by Beth Aarons, JD, MSW, Jody Comins, MSW, and Justin Kelsey, JD
On April 27, 2018, we presented to the Massachusetts Collaborative Law Council’s annual forum at a workshop entitled: Using Collaborative Values to Shift Parties from Litigation to Cooperation. The theme of this workshop was to take collaborative values and discuss how we can use these tools in all of our cases: negotiated, litigated, or mediated.
This is not a unique idea. David Hoffman has spoken and written about “cooperative negotiation” and Lainey Feingold has written and practiced “structured negotiation,” both of which share many overlapping tools that are used in the official Collaborative Law Process, with slight exceptions. In fact, we would argue that these negotiation processes have more in common with Collaborative Law than they do with litigation or more traditional attorney negotiation.
This leads us to the question that we brainstormed with our audience:
What are the Values used in a Collaborative case?
The list below is what we came up with together, and which we believe can be used in any case where both sides agree to commit themselves to these values. Using even one of these tools can improve the negotiation process by reducing conflict and finding solutions more efficiently.
The Collaborative Value Checklist:
- Interest-Based Negotiation
- Identifying Goals
- Seeking Solutions that are Mutually Advantageous
- Active Client Participation in Joint Problem Solving
- Hiring Neutral Experts
- Transparency of Neutrals
- Transparency of Information: Sharing Relevant Information
- Structured Decision-Making Process
- Disqualification Clause: Focused Representation as Settlement Counsel Only
In the Collaborative Law community, we often discuss the difference between a big “C” Collaborative case and a small “c” collaborative case:
- A big “C” Collaborative case is used as shorthand to describe a case where all of these values are agreed to in a process agreement at the beginning of the case,
- A small “c” collaborative case describes a case where we agree generally to work together towards settlement outside of court, but often don’t define exactly what “collaborate” means.
The problem with this shorthand is it encourages us to think of cases that aren’t committed to all of these values as similar, but not in a way that is clearly defined, enforceable, or universally understood.
Instead of relying on vague assurances, we encourage you to be specific when agreeing to a small “c” collaborative process. Have a conversation to determine which of these values you are committing to, and why. Use this checklist if it helps. It is important to recognize that each of these values brings something helpful to a case.
You may also want to consider bringing a collaboratively trained coach into each case to help facilitate this conversation. As professionals trained in particular skill sets, we may not have all the knowledge necessary to facilitate every conversation effectively or to work with our clients on all of their communication or financial issues. Collaborating with neutral professionals and being thoughtful about each of these values is in the best interest of our clients.
This methodical approach to defining the parameters of every case will lead to better informed clients, better settlement processes, and greater collaboration. If we try, we can make every case a collaborative one.
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