Collaborative Negotiation: A
Different Way to Divorce
Collaborative Negotiation is an innovative approach to the divorce
process. In the Collaborative Practice model, the parties commit at
the outset to resolve the case through negotiation rather than litigation.
They each hire an attorney and both the attorneys agree not to be litigation
counsel. Unlike mediation, the parties electing collaborative law are
actively represented by their attorneys in each step of the negotiation
process.
Collaborative Law is a conflict resolution process guided by the principle
of a non-adversarial approach to problem solving. Going to court is
not an option in the Collaborative approach. Eliminating the threat
of litigation eliminates the animosity and mistrust that is often a
part of the traditional litigation model.
The ground rules for the Collaborative process are:
- A
pledge by both the parties and attorneys not to go to Court.
- Agreement
by the parties to provide full, honest and voluntary disclosure
of all information.
- Use
of neutral experts, jointly retained by the spouses.
- Informal
4-way meetings;
- Withdrawal
of counsel if the clients elect litigation or if either party
impedes the collaborative process.
Collaborative Law provides the client with control of the process
and the outcome of their divorce. Both parties are allowed
to speak and
be heard in a safe environment. The widest ranges of settlement
options are considered because the process is interest based.
The parties work
face to face with their attorneys in an open and honest exchange
of information.
 At any time, either party may terminate the collaborative process
and resort to the traditional litigation approach. However, a major
disincentive
to litigate is built into the process by the provision that counsel
will withdraw and not represent the party if that party wants to
pursue litigation.
Advantages: Collaborative law is usually less expensive
than litigation.
The use of jointly selected experts and advisors along with the
open and
cooperative sharing of information greatly reduces legal fees and
expenses. Since the parties have made a commitment not to litigate,
the parties
and the attorneys devote all of their efforts to a negotiated settlement
that is acceptable to both parties. The empowering aspect of Collaborative
Law is that the attorneys assist the clients to find the solutions
that best suit the needs of the parties. The attorneys provide
expert guidance in the law, but the clients know best what will
work for them.
The Collaborative Process
After each party selects independent collaborative counsel, the
process moves forward using four-way meetings. Generally, the process
comprises
four stages. In the first stage, all necessary information is gathered.
In the second stage, the parties and their attorneys analyze the
information, choices, options, and possible outcomes. If one party
has all the information
and records, it is that party’s responsibility to get all of
the information to the other party. In the third stage, the parties
and their attorneys begin negotiating a settlement of all issues. Once
all of the options have been considered and the parties are ready to
work on a settlement, the parties develop settlement proposals which
reflect each other’s interests. In the fourth stage, a settlement
is negotiated and a formal agreement is prepared which will become
a Judgment of Dissolution.
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