However, many engaged couples don't hire collaboratively trained attorneys when negotiating a prenup because they haven't heard of collaborative law or they rely on a recommended lawyer without doing any research of their own. Doing a little research before hiring an attorney is critical because the worst mistake you can make when negotiating a prenup is to hire an attorney who only knows litigation. Litigation is an adversarial process that encourages people to withhold information unless directly requested. Litigation discourages discussions between the parties because everything you say can and will be used against you in court. In short, litigation hurts relationships.
Most litigation cases settle, so attorneys who know litigation also know how to negotiate, but if they have not taken collaborative law or mediation training it is unlikely they have the skills necessary for relationship-building negotiation. Negotiating a prenuptial or postnuptial agreement is a balance between representing the interests of your client while working towards a common goal: a healthy marriage. Litigation negotiation, in contrast, more often focuses on leverage and positions. In collaborative law, attorneys are trained to work as a team to accomplish the mutual and separate goals of the clients. Collaborative law training is, therefore, perfectly suited to the balance necessary for constructive prenup negotiations.
Mediation can also be a helpful forum for negotiating a prenup in an environment that is non-adversarial and encourages discussion. When creating a prenup or postnup it is critical that both parties be represented but that representation can take place during a mediation or a more traditional negotiation process. Either way, the training of the attorneys involved will be critical in determining how successful the negotiations are at finding a balance that fosters a healthy marital relationship. The alternative has the potential to doom a relationship from the start.
The Massachusetts Collaborative Law Council is hosting an upcoming training on February 12 in Woburn on creating prenuptial and partnership agreements using the collaborative law process: Prenups and Partnerships: Collaborating for Love and Money.
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