Practical Insights from an Empirical Study of Cooperative Lawyers in Wisconsin
65 Pages Posted: 3 Jun 2008
This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.
DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining joint expert opinions before obtaining individual expert opinions, (5) obtaining expert input before requesting a custody study or appointment of a guardian ad litem, and (5) good-faith negotiation sessions, including four-way sessions where appropriate, to reach fair compromises based on valid information.
The study describes how Cooperative Practice differs from traditional litigation-oriented process as well as Collaborative process. DCI members report that Cooperative Practice provides greater predictability and confidence than negotiation in litigation. Unlike Collaborative Practice, in Cooperative Practice, there is no "disqualification agreement" and thus Cooperative lawyers are not disqualified from representing clients in litigation if needed. Although Cooperative lawyers use many of the same procedures as in Collaborative Practice, they report using them selectively which they believe generally produces good outcomes as efficiently as possible.
The article offers recommendations for lawyers who want to incorporate Cooperative Practice into their "ADR toolbox," as well as for Cooperative and Collaborative Practitioners and ADR teachers and policymakers.
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