Collaborative Roadmap or Settlement Offer?
The leader of a collaborative practice group wrote to me the other day, complaining that her membership suffered from a pervasive and insidious problem. She asked for my advice. When she elaborated, she explained that the lawyers in her group have difficulty making “the paradigm shift”:
These guys approach the collaborative case as if it was litigation, making settlement offers out of process and so forth. They aren’t practicing the collaborative process as it was taught to us. And we have collaborative cases that are failing because of it.
Because I was reading her e-mail in the car, I mentioned this problem to my husband, who was driving and who knows nothing about collaborative divorce work, outside of what I have shared with him; he is a commercial real estate appraiser. Strangely enough, though, it was he who put his finger on the core of the problem, asking me why it was not part of the collaborative process to make settlement offers.
Of course, that’s not true, but his question crystallized the crux of the problem for me. The collaborative problem solving roadmap includes a settlement process protocol that is specific to collaboration. It is comprised of five discrete steps that should be taken in the order listed below:
1) identifying and prioritizing the spouses’ individual goals and interests;
2) gathering information;
3) brainstorming options;
4) evaluating options; and
5) choosing options.
Each spouse must complete each step. The team won’t move on to the next step until both spouses have finished the prior step. We participate in this settlement protocol because the clients’ ongoing work in and contributions to the process build their engagement in it, as well as their consensus in the end results that they reach. Consider what happens in each step.
Step 1: Clients identify and prioritize their interests and concerns.
Understanding the difference between a position and a goal or interest is an important step in effective problem-solving. Focusing on positions, rather than on interests, limits settlement options, and may result in an agreement that fails to satisfy the clients’ actual interests.
In collaboration, the professional team works to focus the two people on identifying his or her goals. Once identified, they can prioritize their most important goals, which then allows them to comfortably consider compromising on their less important objectives.
In addition, clear identification of big-picture goals at the outset helps them see that they share many common interests and concerns, which will play an important role in achieving the best possible outcome for their family.
Trying to negotiate settlement before clients understand the difference between positions and interests, and before all of their interests have been fully explored is a mistake.
Step 2: Clients gather and exchange information.
Clients must exchange financial and other necessary material so that, when they come to the table to negotiate, they are fully aware and informed for those discussions. Trying to negotiate settlement before both parties feel in control of the facts is doomed to failure.
Step 3: Clients brainstorm options.
Brainstorming provides an open environment in which the entire team participates. The team listens actively when brainstorming, but the process will have a relaxed and casual feel. The participants will feel that their thoughts and opinions are being heard.
Brainstorming should be fast-paced so that participants don’t have time to self-evaluate or to arrive at preconceptions about options. No idea is a bad idea. Each person at the table is encouraged to think outside the box; no one criticizes anyone else’s ideas. Even off-the-wall suggestions are acceptable because they may generate other, more practical options.
The team avoids rewarding ideas because members may focus on those suggestions and close their minds to alternatives. Judgment and analysis at this stage limits creativity. By exploring as many proposals as possible, participants create the best opportunity of reaching a settlement that addresses their most important interests.
Thus, trying to negotiate settlement before exploring all possible options is another error; although it may result in an agreement, it may not be the best possible resolution.
Step 4: Clients evaluate options.
After thorough brainstorming, the team members will weigh, tweak, eliminate, and assess the various options. Perhaps they will discuss the ideas of BATNA (the best alternative to a negotiated agreement) and WATNA (the worst alternative to a negotiated agreement). At this point, the clients will evaluate how well their interests can be met by the proposed solutions. The team will discuss the cost and benefit of each proposal to each spouse. The team will ask each client to step into the other’s shoes and analyze whether s/he would be happy with the proposal if s/he was the other spouse.
Step 5: Clients select best available options.
Now the clients decide. No one forces a decision. It is their process, and, ultimately, they are the ones who will live with the decisions that they make.
In traditional litigation, a settlement offer is a term used to describe an offer to compromise a lawsuit. The phrase describes a communication from one party to the other suggesting a settlement – an agreement to fully and finally resolve the outstanding issue or dispute. When a lawyer makes such a settlement offer, the process described above has not taken place. Some of the steps may have occurred, either in part or in full, but he typically makes his offer in a far different format, by calling or mailing the other side and laying out the settlement he and his client envision. The other side then either accepts it, rejects it, or makes a counter offer.
This type of dynamic is completely different from the communications and collective bargaining process that take place in the collaborative team environment, as you can readily see.
One of the two cases I’ve had that failed to resolve in the collaborative process was a situation in which my client insisted on making settlement offers out of context. He made them directly to his wife, without my knowing, which was a problem in itself; he was a trial lawyer and he thought he knew best. But trading settlement offers is not the same process as the problem-solving roadmap. As a result, his wife opted out of the collaboration.
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About this week’s authors: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
