Collaboration v. Negotiation

Posted on Sep 13, 2021 by Katie Carter

I’ll admit it: before I had witnessed any part of the collaborative divorce process, I assumed it was ultimately a lot like negotiation.

You see, negotiation is the word we use to describe the process by which parties negotiate the terms of a separation agreement. Usually, when we say it, we mean with lawyers – but that’s not necessarily the case. Plenty of people (actually, probably far, far too many people) try to do this own their own, too – often with disastrous consequences.

In a negotiation, we go back and forth. Usually, one party comes up with an initial proposal (which is their best case scenario). It’s a bit of an attempt to see whether the other side will just sign, but usually its meant as a jumping off point for negotiations to start.

The negotiations go back and forth – by email, by letter, or even in settlement conferences – as the parties work towards an agreement.

We often tell our clients that the only limitations in a negotiation are what the parties agree to. We tell them to feel free to be creative.

But, I think, that’s the real difference between negotiation and collaboration.

You see, in collaboration, there really is freedom to be creative. We really do encourage our clients to come up with solutions designed to meet the needs of their family.

It may sound like six of one and a half dozen of another, but it’s not. The big difference probably comes from the fact that, in a collaborative divorce, the parties sign an agreement where they agree NOT to go to court. That’s the magic piece, I think.

If collaboration fails and they DO go to court – which is unusual – they have a waiting period and they have to retain new counsel. Between those things, and the fact that they’ve already invested in the collaborative process significantly by that point, it’s pretty rare that the collaborative process fails. It does happen, but it’s unusual.

In a negotiation, we still know that court is an option. A negotiated separation agreement case is still adversarial. There’s no agreement to share information freely. There’s no dedicated team of professionals there to help advise the parties. There’s no divorce coaches there to help make sure that the parties’ mental health is in order, either, so sometimes things can run off the rails for reasons totally unrelated to the actual division of the assets and liabilities.

At the end of the day, knowing that court is an option – and knowing, in many cases, what the judge would order, means that our negotiated separation agreements are NOT all that creative.

Let’s take, for example, division of the retirement accounts. In a negotiated separation agreement case, I pretty much see one of two possible scenarios. Either the marital share of all of the accounts are divided between the parties, or the parties agree that each will keep their own retirement accounts.

It’s not creative. It’s not special. It’s not designed to meet the needs of anyone in any particular way, but we know that, ultimately, if we go to court, the judge will give each party their marital share. So, if someone suggests something different, the other side can hold out for the marital share option, knowing that if the case is litigated at some point in the future, that’s what the judge would do anyway.

Ultimately, knowing how the judge would rule on the division of a particular asset is a limitation, because it means that the side who wants it that way (or, at least, wants it more than they want the alternative, creative solution) can just wait until the other party either agrees to it or litigates the issue. It’s really not likely that you’d litigate many issues, because they’re well settled enough that your attorney would tell you that it’s a waste of money.

Judges can’t be too creative. There are a million different reasons – an already overcrowded docket (which means minimal time to invest into each particular case), hearings set for a predetermined amount of time (meaning that we have to prioritize the evidence, witnesses, and testimony we bring in), the threat of appeal (no judge wants his case reversed and remanded back to him), arguments suggesting that the judge behaved unethically or favored one side over the other… There are so many different potential problems, that judges end up applying a set of rules across the board. Hey, it’s fair, at least!

There are a few issues – like spousal support and custody and visitation – where it’s not specific or clear, and those issues can sometimes lead to litigation. But there are also a lot of pretty well settled areas of law. Knowing that you can go to court, and knowing what the judge would likely do, is enough to make a lot of people just accept an agreement because, well, at least its done and there’s no need to waste a bunch of money on court.

Collaborative divorce, on the other hand, really isn’t like that.

In fact, the attorneys don’t speak up that much at all, except to guide the discussion. We certainly don’t let the threat of court hang over all our discussions, either, because, as far as we’re concerned, court isn’t even a possibility.

In collaborative divorce, it doesn’t matter what the judge would do. There’s no judge. All that matters is coming up with a solution that suits the family.
There is so much ‘one size fits all’ in divorce litigation that its really refreshing to actually feel like there’s room for coming up with a custom solution. More than anything else, collaborative divorce makes that a very real possibility.

It’s also considerably less expensive than litigation, too, in many cases. It’s hard to compare costs from one case to the next because there are so many variables, but in general it’s safe to say that staying out of court is the cheaper option.

Negotiation is cheaper than litigation, too, in many cases, but it also doesn’t give you the option to be quite as customizable as a collaborative divorce.
For more information about separation agreements, negotiation, collaboration, our free books or upcoming seminars, give us a call at 757-425-5200.