Can you threaten litigation in the collaborative process?

Threaten litigation in collaborative processIn the collaborative process, parties are attempting to resolve their divorce or family law matter outside of court in an amicable manner. Parties enlist collaborative lawyers and professionals to assist them.

In traditional negotiations, if parties are not making progress on settlement negotiations, one or both parties may threaten litigation if a settlement is not reached. Often, just the use of the word “litigation” or “court” can be designed to get the other party off an unreasonable position or back to the bargaining table.

A question some have is whether this same tactic can be employed in the collaborative process if settlement negotiations stall? The answer to that question is “no.”

Part of engaging in the collaborative process is not even talking about “litigation” or “court.” Those words are effectively taboo as part of any participation agreement. Instead, parties are to put their full efforts into resolving their case outside of court without the use of inflammatory rhetoric that could be viewed as strong arm techniques.

Thus, if parties reach an impasse, a better approach is to focus on the interests of the parties versus the positions. By focusing on interests, parties can often get past their positions on particular topics and back on what is really the issue.

Utilization of the collaborative professionals can also help. Instead of using language that figuratively results in a party banging their fist in the table, a divorce coach, for example, might be able to communicate interests in a therapeutic manner versus one that is adversarial.

It might also mean utilization of the financial neutral or custody professional to obtain more information to help the parties come to a creative resolution. Creative resolutions are often at the heart of the collaborative process.

In the end, in the collaborative process, the language and words used all need to be in the spirit of compromise and settlement. This is opposite of court proceedings where parties can attempt to gain leverage through the use of fiery rhetoric.

Practically speaking, if both parties cannot agree to speak constructively, and not threaten each other with litigation or contested proceedings, the collaborative process cannot and will not work. For this reason, both parties have to agree to speak diplomatically in collaborative sessions and not inflame through rhetorical, initimidation techniques.

If you are interested in a collaborative divorce, Stange Law Firm, PC can help. You can reach us at 855-805-0595.

Author: Kirk C. Stange, Esq.

Kirk Stange is a Founding Partner at Stange Law Firm, PC.

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