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Why We Collaborate (Part 2 of 5)

By Ty Supancic, Esquire

The Collaborative Paradigm

In traditional litigation, each side in court must take a position, usually in opposition to the other side. In theory, the “trier of fact” is wiser than his litigants, and only after an intelligent and thoughtful review each side’s position, can the judge administer “justice”. We all know that true justice is rarely the result. Judges are never as familiar as the parties are when it comes to the intricacies of their circumstances. Sometimes the judge may not even understand the underlying law. The resulting “justice” is sometimes really just a partially informed third party’s opinion.

In Collaboration, solutions are not dictated to the parties, but arrived at by the parties themselves. The parties are not made to take positions, but are asked about goals and outcomes. Negotiating from the outcome rather than the position allows for creative problem solving. Oftentimes creative solutions present themselves where no solution seemed possible. Rather than the litigation model’s “winner take all” result, Collaboration can result in a true win/win solution.

Furthermore, since the parties play an active role in the problem solving process, they are usually much more satisfied with the results even if they might not have been otherwise. The parties are able to “own” the results since they controlled the process.

In order to be most effective, collaboration should really be an end unto itself. Many controversies and conflicts are ongoing issues with ever-changing and evolving facts and situations (e.g. child custody, support, or disability). As long as parties remain in relationship (father/mother, employer/employee) the potential for controversy and conflict is never ending.

Ongoing controversies cannot be efficiently addressed by occasional saber rattling letters and threats of litigation. These only polarize the parties and may serve as a kind of “dare” to litigation. On the other hand, a continuing and constant application of Collaborative methods can prevent controversies from becoming conflicts. In our experience, Collaboration has proven to be the most cost effective and least destructive method of long term dispute prevention and resolution.

Part 1 – Why We Collaborate and Collaborative Problem Solving
Part 2 – The Collaborative Paradigm
Part 3 – Changing Our Paradigm
Part 4 – Leading By Example
Part 5 – God is in the Details


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