Without the option or threat of litigation, collaborative lawyers have developed best practices that increase the likelihood of timely, durable and cost-effective settlements for clients, Toronto family lawyer Nicola Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP, writes in Lawyers Weekly.
The article, co-authored by Deborah Graham, discusses the skills associated with collaborative law and why they may be helpful in non-collaborative files as well.
“Collaborative lawyers focus on interest-based negotiation. Each lawyer works with his or her client to ‘mine for interests.’ The lawyer asks questions to move beneath positions and understand the goals, concerns, fears and values of their client. The lawyer also helps the client to prioritize their interests,” says the article. “Exploring interests often yields possible solutions or restructuring of proposals and counter-proposals that increase the likelihood of settlement.”
Collaborative practice encourages the joint retention of other collaboratively trained professionals such as mental health professionals, parenting mediators, financial planners and valuators, and integrated approaches are highly valued, says the article.
Client preparation is also key, write Savin and Graham, as are settlement meetings, where agendas and progress notes are “critical.”
“At the end of every collaborative meeting, the lawyers co-operate in creating progress notes — a shared account of what was discussed, what was agreed upon, and what ‘homework’ needs to be done by whom and when,” says the article.
“The progress notes are then sent to the clients. This is invaluable in creating a shared record of the progress made in a settlement meeting so there are no misunderstandings or misrepresentations.”
Savin and Graham also note that the likelihood of negotiation fatigue can be minimized by scheduling counsel calls and four-way settlement meetings over a period of a few months.
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