Collaborative Processes for Dispute Resolution
Collaborative processes are approaches of resolving disputes in which the parties and their lawyers agree to work toward resolution without going to court and without litigation. Each process begins with this commitment by the parties and their lawyers not to litigate. Instead, they use streamlined and efficient methods which, from the outset, intentionally focus on settlement by design. The parties and lawyers accomplish this through a series of “four-way” or collaborative meetings, in which all the substantive negotiations take place. The meetings address at least five key tasks, each building on the previous one:
1. Discussion and agreement upon the rules of the collaborative process used;
2. Voluntary and open sharing and exchange of all relevant information;
3. Identifying interests of the parties;
4. Developing options for resolution, using neutral experts when appropriate;
5. Determining the terms of the resolution and reducing them to a settlement agreement.
Collaborative processes are confidential, and allow the parties and their lawyers to concentrate their efforts on satisfying their interests as well as those of the other party. The focus of the four-way collaborative meetings, the pace of the process, the developing of options, the use of neutral experts, the decisions as to how to best achieve resolution, and the final determination of the terms of settlement are all in the control of the clients. Lawyers partner with their clients, advise their clients, advocate on their behalf and help to facilitate the process of resolution and settlement.
The collaborative process is different from litigation or arbitration
The strategic approach of a collaborative process is different from litigation or arbitration, both of which are adversarial, position-based processes designed to work toward a trial or a hearing. In arbitration and litigation, the parties relinquish their decision-making into the hands of a third party – either an arbitrator, a judge or a jury. Then, each party, represented by its attorney, embarks on a positional, adversarial process designed to convince the third party decision-maker in a trial or hearing that the party is right, and consequently the other party is wrong. The determination of an arbitrator is binding. While the determinations of judges and juries are appealable, they are ultimately decided by a higher appellate court.
Both the parties and their lawyers in collaborative processes commit to an approach of settlement negotiation from the outset, as their stated intention. As such, they are freed from focusing on preparing for a trial. They treat the voluntary exchange of all relevant information as useful and valuable to all parties. Experts in collaborative processes are neutral and independent resources for the benefit and use of all parties and for the process as a whole. The re-alignment of the parties’ intention to focusing on settlement, the different view and use of information, the liberating of the experts to truly be neutral, independent providers of expert information, and the sovereignty of the clients all serve to diffuse the hostile and adversarial nature of the dispute and create an environment where good resolutions are inevitable.
Collaborative processes will almost always be faster and more cost-effective than litigation or arbitration
Because they are clearly focused on resolution, collaborative processes will almost always be faster, more cost-effective and streamlined vehicles than the more cumbersome litigation or arbitration. Because they focus on the interests of parties rather than their positions, they also help to preserve important relationships between parties in the dispute and prevent the emotional damage and drain on resources that comes with the adversarial, zero-sum game approaches of litigation and arbitration. And because they are not restricted by a rigid civil procedure, they offer an environment for more creativity and latitude in developing options that are tailored to the parties and their needs.
Collaborative processes are conflict resolution advocacy at its very best. At all times, clients are represented by counsel who both advocate for their clients’ rights as well as negotiate to reach a settlement that satisfies their clients’ interests. Clients and lawyers operate in a process that allows them to be creative in their development of options and tailor solutions that best fits the clients’ circumstances and needs.