Dispute Settlement Counsel

Another difference between Collaborative Practice (“CP”) and litigation is the way information is viewed and used.  Because CP is not adversarial or positional, lawyers do not have to worry about hiding or minimizing the importance of harmful information or highlighting or over-emphasizing favorable information as they would in litigation.  Remember, we are not in a winner vs. loser model in Collaborative Practice; we are in an interest-based or principled negotiation model (think Roger Fischer’s “Getting to Yes”), which will hopefully produce a win-win (think Stephen Covey’s “Seven Habits of Highly Effective People”) outcome. The more we all know about what we’re trying to do, the better it is.

Both sides must have a strong position to “qualify” as good candidates for CP; that is an important pre-requisite. Parties with weak cases and no solid legal or factual arguments should not be considering CP; it’s not a good fit. Once it has been established that the positions or arguments of both sides have some merit, the positional considerations are put on the back-burners and the focus on resolving the dispute takes over.  From that point, information is used for satisfying interests and developing options for resolution, not to fight and beat the other side.  Our goals and purposes have changed.  So the way we look at and think about information needs to change also.

Given that the more the relevant information is openly exchanged and shared, the easier it will be to develop the best options for resolution possible, there is really no reason to hide information or give some pieces of information more attention than necessary.  Collaborative Practice is all about counsel and parties working together to solve problems.  There is no incentive to hide information; no advantage to not divulging it.  That would only either slow down the process – something neither party wants – or hinder the parties and lawyers from coming up with the best resolution possible.

Let’s not overlook one essential word that is part of the CP information exchange process. We’re only dealing with relevant information. If it’s not relevant to the interests of the parties or the developing of options for resolution, it doesn’t need to be shared.  Remember, this is not win-lose.  It does neither party any good in a CP case to tear down the other side. None.

None of the parties in CP cases are interested in the inefficient exercise of sifting through boxes, files and emails of largely unnecessary information that has no bearing on the parties’ interests or developing good options for resolutions.  On the contrary, parties seek to avoid the heavy financial costs and taxing of human resources of prolonged discovery.  There’s no need to examine every email and every bit of a party’s back-up tapes.  There’s only a need to honestly and transparently share any information requested that is necessary and relevant.

Information is sort of like nuclear power.  It is inherently neither good nor bad.  It all depends on how you use it.  In CP, relevant information is used to develop options and solve problems, so it’s good.