative few people are breaking from the past, trying something new, and improving their world? Perhaps in 5-10 years half the people would have changed their habits and the Church would be a source of physical health and emotional health as well has religious health. During the same period, perhaps the Church could ease away from the supernatural dogma, focus on universal values (secular and religious values), and physical fitness and mental fitness.

Just think what a rational church, with healthy members, filled with energy and commitment, could do to change a community, a State, a Country, and a World? I realize these words might offend the devout, but they reflect sincerely held and well-intentioned suggestions.

That is why my approach to “the future of the law”  has been multifaceted. Besides learning how to run a law office efficiently with cutting edge technology, I suggest a revision of the family law mediation rules, a change in the adversarial mindset of lawyers, mandatory Family Court mediation on all issues, streamlining and enforcing the rules of discovery, putting our toes in the water of collaborative divorce, and considering early, even prelitigation, mediation. I urge mediation for self-represented, pro se, litigants. I also suggest an expanded role and training for paralegals and a modern focus on “preventive law”.

If “collaborative divorce” as I understand it includes a core component that the attorney “collaborative lawyer” must withdraw if settlement fails and hand the case over to another attorney, I consider it to be utterly impractical and unworkable in West Virginia. Many parties could barely afford the first lawyer, let alone a second one!

For me, the preparation of any case, even a relatively simple divorce, is collecting the “puzzle pieces”, the documents, the people, the communications, the events, the organizations, places and things that make up a case, and educating the client and negotiating a workable compromise where possible.

My approach is to empower my clients by providing them a method for gathering this information, for completing the Supreme Court mandated forms, and for listing the key elements, questions, and goals in their cases. I call it my “Digging Down” approach. https://hunterlawfirm.net/2018-revised-digging-organizing-preparing-case/

I cannot understand, having been with a client from “day one” and having learned all the information the client has gathered at my direction, the benefit of handing over the case to another lawyer to learn all over again. The person most likely to achieve a settlement, from my experience, is the one who is prepared for “the fight” if one becomes necessary in spite of all efforts to the contrary.

I say all of this knowing that more than half of the family law attorneys in West Virginia don’t even accept the fundamental necessity of universal and mandatory mediation. How are they going to wrap their heads around this non-adversarial, collegial, collaborative, approach to divorce? It “ain’t going to happen.”, not until much training, thinking, and changing take place.

In summary, some “baby steps” in the direction of a new way to approach family justice in West Virginia is as follows:

1. Encourage innovative unbundling and Legal coaching.
2. Do not include limited purpose appearances, at least not at first.
3. Simply require and expect that the attorney who is providing unbundling services has the experience and the tools to provide to the client the essential guidance he or she needs and has a burning desire empower them to protect their interests.
4. Require lawyers to obtain training in family law mediation, by requiring mediation in most cases.
5. Require mediation in virtually every case unless settlement has been achieved.
6. Encourage mediators who work with both sides pro se to be pro-active and not afraid to draft usable agreements.
7. Never differentiate between “children’ issues”and “other issues”. All are family law issues,  and train law students and young lawyers that family law is not “scorched earth“ and adversarial.
8. Streamline and enforce discovery. Punish those who “hide the ball”.
9. Don’t be too quick to sing “Kumbayah” and wrap arms around each-others’ shoulders around the campfire. Half of my family law cases involve significant emotional and physical abuse. Litigants have learned to race to the magistrates’ offices to get their domestic violence petition, and most family law lawyers are trained in emotional combat. These habits will be hard to break, and certain cases will still require “hard ball”. Be open to collaboration and prepared to stand up to bullies.
10. Explore expanded roles for paralegals and legal assistants.
11. Finally, on the subject of “structured negotiation”, I encountered one of the major challenges to such an approach in a recent case. it was a perfect case for early mediation. The litigants knew one another, the dispute included legitimate concerns by both sides, there were solutions available to benefit both sides, and we suggested an early mediation with an excellent mediator, a couple of qualified experts, visiting the scene of the dispute, inspecting it together, then traveling to the mediator’s office to work out the collaborative solutions.

My 70-year-old opponent said, “Burt, that’s the dumbest thing I’ve ever heard!“, or words to that effect. He had no inclination to educate or convince his clients that this approach might work. They rejected my proposal out of hand and left us no alternative but to sue his clients. At the scheduling conference, he informed the Court, “This looks to be a little pretty good case for mediation Judge.“ Sigh. Old, adversarial “attitudes are not easy to change.

With something like 70% of family court litigants coming to court unrepresented, and with our country reeling from “accelerating change”, change will come regardless of these attitudes. The question is can well-intentioned, thoughtful, and intelligent lawyers and judges and legislators help guide these changes in a positive direction?

I think we can and intend to keep trying. I recommend we revise the family court mediation rules, issue simple, concise, innovative rules on unbundling, collaborative family law, revised and simplify discovery in family cases, and make “Preventive Law” a large priority. That will be a good start.

This post was written by Burton Hunter