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Negotiated Settlement / Cooperative Divorce

Most family law cases end with a negotiated settlement, where the parties reach an agreement on some or all of the issues of their case. A negotiated settlement may be the result of mediation, a process where a neutral mediator assists the parties and their attorneys in bridging their differences so that they can reach a settlement. Negotiated settlements may also be reached through the direct negotiations of the parties’ attorneys. The negotiated settlement is memorialized in a formal written Settlement Agreement that is executed by both parties.

Negotiated settlements are often reached after a Petition has been filed and some litigation has occurred. However, parties sometimes decide that they want their attorneys to negotiate a settlement from the outset of their case, without any court involvement. This is commonly called a Cooperative Divorce. In a Cooperative Divorce, both parties provide full and fair disclosure of relevant information to each other without the need for the formal and adversarial discovery process that occurs with litigation. Joint experts typically play an important role in a Cooperative Divorce process. In complex financial cases, the parties will typically agree to the use of a joint financial expert to analyze the financial issues in the case. Where the parties have minor children, Parenting Coordinators (experts in children and parenting) help parties reach agreements on parenting issues in a manner that is in the best interest of their children. These joint experts are critical to helping parties reach a negotiated settlement when the court is not involved.

Cooperative Divorce may sound similar to Collaborative Divorce, as both processes are intended to help parties reach settlement without court involvement. However, there are critical differences between the two. A Collaborative Divorce is a structured process where both sides agree upon the rules for conduct and the steps to be taken, and the process is oriented towards a settlement that achieves both parties’ shared goals. By contrast, a Cooperative Divorce process is typically quite unstructured, the parties have little to no control over each other’s conduct, and the parties negotiate based on positions rather than shared goals. In the Cooperative Divorce process, either party can initiate litigation and involve the court at any time without consequence. In a Collaborative Divorce, if the parties cannot agree upon a settlement and the process reaches an impasse, then both collaborative attorneys must withdraw and the parties must obtain new counsel to proceed with litigation. This substantial consequence for an impasse in a Collaborative Divorce case ensures that both parties and their attorneys are similarly invested in settlement, which is a primary reason for this method’s high success rate.