Comparing Traditional Negotiation & Collaborative Approach
The conversation has turned to cohabiting together or at the other end, to separating. How do you decide which way of processing all the family legal issues will work best for both of you? Alone or with your lawyer present? Do you want to participate or remain in the shadows?
The bottom line:
- Both processes are forms of family law negotiation: both require you to give instructions to your lawyer based on your lawyer explaining to you your rights and obligations in the context of your family‘s circumstances. You will always make the final decision once being fully informed.
- The negotiation process begins when your retained legal counsel sends a letter introducing himself /herself to your spouse directly or to his / her counsel if one has already been retained. The collaborative process begins with a phone call between the lawyers once each spouse has retained a collaboratively trained lawyer.
- A collaboratively trained lawyer has taken a week-long training course and will be committed to ongoing upgrading skills development. A traditional negotiation lawyer may have taken some continuing education courses as there is no universal mandatory program of study required.
- Entrenchment in your position costs money and no one – not even the children or your business – wins. Flexibility opens doors, understanding, and good options.
- The focus is a mutually beneficial durable settlement. If it isn’t mutually beneficial it runs a high risk of being set aside when one partner of spouse decides to contest the terms.
- Careful what you wish for. Respect that there are a lot of questions and decisions to make before your comprehensive picture can be presented as a resolution. Changing your mind midway may lead to mistrust and duplication of effort as well as an increase in anticipated costs.
- Written correspondence creates a record of each spouse’s position: letters between counsel in traditional negotiation and progress notes provided for decisions and next steps confirmed at a group settlement meeting.
- Be wary of the prepared agreement being present to you from your spouse or partner before complete financial disclosure is exchanged between you. In the collaborative approach, disclosure is done face to face with full discussion by the spouses with the involvement of counsel. In the traditional negotiation process, it may be done in a four-way meeting or by sending materials by courier to your lawyer’s office. There is rarely an opportunity to ask questions directly to the owner of the documents.
- Traditional negotiation is ‘position-based’: state your position and hold to it. The collaborative approach is ‘interest-based’ and asks spouses to openly share with each other their needs, wants and desires for the future.
- Settlement discussions require by their very nature that all discussions are confidential. However, in the collaborative approach lawyers cannot be compelled as witnesses to those discussions as a term of the participation agreement signed by the spouses and their legal representatives in the event the matter becomes contested. This is not the case in the negotiation process.
What’s in common?
- Both are private processes and take place in your lawyers’ offices or through his or her office. They can be used for the negotiation of a cohabitation agreement, marriage contract or separation agreement between partners and spouses.
- Meeting the full financial disclosure legal requirement may include formal valuations of the business and property, documenting foreign ownership held by a non–spouse or investigating a beneficial interest acquired after marriage.
- Identifying and considering tax issues are often an important consideration in both the traditional negotiation and collaborative law processes.
- Independent legal advice for each spouse ensures that each understands the nature and consequences of the terms of the contract.
- If no agreement is reached, the matter may go to mediation, arbitration, or court. Today, many family law lawyers focus on settlement focused approaches and choose not to litigate matters in court. There are other family law lawyers who only do litigation and will not accept clients who wish to negotiate a balanced resolution.