A Collaborative Law Success Story, Part 3: The Process

A Collaborative Law Success Story is a four-part video series describing a successful resolution of a divorce between John and Diane through the Collaborative Law process. Below is Part 3 and the transcript for Part 3:

The Collaborative Law process is a step by step process to success. It includes a designed protocol built on years of experience in determining what works best in settling cases. While the protocol differs depending on the type of dispute there are some core elements that are key to the Collaborative Law process.

Positional negotiation starts at an endpoint and uses a tug of war technique to force parties to compromise. The Collaborative Law process is built on interest based negotiation which starts by gathering information and evaluating options before taking positions. This is a proven path to resolution of conflict.

The parties start by agreeing to a framework for problem solving and then gathering the information they need to make decisions. Unlike litigation or positional negotiatioon where each party holds their cards close to the vest, Collaborative Law recognizes that shared solutions require an equal playing field.

Parties agree to share all relevant information, their goals, and their suggested solutions. For example, in John’s business dispute, John didn’t want to admit to the contractor how much he needed their next job. However, once the contractor knew that John wanted to preserve an ongoing business relationship they were more open to solving the dispute.

This type of dialogue, which would rarely occur in the context of litigation, is vital to helping the parties develop a quick and mutually satisfactory solution. After interests and information have been gathered and shared, the parties brainstorm settlement options. This step often leads to solutions that neither party would’ve guessed at the beginning or sometimes allows the parties to see a prior discussion in a new light.

Once the parties choose the resolution that best fits their needs the lawyers assist in preparing any necessary legal documentation and in the case of a divorce present the settlement to the court. In order for this process to work effectively there are a few critical components of Collaborative Law: disqualification, active and voluntary participation of clients, and transparency.

The professionals agree to be disqualified from other roles they might typically take if settlement discussions fail. Lawyers are disqualified from representing a client in litigation arising from this dispute. Financial neutrals are disqualified from future financial relationships with the individuals. Coaches are disqualified from acting as therapists or parenting coordinators for the parties after the process.

In Collaborative Law the parties actively participate in all substantive negotiations. This means that there are no discussions between the lawyers regarding settlement of the issues in this case unless the parties are present. This may be less efficient in some instances but
in the long run it is building the parties up to an ability to communicate and advocate for themselves effectively after the process is over.

Collaborative Law is voluntary. While this means that parties can leave at anytime, it also encourages open and honest cooperation, because without fair dealings, why would the other side continue to voluntarily participate. Finally the Collaborative Law process is also transparent. The neutrals and the attorneys share all relevant information with each other.

If a client asks one of the attorneys to hide relevant information and the client cannot be convinced to share it voluntarily then the attorney must withdraw from the process. This supports cooperation and problem solving instead of positional negotiation. These core principals are included in a written contract called a process agreement which the parties sign at the commencement of the case.

All of these elements were critical for John and Diane to feel safe in their negotiation. If Diana had believed that her statements regarding her boyfriend would be used in future litigation she might not have acknowledged her new relationship or its impact on John and the children.

Given how much distrust they started with they might never have reached a settlement if they were not transparent. If John and Diana had separate experts and tried to negotiate without the coach John is convinced Diane would have thought he was hiding something and they would never have settled.

All of the requirements for the Collaborative Law process played a part in helping them reach a settlement.