Adapted from “Negotiating a More Civil Divorce,” first published in the Negotiation newsletter.
In the United States, lawyers who recognize the benefits of collaborative negotiation are sometimes stymied by vengeful clients and ruthless opposing counsel. Many attorneys put up with a contentious settlement process in which litigation is a threat.
Yet some U.S. lawyers have begun to adopt new tools for helping their clients negotiate disputes, particularly those involving divorce and child custody, more civilly: collaborative law and cooperative law. A process that involves mutual-gains negotiation can be especially beneficial for divorcing parents, who have a strong shared interest in their children’s future. New research by professor John Lande of the University of Missouri School of Law reveals the value of these new approaches.
Collaborative law. In the early 1990s, the collaborative-law movement sprang up with the goal of giving disputants the best of both worlds: a lawyer’s advocacy and legal know-how combined with the problem-solving orientation of mediation.
Now common in many states, the process begins when each disputant hires a collaborative lawyer and signs a disqualification agreement stating that he will hire a different lawyer if the decision is made to take the case to court. The prospect of having to hire new lawyers is designed to commit disputants to the negotiation process. It also eliminates the conflict of interest faced by lawyers who could gain more financially from a long litigation process than from a quick settlement.
Disputants also agree in advance to disclose all information relevant to the case, to treat each other with respect, to jointly hire experts (such as psychologists in child-custody cases), and to address each other’s needs. In turn, their lawyers promise to serve as negotiators, not litigators, and to try to keep the process honest, respectful, and productive. Working together, the clients and their lawyers engage in a series of “four-way” meetings aimed at finding creative solutions that meet both parties’ interests.
Cooperative law. For many people, hiring new attorneys to litigate after a collaborative effort falls apart is financially unfeasible. Disputants may pour time and money into a failing collaborative negotiation simply because they feel they’ve invested too much to quit. In addition, some lawyers resist the idea of “abandoning” their clients if negotiation fails.
Cooperative law, which has taken hold in a small number of states, does away with the disqualification component of collaborative law—both parties reserve the right to litigate with the same counsel if the negotiation fails—but retains its other key features, including an emphasis on mutual-gains negotiation.
Beyond divorce? Lande proposes extending the collaborative and cooperative approaches beyond the family law arena. These processes could be tailored to virtually any dispute where civility and trust are possible, according to Lande, including probate, employment, medical, debt collection, and commercial practice. Whenever parties express willingness to rise above any anger or hurt feelings in search of a resolution that satisfies both sides, one of these new processes may be a wise choice.