Learning from ‘Cooperative’ Negotiators in Wisconsin

Abstract

This article summarizes the findings of a study of members of a “Cooperative Law” association, the Divorce Cooperation Institute (DCI). The study involved in-depth telephone interviews and several surveys of DCI members. Cooperative Law is a recent innovation involving an agreement to structure a negotiation process to produce early and efficient settlements. Typically, Cooperative negotiation agreements involve a commitment to negotiate in good faith, provide relevant information, and use joint experts when appropriate. Cooperative Practice offers parties the opportunity to have lawyers represent them in an interest-based negotiation process while retaining ready access to litigation if needed, without losing their lawyers as in Collaborative Practice. DCI uses this process only in family cases but it is readily applicable in a wide range of civil cases, including family, employment, probate, construction, commercial, and tort cases, especially since it does not involve the Collaborative disqualification agreement. 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. Parties may prefer a Cooperative process instead of a Collaborative process when they (1) trust the other side to some extent but are uncertain about the other side’s intent to cooperate, (2) do not want to lose their lawyer’s services in litigation if needed, (3) cannot afford to pay a substantial retainer to hire new litigation counsel in event of an impasse, (4) fear that the other side would exploit the disqualification agreement to gain an advantage, and/or (5) fear getting stuck in a negotiation process because of financial or other pressures. Cooperative Law is not appropriate in all cases but it offers a valuable option for lawyers and parties to consider.

Keywords: Wisconsin, cooperative, negotiators, divorce