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Collaborative Negotiation is a non-litigation approach where two parties and each of their lawyers try to settle their dispute without involving a court. In fact, before the collaborative negotiating even begins, the parties sign an agreement promising not to involve the court. If either party violates that promise by starting a legal action, their collaborative attorneys are discharged.
Since collaborative negotiation is a non-litigation process, the parties do not begin by starting a legal action. Instead, they devote all of their time, energy, and resources to negotiating. The parties' first step is to sign an agreement promising: (1) they will not litigate; and (2) if they change their mind, their collaborative lawyers, and any other hired experts or professionals, will be discharged and prohibited from any further involvement.
The collaborative approach is non-adversarial. It removes the win/lose dynamic usually associated with litigation and reduces the related cost, anxiety, and hot emotions that arise when court battles pit one party against the other. Instead, the collaborative method joins the parties together and pits them against the issues they face in transitioning from a married to an unmarried family. It is a non-adversarial, problem-solving process.
Litigation is adversarial. It is defined by the “vs” between the parties’ names in every court-filed document. It focuses on winning and losing, and the end result often involves hurt feelings, damaged relationships, and sometimes outright hostility. Litigation is stressful, time-consuming, emotionally exhausting, and incredibly expensive. To the contrary, collaborative negotiation demands both parties and their lawyers treat each other with respect.
While litigation focuses more on a party’s wants and bottom-line positions, collaborative negotiating asks the participants to dig deeper and focus on the reasons for their positions. Understanding the “why” behind a party’s position helps both parties identify more creative solutions and can sometimes help both parties “win.”
If you leave the outcome of your family matter in a judge’s hands, he or she will apply the law. That means the law’s sense of what’s fair and right–not yours–will guide the outcome. Wouldn’t you rather control your own outcome? When you negotiate collaboratively, you and your sense of what’s right and fair shape the outcome. Your standard of fairness, and your understanding of what’s right for your family, will control, not the judge’s and not the laws.
Divorces are not just legal events. They are emotional, financial, relational, and familial events, too. That’s why the collaborative approach often involves other professionals. For example, mental health providers can help parties manage their emotional issues as the negotiating process unfolds. And when children are involved, those providers can address their thoughts, wishes, input, and developmental needs. Likewise, financial professionals can help the parties gather any financial documents, identify fair values, determine fair asset and debt distributions, and provide financial plans for the future. With their help, the process can be smarter, faster, kinder, and cheaper.
The collaborative negotiation method is a peaceful way to reach fair agreements and preserve relationships. It allows parties to reach individualized agreements, based on their, and their family’s, unique circumstances and needs. It frees them from the more negative aspects of traditional litigation and gives them the best chance to sustain healthy relations into the future.
Our legal team has decades of combined experience in all areas of family divorce. From litigation to collaborative divorce, our attorneys advocate for seamless transitions into new family dynamics with experienced legal counsel and assertive representation when you need it most. Get to know the faces of your divorce team:
Collaborative law is a dispute resolution process that allows divorcing couples to work with lawyers and other professionals to settle their disputes outside of the courtroom. Central tenets of the collaborative process include:
The collaborative process does not rely on court-imposed solutions. Instead, the parties work with a team of professionals to avoid the uncertain outcomes of court litigation. The end goal is to achieve a settlement that best meets the specific needs of both parties and their family as a whole.
Focusing on interest-based—rather than position-based—negotiating, the collaborative process offers a healthier and more effective forum for the resolution of a couple’s divorce issues.
Professionals involved in the collaborative process work together as a team instead of as adversaries. A collaborative team can be any combination of professionals the parties choose to work with to resolve their issues. The attorneys can help the clients decide which professionals are best suited to their needs. The professionals typically come from three disciplines: child psychology, mental health, and finance.
The collaborative process is almost invariably faster than the traditional divorce process. It can take well over a year to process a divorce on the traditional litigation path. You wait on your lawyer. You wait on your spouse’s lawyer. You wait on the Judge’s calendar and, ultimately, for their ruling. Collaborative divorces are more likely to go at your speed than others.
The parties’ promises and pledges to reach a resolution without the need for court intervention drastically reduce the threat of fees getting out of control. If your divorce goes to trial, between you and your spouse, there’s a good chance you’ll each spend $50,000 or more on your lawyers. On top of that, you may pay accountants, appraisers, psychologists, mediators, and other spendy experts, too.
Using the collaborative divorce process, the parties maintain far more control over the money they spend processing their case. Instead of both parties’ hiring their own appraisers and experts, they will typically share the expense of common appraisers and experts.
In summary:
Collaborative divorce is one in which the divorcing couple and their respective attorneys agree to dissolve the marriage and resolve conflicts by using cooperative techniques rather than an adversarial approach. In fact, all parties and their lawyers sign an agreement to keep the proceedings confidential and not seek litigation; in other words, the case will not go to court no matter what.
The attorneys in a collaborative divorce are specially trained in negotiation and managing conflict. In this case, lawyers act more as “chauffeurs” helping to get you to your destination safely.
Mediation is another form of alternative dispute resolution where a neutral third person–a mediator– helps the divorcing couple to work through the issues of their divorce and arrive at a mutually satisfactory settlement. The mediator, a professional who may or may not be an attorney, doesn’t take sides but acts as a facilitator as the couple decides the best way to resolve thorny issues, such as child custody or spousal support.
It takes two willing participants for a collaborative divorce to work. If your spouse is reluctant, mediation and negotiations may be fruitless. Collaborative divorce is not just for couples who agree on most issues, but for those who are determined to get through the divorce process as amicably as possible. That said, the collaborative process is not right for everyone. Parties who make good candidates for the collaborative approach usually share these common goals:
Collaborative divorce can provide benefits to children that are often unavailable if parents choose a more adversarial approach. There is no question that divorces can be difficult on children and can have long-lasting impacts well into adulthood. The Collaborative process can promote a healthier family transition. Family relationships can be reshaped instead of destroyed.
By signing the collaborative agreement at the forefront of their divorce, parties mutually agree to:
The defining characteristic of collaborative divorce is that the parties and attorneys all agree not to go to court. Your final agreement is filed in court, but neither you nor your attorneys will need to appear in court. No paperwork is served or filed with the court until you have completed your final agreement, so there are no scheduling conferences, court appearances, or hearings.
However, if you are unable to reach a settlement and want to take the litigation route instead, you will have to start the process from the beginning—including finding a new lawyer. Collaborative divorce lawyers will not represent their collaboration clients in subsequent litigation proceedings.
Either contact Gjesdahl Law or visit the North Dakota Collaborative Divorce Group website to find a collaborative professional in North Dakota and/or northwestern Minnesota.
Collaborative Negotiation is a non-litigation approach where two parties and each of their lawyers try to settle their dispute without involving a court.
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