We have all heard these phrases:
Take no prisoners. Nice guys finish last. Win at all costs. These phrases have been applied to sporting events, wartime, political contests and courtroom litigation. The motivational message may be helpful in those settings, but is that approach helpful in making decisions about your future or your children’s futures?
The adversarial model is in full display in the courtroom. Each side of the litigation battle is fighting to win. The non-lawyers are called litigants, demonstrating that they are competitors in the legal battle. The adversarial model works fairly well when the litigants do not have to work together in the future. However, what if the day after the courtroom contest, the litigants have to go back to raising children together? How well will they work together to raise children after a courtroom battle that casts one as the winner and the other as the loser?
The collaborative approach to dispute resolution allows the participants to guide the process and work together toward a resolution that addresses the needs of both. Without the threat of litigation hanging over the negotiation, the participants are more willing to be candid. The lawyers and their clients in a collaborative setting are all working toward the common goal of resolution.
So who wins in a collaborative case?
There is no winner, but that also means there is no loser. Both participants are free to express their needs and desires. They can then work together to respond to the needs of each in a way that allows them to retain some degree of control while recognizing that compromise is necessary to a collaborative resolution.
Actually, I should correct myself. There are winners in the collaborative setting. If yours is a divorce case involving custody, the children are the winners. Children are incredibly perceptive. When their parents work out their dispute collaboratively, the children learn that it is possible to disagree respectfully. The children also understand that they are more important than their parents’ desire to “defeat” each other. The collaborative model allows parents to resolve their disputes without ruining their co-parenting relationship.
