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Posted on July 16th 2018 in Family Law

Collaboration thrives when litigation off the table

Originally published in Law Times, July 24, 2015.
Written by Deborah Graham and Nicola Savin

Collaborative lawyers have removed a significant tool from their negotiation toolbox — they do not go to court for their collaborative clients. Without the option of litigation or the threat of litigation, collaborative lawyers are focused on settlement every step of the way. Thus they have developed a set of tools, protocols and skills that increase the likelihood of a timely, durable and cost-effective settlement. Many of these tools and skills are helpful in non-collaborative files, whether traditional negotiation or litigation.

Collaborative lawyers focus on interest-based negotiation. Each lawyer works with his or her client to “mine for interests.” The lawyer asks questions to move beneath positions and understand the goals, concerns, fears and values of their client. The lawyer also helps the client to prioritize their interests. Exploring interests often yields possible solutions or restructuring of proposals and counter-proposals that increase the likelihood of settlement. Through exploring shared and divergent interests, we create ways in which the parenting or financial “pie” can be expanded. It’s always easier to divide a pie that just got a bit bigger.

Collaborative lawyers don’t write a lot of letters. Some don’t write any. There is no need to “have a paper trail” since none of the letters can be used in any subsequent process without both parties’ consent. As a result, collaborative lawyers pick up the phone and call each other. A letter often serves to inflame or polarize. A phone call tends to build understanding and possibilities. The next time you are about to write a letter to the other lawyer on the phone, try calling them. You might be surprised at how much progress is made.
Collaborative practice encourages the joint retention of other collaboratively trained professionals such as mental health professionals, parenting mediators, financial planners and valuators. Consider a more integrated approach than the usual referral model for parenting mediators, financial planners and CBVs. For example, if a business valuation is needed, consider jointly retaining one to prepare schedules instead of a report and have the CBV come to a four-way meeting to walk everyone through their analysis.

Because collaborative process is a client-centered process, collaborative lawyers spend time preparing their clients to participate in settlement meetings. Preparation includes coaching clients in saying what they need to say in a way that increases the likelihood of being heard by their spouse and helping the client to be ready to listen to what their spouse has to say. Preparation also means some negotiation coaching and helping clients clarify what is truly important to them.

Prior to a settlement meeting, collaborative lawyers have a call with counsel or any other professional who will be participating in the meeting to identify any “hot button” issues and to choreograph how that issue will be dealt with in the meeting. Preparation with the collaborative team and the clients is key to ensuring a successful settlement meeting. You wouldn’t show up for a court appearance without preparing properly; why would you expect a settlement meeting to be successful if you just show up with no preparation beforehand?

Settlement meetings are the heart and soul of collaborative practice, and we have learned that agendas and progress notes are critical to their success. When the lawyers create an agenda for a meeting and distribute it to their clients prior to the meeting, it helps clarify the issues, sets the pace of the meeting and ensures that everyone is ready to talk about the agenda items before they arrive at the meeting.

At the end of every collaborative meeting, the lawyers co-operate in creating progress notes — a shared account of what was discussed, what was agreed upon, and what “homework” needs to be done by whom and when. The progress notes are then sent to the clients. This is invaluable in creating a shared record of the progress made in a settlement meeting so there are no misunderstandings or misrepresentations. Consider scheduling a settlement meeting with an agenda two weeks prior to your next court or mediation date. You will be able to make much better use of your court /mediation date having narrowed the issues in your settlement meeting — and who knows, you may even settle the case.

Pacing of a file can be used to create momentum and reduce the likelihood of negotiation fatigue. Consider scheduling a couple of counsel calls and four-way settlement meetings over a period of a few months. It will ensure the file stays top of mind and doesn’t get shelved until the next court date.

For more negotiation tips, tools, protocols and strategies, consider getting collaboratively trained. See your Ontario Collaborative Law Federation website for info on upcoming trainings.