Why Collaborative Negotiations May Fail and How to Fix It

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  • April 26, 2017

1. Uncertain and undeclared goals: The collaborative path starts with each parent or partner stating in clear terms what they each want to accomplish together. They each declare their intention to be transparent in presenting their needs, wishes, and dreams. Obscured or unclear goals create doubt and suspicion. Railroading discussions and dismissing urgent problems requiring immediate attention causes discordance and division.

Remedy: Take the appropriate amount of time for each spouse to express what is important to them, for their future, and the children.  Facilitating an emotionally difficult step may be taken by the party’s family law lawyer or the jointly retained family professional.  The set of goals can then be grouped into corresponding legal issues and discussed by the spouses in the priority sequence they decide. Consensus and cooperation at each stage make the process more productive while building trust and confidence to cooperate in the issue resolution quickly to the mutual satisfaction of the partners.

2. Lack of transparency: Backroom discussions keep the pressing concerns off the table and away from resolution. Requisite disclosure is obfuscated with irrelevant information and misstatement of facts.

Remedy: Rebuilding trust is paramount. Difficult discussions about non-threatening conduct and openness need to take place. One way to expose attempts to divert energy back to collaborative form is to independently poll the clients as to what they need to move forward, including whether this is the right forum to resolve their needs.  A neutral facilitator or mediator may be introduced to assist to unlock the entrenchment and to evaluate whether each party holds an intention to continue to use the collaborative process can prove to be a valuable insight. Once the process is confirmed or denied by the spouses, the best process path can be discussed and steps to rehabilitate the foundation of trust can begin.

3. Sketchy financial disclosure: Complete financial disclosure should be forthcoming with an openness to explain difficult transactions and record keeping is the next step after goal setting. Refusal or failure to respond to a formal request for disclosure will only be demanded again, this time by a judge when a spouse transitions to the costlier court process. Duplication of time, energy, and legal fees for both sides don’t win any empathy from the children caught in the middle.

Remedy: Be forthright and disclose all financial transactions that apply to the issues at hand. Honesty is and always will be the best policy. Partial financial disclosure creates more work for all parties involved. Everyone’s time is valuable and any actions that detract from the efficiency of the process will not be warmly received.

4. Lack of communication controls: Communication guidelines are discussed and confirmed as agreeable up front in the collaborative process. Acceptance of the guidelines prepares a respectful safe environment for candid discussions to take place.  Without confirmation of and adherence to the application of these simple communication rules, bad habits and unresolved historical issues may come to the forefront, disrupting beneficial progress.

Remedy: Acknowledging that separation not only impacts family, but also the financial well-being and emotional health of those involved. The loss of a partnership, short-term and long financial stress, torn relationships and fear for what the future may bring can colour what may be a business decision into a maelstrom of highly-charged emotions. Explaining the impact of emotion on the ‘logical thinking brain’ offers a level of understanding as to why common sense can sometimes become sidelined. Restoring the calm can allow reverential communication to resume.

5. Lack of respect– One of the underlying principles of the collaborative path is respect introduced at the first confidential meeting with your trained lawyer. Promoting respect builds trust and openness.  Appropriate collaborative conduct is demonstrated by arriving on time to group meetings, appropriately timed transmission of communications and outright banning of aggressive divisive tactics. Spouses take note when inappropriate conduct is called out. It slows the process and costs time and money.

Remedy:  United enforcement of the communication guidelines ensures that each participant at the collaborative table acknowledges the value of a well-run meeting.  Each person is entitled to an unfettered opportunity to express themselves, whether it is an unanticipated viewpoint or expression of agreement. Diversity and creativity allow for a broader range of options from which the participants can craft their own viable custom domestic contract.

Lorisa Stein is an experienced senior family law lawyer based in downtown Toronto, Ontario. She has utilized the collaborative method to help families resolve their conflicts. To schedule a confidential consultation with Lorisa, fill out a request here or call her direct line at (416) 596-8081 or email her at lorisa@lorisastein.com.

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