it | EN

We can’t bomb
the town we live in
Because afterwards
we’ll be the ones
Walking through
the wreckage we have caused.

Facing conflict mean embarking on a journey, often not recognizing that’s what it is. Before setting off, however, it would only be wise to know where one’s headed, to choose the right means of travel and an expert guide to lead the way forward.

In family conflicts, these choices are going to be the foundation stones for ourselves and our children’s happiness. Conversely, poor choices are bound to cause damage and long-lasting unhappiness for all.

No single vehicle is always and universally superior, though some are wholly inadequate to reach the desired destination and carry pitfalls and greater risks. Others are a detour that prevent reaching the desired destinations. It might also be that others have already chosen the carrier and the destination. In this case, one can hope to change the route along the way, once on board. Not before.

Do you wish to travel by land,
sea or air?

Metaphorically, our three main travel choices are by land, choosing positional bargaining, by sea, opting for interest-based negotiation, or by air, selecting collaborative negotiation.
In over thirty-five years of legal practice I have acquired an in-depth working knowledge of all three, and clear insight into the strengths and weaknesses of each.
At this point, I can say that collaborative negotiation has the best structure to reach an agreement in the interests of all, though its fit must be assessed case by case.

A key moment in the client attorney relationship is the choice of the process option, which is why I have been dedicating more and more time to it. This is when every potential client is carefully guided to choose the most appropriate approach.

It takes two to choose as each case and story is unique. I bring my competence and expertise to the table as the potential client does the details of their own situation. Together we decide on the path to take.

Positional negotiation

Those who opt for this procedure harbour no doubt that one side is completely right and the other completely wrong. They rely on the law and hand over the responsibility of the conflict resolution to the lawyers, failing which the decision is left up to the judge.

The potential outcome in the above scenario, is usually an agreement, that the attorneys, bearing in mind what each believes a judge would have decided, reach after making rounds of mutual concessions until the initial gap between the two starting positions is reduced substantially.

With positional bargaining each side wants what’s best for him or her alone. In the event that fails, the conflict resolution must play out in the courtroom, often resulting in some type of loss for all. Now, both sides, usually enraged, are likely to lose sight of their own well-being and pursue a strategy of maximizing harm to the other. All of this renders the vehicle of positional bargaining slow and emotionally draining, suitable to go down the most travelled road, and far from a tailored solution.

Interest-based negotiation

Those who select interest-based negotiation consider that resolving the conflict takes precedence over deciding who is right and wrong, and that a successful outcome is more likely if each side weighs the interests of the other. The result is a win-win, not just for the parties, but also for others involved, including children.

In interest-based negotiation one doesn’t split the difference between the opposing positions. Rather, one uncovers the underlying interests of each party to reach an agreement that satisfies both sides.

Those who choose this type of negotiation, do so above all because it not only increases the likelihood of obtaining the best outcome for themselves, but also minimizes the possibility that something valuable will be lost at sea with no beneficiary.

Interest-based negotiation is a far-reaching vehicle accessible to many, and even when they don’t share the same mindset, the tiller heads towards a solution, not a one-sided victory over the other.

The collaborative negotiation

Some trust interest-based negotiation to the extent that they wish take it a step further, by creating a collaborative container in which they multiply the likelihood of applying it with a positive outcome.

Those willing to collaborate are fully aware that the well-being of one is co-dependent on the well-being of the other. The safety of the collaborative container comes from the commitment of both parties who sign a Participation Agreement at the onset regarding their personal participation, acting in good faith, candidly sharing all relevant information, and respecting its privacy.

Each side must be assisted by their own attorney and mutually choose neutral professionals: the coach, the financial expert and/or a child specialist, depending on the needs of each case.

All the professionals must be trained in Collaborative Practice. Their shared goal is to facilitate the negotiation and to reach a settlement. They sign a Disqualification Agreement and in the event that the negotiation fails the professionals aren’t permitted to be involved in subsequent litigation.

All this makes Collaborative Practice a powerful and fast-moving vehicle headed towards a satisfying and tailored agreement that meets the needs of all, as long as everyone respects the commitments and abides by principles.