A Family Law Practice Devoted
to Alternative Dispute Resolution

Cooperative Negotiation

by Michael Tobriner

What Is Cooperative Negotiation?

In cooperative negotiation both parties are represented by separate attorneys. Both parties and both attorneys agree informally not to engage in litigation and to attempt in good faith to resolve all issues through reasoned negotiation.

What Are the Main Features of Cooperative Negotiation?

  • Attorneys take the lead in negotiating resolution. Each attorney works with his or her own client to develop settlement proposals.
  • Negotiations can take place in several settings: four-way sessions with both parties and both attorneys; attorneys meetings without parties present; or exchanges of written proposals and counter-proposals.
  • Parties, through their attorneys, produce and share information and documents informally and in good faith.
  • If the case requires the assistance of experts, the attorneys and parties usually agree on joint, neutral experts.
  • If impasse occurs, the attorneys and parties often agree to engage a mediator or private judge.
  • The attorneys generally know and trust each other.
  • The parties want an out-of-court settlement but do not feel comfortable working directly with each other.

What Are the Requirements for Successful
Cooperative Negotiation?

  • The attorneys must possess a very high level of trust between themselves.
  • The parties must possess at least a reasonable level of trust between themselves and must be able to respect the other party and his or her interests and rights.
  • The parties must be willing to produce information and documents in complete good faith, without concealment or manipulation of any sort.
  • The parties must be willing to accept a fair, reasonable settlement that includes some compromises.

What Are the Advantages of Cooperative Negotiation?

  • The parties can avoid litigation, with its attendant costs, risks of unfair and uncontrolled results, exhaustion, alienation, frustration, and bitterness.
  • The parties can retain control of decision-making, rather than handing that power to a judge, who, no matter what his or her ability, is a stranger to the case.
  • The process permits the parties to achieve a fair, reasoned settlement
  • The process allows the parties to preserve a decent, civilized, and (where there are children) working relationship with the other party.