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 .
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THE GAVEL