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					   C ollaborative
  The R eview
 Summer, 2004                                                                                    Vo l u m e 6, I s s u e 2

Journal of The International Academy of Collaborative Professionals

                           NEGOTIATION AND THE ATTORNEY
                           IN THE COLLABORATIVE PROCESS
                                                                 by Sherri Goren Slovin JD, Cincinnati, Ohio

        As Collaborative Family Law (CFL) matures and moves beyond discussions of paradigm shifts,
collaborative protocols and choreography, lawyers grapple with their role in the negotiation of the
collaborative case. Too often, lawyers engaged in the collaborative process complain that beneath the
veneer of collaboration, they revert to familiar, positional bargaining. What is the advocacy role of the
collaborative lawyer? Why should a client choose a lawyer who will engage in collaborative advocacy?
What value does the client receive in the collaborative process from the lawyer’s role? Although mental
health professionals and financial planners often play an important role in CFL cases, this article focuses
solely on the lawyer’s role in the CFL case.

    What is the Lawyer’s Role in the CFL Case?                                                               I NSIDE:
                                                                            Negotiation and the Attorney in the
         One of the basic principles of CFL is the acceptance of a shared
                                                                            Collaborative Process                                1
                                                                            By Sherri Goren Solvin, JD
negotiation choreography and the use of collaborative “protocols.” The      Engaging the Financial Professional
                                                                            By Caithy Daigle CFP ,CDP, CDS                       8
choreography includes an initial conference that focuses on the pro-        and George Richardson, JD
cesses available to end a marriage, a second client conference that         Report From England
                                                                            By James Pirrie
focuses on client interests, consultation by counsel to share negotiation
                                                                            Book Reviews:
hot spots and agenda items, and structured four-way meetings. These         Divorce Without Disaster/Collaborative Family Law   14
                                                                            By Pauline Tesler, JD
meetings are used to gather and understand information and create
                                                                            Collaborative Review Index                          16
options for a negotiated outcome. The negotiation process is marked         Dear Collaborator
by attention to constructive communication and effective problem-solv-      By Pauline Tesler, JD
ing.                                                                        Collaboration in Action                             22
                                                                            By Marion Korn, JD
         Interest-based problem solving is at the core of CFL negotia-
                                                                            IACP Public Education Committee
tion. The concepts articulated in Getting to Yes1 have been expanded        By Ron Ousky, JD and Peggy Thompson                 27
to create the basic structure of a collaborative law case. The template     Top Ten Ways to Market Your Practice
                                                                            By Liz Ferris, Marketing Consultant
focuses the participants on understanding the interests of both parties,
gathering all of the information necessary to make good decisions in a      Group Directory                                     30
straightforward manner, understanding the nuances of the information        From the Collaborative Corner
                                                                            By Stu Webb, JD                                     35
                                                    Continued on page 2
                                                     THE COLLABORATIVE REVIEW

  IACP BOARD                                          Negotiation and the Attorney                             Cont’d from page 1

  OF DIRECTORS                                        gathered, generating options for settlement, evaluating the consequences
                                                      of those options, and reaching a settlement based upon the articulated
             Norma Trusch, JD, Texas
                      President                       interests of the parties. The collaborative law negotiation template pro-
          Susan Hansen, JD, Wisconsin                 vides predictability for clients and counsel.
                                                               In practice, the dynamics of negotiation are far more complex
           Pauline Tesler, JD, California
        Past President, Co-Editor, Review             than a template. It is in the option-generating /negotiation stage that
          Rita Pollak, JD, Massachusetts              lawyers have the most difficulty in moving from positional bargaining. In
                                                      order to understand the difficulty, one must examine the lawyer’s role in
       Robert Bordett, CFP, CDFA, Georgia
               Treasurer/Comptroller                  the entire collaborative choreography.
         Jennifer Jackson, JD, California
          Webmaster; Co-Editor, Review
                                                      A. The Initial Office Conference
 Deborah Brakeley, M Ed, RCC, British Columbia
   Vicki Carpel-Miller, BSN, MS, CMFT, Arizona                 The lawyer’s role is modeled from the inception of the case. A
          The Hon. Ross Foote, Louisiana              client often begins the initial consultation by articulating a desire to “know
 Susan Gamache, R. Psych., AAMFT, British Columbia
                                                      his rights.” For example, he may question the amount of his obligation
             John McElwee, JD, Ohio
      Janis M. Pritchard, LLB, RFM, Alberta           for child and spousal support and what will happen to his pension. He
             Chip Rose, JD, California                may state positions such as “I must have 50/50 parenting time with my
           carlMichaelrossi, JD, Illinois
                                                      children.” Lawyers, by training and practice, often respond to these
            Donald R. Royall, JD, Texas
         Linda Seinturier, JD, California             questions and positions solely from a “rights-based” approach. That is,
        Peggy Thompson, PhD, California               the application of the law to a given set of facts. Lawyers are often most
   ADVISORY BOARD                                     comfortable detailing specific outcomes, and exhibiting to the new client
                                                      a mastery of the nuances of the law and its application.
            Hon. Roderic Duncan (Ret)
                Gary Friedman, JD                              The collaborative lawyer acknowledges the client’s questions
                 Larry Hance, JD                      about “his rights,” and indicates that the questions will be answered.
              Hon. Donna J. Hitchens
                                                      First, information is shared with the client about process options to
               Janet Johnston, PhD
                  Hon. Anne Kass                      terminate a marriage. The client is advised that the process (mediation,
                    Steven Keeva                      collaborative law, traditional lawyer negotiation or litigation) he selects
    Julie MacFarlane, BA, LLM, PhD, Ontario
                                                      for the termination of his marriage requires consideration as it will have
             Independent Researcher
                John McShane, JD                      a direct bearing on the outcome. When the collaborative lawyer ex-
             Prof. Robert Mnookin, JD                 plains process options to the client, the lawyer encourages the client to
           A. Rodney Nurse, PhD, ABPP
                                                      think about his interests, understand the various process choices, and
                 Melvin Rubin, JD
             Donald T. Saposnek, PhD                  examine the consequences of each choice. In this way, the client begins
                     Tony Seton                       to operate within the negotiation template itself, and develops an appre-
                 Harry Tindall, JD
                                                      ciation for the role of the process and its significant impact on parenting
                Stuart G. Webb, JD
             Prof. David B. Wexler, JD                and property outcomes and post-divorce communication. The client
          Carol Ann Wilson, CFP, CDFA                 begins to understand that he will be a major part of the process and will
              Prof. Bruce Winick, JD
                                                      be directly engaged in option-generating and decision-making.
      HOW TO                                                   Following the process discussion, the lawyer focuses on the
                                                      client’s substantive questions. Information about substantive outcome
    CONTACT IACP                                      ranges is shared by counsel, but HOW it is shared is critical. The client
       c/o Paula Jackson, Administrator
         145 Wildhorse Valley Drive
                                                      has already learned that there are a number of process choices. This
              Novato, CA 94947                        allows for more flexibility in the presentation of information about rights-
            e mail:                    based outcomes. The rights-based outcome, often called “the court
                                                      model” is presented as only one very narrow set of options. It is
Page 2                                                                                                             Summer 2004
                                          THE COLLABORATIVE REVIEW

one “measurement” for an agreement. The collabora-            meet the security needs of the children. To generate
tive process encourages couples to create options that        options, the client will have to listen to and appreciate
are more tailored to the needs and interests of their family. her spouse’s interests. She will become aware that
Simply put, the law does not provide all, or in fact, many    this also means that her spouse will listen to and ap-
of the answers for families. For example, in Ohio, the        preciate her interests. Questions like “what is really
obligation for child support terminates at the later of       important to you?” and “how will you be able to mea-
reaching the age of 18 or high school graduation. For         sure a successful outcome for yourself” move the cli-
many families with teenagers, managing college costs          ent from firmly held “positions.” This attorney role
presents real questions for which the court model pro-        often does not fit within client expectations. A client
vides no answers.                                             must feel comfortable that the reason her counsel fo-
         The initial conference sets the tone and begins      cuses on her interest is to insure that the best possible
to frame the lawyer’s role in the process. The client         agreement for her is reached, and the reason her coun-
begins to understand the lawyer’s role is not “answer         sel focuses on her spouse’s interests is to have the
giver”, but rather “information provider and negotiation      basis for what might be acceptable options that will
guide.” While lawyers often                                                                 meet her interests.
provide many of the options
generated during the process,           To generate options, the client                               C. The Attor-
there is sufficient “room” for                                                              ney / Attorney Meeting
the clients to provide options will have to listen to and appreci-                                    The attorney-to-
as well.                           ate her spouse’s interests. She will attorney meeting is an ex-
         A collaborative law-                                                               cellent opportunity to
yer who does not set this tone, become aware that this also means begin to preview client in-
and ignores this protocol does that her spouse will listen to and terests. It affords coun-
so at his own peril. A client                                                               sel the first opportunity to
who believes she is hiring a appreciate her interests.                                      begin to understand the
“white knight” who will “stand                                                              interests initially articu-
up to her spouse” or who believes that her case will be       lated by the other spouse. Because the negotiation
negotiated by lawyer posturing involving strong, extreme      has not yet been anchored by a mutual discussion
positions, will be sorely disappointed in her counsel as      of the client’s interests, counsel may fall back to
the collaborative process unfolds.                            positional bargaining. Allowing the process to un-
                                                              fold is critical to a successful collaborative process.
         B. Focusing on Interests                             This attorney conference provides an opportunity
         After a client has determined that the CFL model     to choreograph the initial four-way meeting. It is
meets her goals, it is critical to continue to focus on       critical to plan for a meeting that will “set the stage”
understanding and elaborating on interests. Sometime          for a successful process. Clients need to feel con-
prior to the attorney- to- attorney conference and the        fident that the lawyers will be able to deliver the
four- way meeting, the lawyer focuses the client on her       efficient, focused process that has been promised.
interests and helps her understand the difference be-         They will be unfamiliar with the role of the lawyer in
tween interests and positions. The client who says “I         the collaborative process and will often use the first
must retain the house for the children” begins to under-      meeting to gauge the whether the process will meet
stand that her interest is security for the children and      their goals. The attorney-to-attorney meeting pro-
retaining the house may be but one viable option. In          vides an opportunity to plan to insure that the meet-
order to reach agreement, there will need to be open-         ings meet client expectations.
ness to the possibility of other options that might also                                           Continued on page 4
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                                         THE COLLABORATIVE REVIEW

Negotiation and the Collaborative Attorney                                                       Continued from page 3

         D. The Negotiation                              without making the other party worse off.4 In the
         Focusing on interests at the beginning of the   context of collaborative negotiation, the name of the
collaborative four-way provides a comfortable an-        game is expanding the “pie.” A skillful negotiator
chor for parties. The use of good communication          moves simply between imaginative strategies to en-
around the discussion of interests sets the stage for    large the pie and conservative strategies to secure
the entire negotiation. While constantly looping back    an ample slice no matter what size the final pie turns
to interests is critical, negotiation often involves the out to be.5 The way to determine whether the slice
clash of interests and requires the management of        is the “right” size is to determine if it adequately meets
discrete tensions, including creating and distribut-     the client’s interests.
                                                2                  The client expects the lawyer to negotiate the
ing value and empathy and assertiveness. Some
negotiations, or parts of negotiations, lend themselves  best possible deal on his behalf. In a common (al-
to creating value or “expanding the pie”. Other ne-      beit stereotyped) scenario, for Husband, this may
gotiations or parts of negotiations are narrower and     mean the obligation to pay the lowest amount of
present purely distributive                                                             spousal support for the
negotiating options. If a ne-        While constantly looping                           fewest number of years.
gotiation is ONLY about the          back to interests is critical,                     Conversely, for Wife, this
division of a limited re-                                                               may mean receiving the
source, it can become                negotiation often involves                         highest amount of spousal
purely distributive. The             the clash of interests and re-                     support for the most num-
goal of the collaborative                                                               ber of years. In single is-
lawyer is to manage the dis-         quires the management of                           sue cases, for example a
tributive aspects and create         discrete tensions, including                       couple with no children,
value whenever possible.       3                                                        assets or liabilities, when
The goal is to recognize             creating and distributing                          negotiating spousal sup-
whether there is a way to            value and empathy and                              port, every dollar that Wife
“expand the pie” and when                                                               receives is a dollar that
an issue is solely distributive.     assertiveness.                                     Husband does not have.
         In positional nego-                                                            There may be minimal
tiation, there is concern that revealing interests cre-  value-creating opportunities, because there is noth-
ates vulnerability. A Wife might say, “If I share how    ing to trade off. Arguably, however, even within the
much I want to keep the house, won’t my husband          issue of spousal support, there are value-creating op-
exploit that information?” The power in the collabo-     portunities. For example: how much support and
rative negotiation is in the mutual revelation of inter- for how long, how or if support is modifiable,
ests which provides the context for generating cre-      what if any security should there be, what cir-
ative options                                            cumstances trigger its ending, taxability issues,
         Creating and Distributing Value                 the possibility of lump sum property in lieu of
          The collaborative lawyer’s role is to cre-     spousal support…. etc. : all of these are open for
ate value through problem solving negotiation.           discussion. Even without other tradeoffs, creative
Creating value means reaching a deal that, when          option- generating is a possibility.
compared to other possible outcomes, either makes                  In reality, most family law negotiations lend
both parties better off or makes one party better off    themselves to creating value because they involve mul-

Page 4                                                                                              Summer 2004
                                            THE COLLABORATIVE REVIEW
tiple issues. Spousal support is usually just one of many     sure his kids are all right” and having an obligation that
issues in the family law case. Thus, the negotiations         would be non-modifiable as he might make consider-
have significant value-creating potential.                    ably more money in the future (Different time/risk
           The lawyer’s role is to create value by ex-        preferences). These differences can generate value-
panding the discussion to brainstorm a multiplicity of        creating trades. Husband may be willing to provide
options beyond spousal support. With an expanded              more retirement assets on Wife’s side of the ledger in
approach, the client may pay more or accept less spousal      exchange for a shorter, fixed duration of spousal sup-
support than he or she originally anticipated, but may        port. Wife may believe that she will remarry and there-
be willing to do so in exchange for other considerations.     fore will never collect on the long-term spousal sup-
The role of the lawyer in positional negotiation is to        port. Husband may doubt Wife will remarry and be-
“have his client pay the minimum amount of spousal            lieves that an agreement to pay long-term support will
support”. The role of the collaborative lawyer is to ex-      mean paying support for a longer term that Husband
pand the range of options to insure that the amount           wants. Husband may be willing to pay “up front” based
paid is acceptable in the context of the entire settle-       upon his analysis of the future and his risk analysis.
ment. The positional bargainer enters the negotiation                  Another source of value is to examine non-
with a fixed concept of both the size of the pie and the      competitive similarities. In some instances, parties may
exact size of the slice his client must have. The col-        have similar interests that do not compete. One person’s
laborative negotiator is aware of the parameters for          gain is not the other’s loss.8 For example, Mother and
measuring whether the size of the slice is acceptable to      Father may both want their children to graduate from
the client, but is not rooted in one particular size.         parochial schools. Mother, who does not have finan-
          Collaborative negotiators can employ creative       cial resources, may be willing to work Bingo to make a
strategies to enlarge the pie by focusing on the sources      time contribution to insure the children attend paro-
of value in a negotiation; for example, trading on dif-       chial schools. Father may be willing to provide a dis-
ferences between the parties.6 Differences may in-            proportionate amount of tuition payments. These op-
clude different resources, relative values, forecasts, risk   tions both spring from the parents’ shared interest in
preferences and time preferences. 7                           their children’s education. The parties need the oppor-
          As an example of different forecasts in a spou-     tunity to fully explore their interests in order to find in-
sal support scenario, Wife may express concerns about         terests that don’t compete.
her long-term financial well being. She may be con-                    Sometimes, more than one good or service can
cerned that when she returns to the job market, she           be produced using the same basic resources, thus re-
will not be able to save for retirement. Husband may          ducing the cost of each. For example, an option for a
be less concerned about his long-term retirement pros-        difficult daycare situation might be created when par-
pects as he is aware that his company provides excel-         ents who share weekly time share a daycare provider
lent retirement benefits and is confident it will continue    to avoid each paying a full-time provider.
to do so. In the option-generating portion of the case,                The role of effective, collaborative communi-
the collaborative negotiators might help Husband brain-       cation cannot be underestimated. The skilled negotia-
storm issues around uneven division of retirement funds.      tor must assert his own needs, goals, and point of view
Husband may be willing to trade retirement dollars for        and at the same time demonstrate a level of under-
another issue that would meet his interests.                  standing of the other side’s needs, goals, and point of
          Other interests must also be explored. Wife         view. Assertion without empathy risks escalating con-
may be very concerned about her immediate financial           flict, while empathy without assertion risks jeopardiz-
security. She may want the security of a fixed amount         ing one’s legitimate concerns.9 The power in the col-
of spousal support each year so she can depend on it,         laborative process is in providing an environment to
even if Husband makes more money (Different risk              question, discuss, and brainstorm interests and options
preferences). Husband may be interested in “making            constructively.
                                                                                                        Continued on page 6
Summer 2004                                                                                                       Page 5
                                       THE COLLABORATIVE REVIEW

 Negotiation and the Collaborative Attorney                                          Continued from page 5

         Distributive Negotiation                      sible to create a ZOPA. The BATNA, even if it
                                                       is dramatically different, creates parameters for
         Often, lawyers assume distributive nego-      the discussion.
tiations, when in fact there are interest-based op-      Lawyers generally work to enhance and im-
tions available. However, some negotiations are        prove a client’s BATNA; for example, provid-
purely distributive. That is, there is simply little   ing a detailed trace of separate assets to enhance
or no pie to expand. In these negotiations there       a client’s “share” of the marital estate. In the
is more emphasis on each party’s Best Alterna-         collaborative process, the enhancement of
tive to a Negotiated Settlement (BATNA).10 That        BATNA properly falls within information gath-
is, if a client walks away from the table, what        ering. It is appropriate in the context of gather-
outcome can he or she anticipate?                      ing information to provide a detailed separate
         In the Domestic Relations context, most       asset trace. It may be appropriate, in the col-
often the BATNA is a lawyer’s assessment of            laborative context, to have available case law on
“what will happen in court.” In the collaborative      point as part of the discussion.
negotiation context, it is most effective to talk in         In the event impasse is reached, the law-
terms of ranges of outcomes. This allows a cli-        yers can again exhibit creativity in resolving the
ent to focus on a Zone of Possible Agreement           impasse. For example, in one collaborative case,
(ZOPA) to create parameters for a settlement.          the participants found themselves at an impasse
         In the limited example of spousal support,    around spousal support because the lawyers had
Husband’s attorney may assess the husband’s            vastly different BATNA analyses. As a result,
BATNA as a payment of $1000 per month for              they were unable to create a Zone of Possible
five years. Wife’s attorney may assess Wife’s          Agreement. The lawyers creatively broke the
BATNA as a payment of $1900 per month for              impasse by providing the spousal support stat-
seven years. Husband might be willing to settle        utes to their clients to illustrate the discretionary
for $1200 for five and a half years (his reserva-      nature of the law. Counsel jointly met with two
tion value). Wife might be willing to settle for       Magistrates to obtain their informal outcome
$1700 for six and a half years (her reservation        analysis, and then met with an experienced mem-
value). A Zone of Possible Agreement (ZOPA)            ber of the collaborative practice group for his
is created. 11 Disclosure of information may as-       analysis of the facts. As a result, the clients and
sist in bridging the gap. Wife may know that she       lawyers were ultimately able to create a Zone of
will complete a degree in four years and will be       Possible Agreement and resolution was reached.
financially secure in five and may be willing to
lower the time amount in exchange for higher ini-
tial payments. Husband may be interested in the
                                                       H BATNA                                  W BATNA
shortest possible duration. This is where the ex-
                                                       1000 1100 1200 1300 1400 1500 1600 1700 1800 1900
change of interest and information is critical.
With no exchange of information, the only real                     5     5.5    6    6.5    7
discussion is “splitting the baby” or resorting to
testing each BATNA.                                        “ZONE OF POSSIBLE AGREEMENT”
    Collaborative lawyers must discuss BATNA
without overt posturing and puffing. Without a
frank discussion of BATNA, it is virtually impos-
Page 6                                                                                      Summer 2004
                                             THE COLLABORATIVE REVIEW

             What is the Value of                                       Sherri Goren Slovin has practiced
             Collaborative Negotiation?                         family law for twenty-five years, twenty-
         The perceived “solvability” of a conflict has a        two of them as a solo-practitioner. In 1987
direct bearing on the outcome. The more disputants              Sherri began a mediation practice to com-
believe a conflict is solvable, the more likely they are to     pliment her legal practice and from 1987-
aim for a full resolution of their differences12 . One of       2000 associated with the Cincinnati Cen-
the major advantages to CFL is the power created by             ter for Dispute Resolution, a non-profit me-
two lawyers who understand and engage in the col-               diation and public disputes center. In ad-
laborative negotiation process. The Participation               dition to family and civil mediation, Sherri
Agreement is a written commitment by the parties to             began providing negotiation training as
focus on problem solving. This written commitment               part of her work with the Center, and after
completely changes the nature and tenor of the nego-            attending the Program on Advanced Nego-
tiations. The negotiation is streamlined with a shared          tiation at the Harvard Summer Program,
collaborative choreography. Lawyers enter the nego-             became interested in the application of in-
tiation with certain shared expectations. The expecta-          terest-based negotiation in the family law
tion that all relevant information will be disclosed and        setting. Collaborative Family Law provided
that the negotiation will be conducted in good faith cre-       a logical next step for Sherri. She has been
ates a comfort level that allows for the give and take of       engaged in the practice of Collaborative
                                                                Family Law since 1997 and is the immedi-
         The challenge of the collaborative model lies in
                                                                ate past chair of the Collaborative Family
the tension between advocacy and effective collabo-
                                                                Lawyers of Cincinnati. The Cincinnati or-
ration. The efficiency of the process and the space
                                                                ganization has over 60 participating law-
created for significant client actualization hold tremen-
                                                                yers who have completed hundreds of col-
dous promise for the future of family law. It is up to all
of us to safeguard and meet the promise.                        laborative cases.

          Notes                                                        Although Sherri’s practice is now
   Getting to Yes., Roger Fisher and William Ury.               primarily collaborative family law, she
   See generally, Beyond Winning, Negotiating to Create Value   continues to mediate and also to provide
in Deals and Disputes, Robert H Mnookin, Scott R. Peppet        litigation services to clients where litiga-
and Andrew S. Tulumello.                                        tion is unavoidable. Her peers have
   Mnookin p. 174.                                              repeatedly recognized Sherri by her inclu-
   Mnookin p 12.                                                sion in Best Lawyers in America and Ohio
   Mnookin, p. 9.                                               Superlawyers. Since 2001, Sherri has
   Mnookin p. 12.                                               provided introductory and advanced
    Mnookin p. 12.                                              workshops on Collaborative Family Law
   Mnookin p.16.                                                throughout the United States. She is
   Mnookin p. 10.                                               looking forward to providing a workshop
   Getting to Yes                                               for family lawyers in Auckland, New
   Mnookin p. 20.                                               Zealand in February 2005. An IACP
   B. Mayer Chapter 3 see “Thomas”.                             board member-elect, Sherri can be
                                                                reached at

Summer 2004                                                                                          Page 7

Description: Georgia Divorce Mediation Agreement Template document sample