Winter 2019 Gavel Gavel Winter 2019 - Page 6

North Dakota Embraces Collaborative Negotiating By Mike Gjesdahl This past September, with the encouragement of Assistant Professor Tammy Oltz, the permission of Acting Dean Bradley Myers, and the gracious help of Assistant Dean Brad Parrish, the University of North Dakota (UND) School of Law hosted a collaborative practice basic training seminar. The Collaborative Law Institute of Minnesota (CLIM), with a team of seven trainers, provided the instruction. Most of the more than 30 attendees were family law practitioners, but the group also included a number of law students, as well as retired North Dakota Supreme Court Justice, the Hon. Mary Muehlen Maring. Born of Frustration. Collaborative negotiating, conceived in 1990, was the brainchild of Twin Cities family lawyer Stu Webb. Like many before him, and since, Webb was beaten down by the intense emotion and ferocity attendant to a litigation-centered divorce practice. In the traditional divorce model, of course, lawyers are out-front gladiators and clients accept the adversarial premise. Webb’s great, and elegantly simple, idea was to disconnect divorce negotiations from the litigation process. The process he conceived puts the parties in the front seat, their supportive lawyers in the back, and surrounds them with trained, neutral professionals. It replaces “you vs. me” with an “us vs. our problems” mentality. It discourages adversarial behaviors and rhetoric in favor of civility and mutual respect. It supposes interest-based negotiation help parties achieve better outcomes than a positional approach. The Collaborative Process. The collaborative practice draws heavily upon mediation principles and practices. Its standards require all its professionals complete both a 40-hour mediation training and a two-day collaborative basic training. Today, collaborative negotiating is possessed of these six features: 1. The parties sign a collaborative participation agreement describing the nature and scope of the dispute. 2. The parties voluntarily disclose all relevant information needed to understand and resolve the issues at hand. 3. The parties negotiate with civility, respect, and good faith. 4. The parties may engage a divorce coach, a child specialist, and/or a financial specialist to help them gather needed information and find agreement. 5. The parties may jointly engage other professionals, too (e.g., appraisers, accountants, and mental health professionals). 6. If either party sues the matter out, the lawyers and all other professionals’ involvement terminates. This central feature incentivizes parties to remain in the process and refrain from starting litigation. The Participants. In its fullest bloom, the collaborative process involves the parties and their lawyers, whose advocative zealousness is toned down while their educational and advisory impulses ramp up. It can also involve a divorce coach, usually a mental health provider, who takes the administrative reins and is largely responsible for keeping all participants’ emotional temperatures in a productive range. These five core participants conduct business at a common table in one another’s presence. When parties confront child-related issues, they may involve a child specialist, also a mental health provider. This specialist will meet, and can even assess, the parties and make the process “child informed” by interviewing children, too. For financial issues – child support, spousal support, estate distribution, and attorneys’ fees – the parties can involve a financial specialist, usually an accountant, financial planner, or certified divorce financial analyst. This specialist helps create realistic budgets, identify the extent and value of the estate, and broker an outcome that meets the parties’ needs. The parties typically meet the child specialist and financial specialist at the specialists’ offices, away from the common table, and without their attorneys. Mike Gjesdahl (UND ’85) practices family law exclusively and chairs the North Dakota Collaborative Divorce Group and SBAND’s Inquiry Committee SE. He is an experienced mediator, collaborative attorney, and family law arbitrator who practices from his Fargo office. He is licensed and practices in both North Dakota and Minnesota . 6 THE GAVEL