“Adding Cooperative Practice to the ADR Toolkit, Part Five”– EngagingConflicts.com
This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three. Part Four]
Part Five: How Cooperative Negotiation Is Different From Litigation In Negotiation.
Since a Cooperative process does not include a disqualification clause as in Collaborative cases, some people wonder if Cooperative process is any different from negotiation in litigated cases.
Although many lawyers negotiate cooperatively at times, a Cooperative process can provide greater predictability and confidence than in litigation. DCI members say that a Cooperative process creates a legal culture where cooperation is the norm. Traditional litigation-oriented practice normally does not involve an explicit process agreement. In litigation, lawyers often are not sure about the other side’s intentions and each side may feel that it needs to take tough positions to protect themselves. This sometimes creates a cycle of adversarial behavior that is hard to break out of.
Although DCI members sometimes use litigation procedures (such as formal discovery or contested hearings) in Cooperative cases, these are used as the last resort and are generally intended to advance the Cooperative process. For example, one lawyer said that a party may need some “reality therapy” of hearing from a judge at a temporary order hearing and then get right back to negotiation for the permanent resolution. When contested hearings are needed, the Cooperative process can improve the quality of litigation. One lawyer said that in trials in a Cooperative cases, the process tends to be more cooperative than in traditional litigation-oriented cases.
For more information about my study of Cooperative Practice in Wisconsin, click here.
The next part describes how practitioners can add Cooperative Practice into the services they offer. Mediators may also be interested because they may be used in Cooperative cases.
John’s series will conclude next week with “How Practitioners Can Add Cooperative Practice Into The Services They Offer”.
