Strategic cooperation stands out as one of the most exciting developments in negotiation and conflict resolution. A growing body of scientific research shows how and why cooperation works: cooperating not only feels good, but also holds the potential to resolve even the most intractable conflicts. Collaborative law leverages the power of principled cooperation to redefine how people in conflict relate to one another and to generate a dynamic force bringing together disparate goals and interests.
Cooperation Is a Survival Strategy of the Frontal Lobe. The social sciences and brain research demonstrate why cooperation works. We want and need to be liked and respected by others — we are social creatures and neurologically connected.
Strategic cooperation requires parties to be “unconditionally constructive.” This means doing those things, and only those things, that are both good for the relationship and good for the individual. When we frame the choice as “either-or,” rather than “and,” we begin to see those we could otherwise cooperate with as “the other” — an adversary whom we now fear — and our creative problem-solving capacities dramatically diminish.
The Best Negotiators Play Well with Others. In addition to strong theoretical support for the efficacy of strategic cooperation, numerous studies suggest the benefits of self-interested cooperation in practice.
A recent study analyzing negotiating skills of family law attorneys made a surprising discovery: Negotiators who were considered by their colleagues to be flexible, empathetic, helpful, sincere and trustworthy had better negotiated outcomes than those who used “hardball” tactics.1 While it is not surprising that flexible problem solvers who strive to understand and meet as many needs as possible are considered skilled negotiators, we may be surprised to learn that they also are considered better negotiators than their more contentious colleagues.
Cooperation Works Even with Very Intense Conflict. Strategic cooperation has been used effectively in terrorist negotiations, hostage situations and deep-seated ethnic conflicts to name just a few intense conflict situations.2
Like many legal disputes, a hostage situation involves high stakes, crisis, heightened emotions, multiple parties and a team approach. Hostage negotiators are trained to build relationships: “The negotiator is trying to create the kind of bond that psychologists develop with their patients — a bond that will allow them to find a solution to the crisis together.”3
Cooperation Brings out the Best in Us. As anything other than a short-term measure, overpowering doesn’t work. We know this intuitively from our experience in the world.
Take political change as an example. Imposing power may get us what we want short term — an illusion of victory; however, enduring resolution to difficult challenges requires multilevel solutions that call us to join together, all sides participating and co-creating the solution. When we move out of power struggle and competition, human beings have an uncanny ability to draw upon our vast creative potential and make quantum leaps in problem solving.
Facing issues of our complex global future requires people skilled in cooperative negotiation. As centuries of war demonstrate, fighting power with power simply leads to an escalation of power.
Cooperation Does Not Equal Capitulation. Strategic cooperation exists in an atmosphere of trust, shared meaning and empowerment. Capitulation, on the other hand, refers to a situation in which parties — due to a discrepant power base and a threat to misuse power — appear to agree or cooperate as a “façade of trust.”4 They may share interests and meaning, but one party, out of fear or dependency, capitulates to another.
We cannot emphasize enough the importance of a “level playing field” (respect, “unconditional constructiveness”), transparency (trust-building measures) and the development of shared meaning — all of which allows for safe, creative problem solving.
Cooperation in a Collaborative Law Case. The power and success of collaborative law lies in the foundational principle of cooperating in the interest of maximizing the outcome for all parties to a conflict in a context of full transparency and high-end goals/ shared meaning.
Cooperation Between Disciplines. Collaborative law is built on an interdisciplinary team of professionals working according to a coordinated strategy to maximize the outcomes for people in conflict; not as a gathering of experts, but rather as an integrated system of professionals specifically trained in team dynamics and creative problem solving.
The collaborative law structure enhances the powerful synergy of teamwork. We can accomplish much more together than any of us can do on our own. The high degree of coordination and cooperation that characterizes a collaborative team means a strong container within which the intense emotions and disparate needs of people in conflict can be effectively resolved and replaced by a creative process.
Cooperation with One’s Own Client. Collaborative lawyers work in cooperation with their clients as equal partners in resolving disputed issues. In this “new advocacy,” the client holds the expertise on her interests, needs and goals; the attorney holds the expertise in the legal and process framework. Advocating in this paradigm requires a cooperative sharing between client and attorney, each within her own area of expertise.
Cooperation with the “Other Side’s” Lawyer. Clients and their attorneys agree not to litigate from the outset. In this context, all participants voluntarily hold their “feet to the fire” of cooperation rather than allow one side to take from the other through the exercise of threat or power.
With the introduction of power and/or threat, the model becomes win/lose. A sometimes quicker, easier escape from conflict, this strategy costs dearly in terms of damage to existing relationships of the people in conflict and the professionals assisting them. Over time, the conflict reemerges, eating up more time and money in recycled conflict.
Cooperation Between People in Conflict. In collaborative law, participants commit to mutual benefit from the outset. Collaborative lawyers screen clients for their ability to consider the needs of the other party, to remain open to creative options and to place relational and reputational issues on a equal footing with other important interests, such as money and access to children (in the context of divorce).
Collaborative law focuses clients on finding solutions that meet their high-end goals, rather than letting the fear and anger of the current conflict drive the final outcome.
Powerful Energy, Powerful Solutions. The increasing awareness and understanding of strategic cooperation holds much promise for the future. All levels of conflict, from interpersonal to international, can benefit from this powerful method of resolving disputes. Strategic cooperation can turn an opposing force into new directions and dimensions.
Karen Bonnell, ARNP, M.S., is a collaborative family law coach in Bellevue. She is Training Committee chair and board member of King County Collaborative Law, board member of Collaborative Professionals of Washington, and provides training in advanced conflict resolution strategies. She can be reached at Karen@TLDforLife.com.
Holly Hohlbein, J.D., is a collaborative family law attorney in Kirkland. She is vice president of King County Collaborative Law, founding co-chair of the KCBA Collaborative Law Section, and a frequent trainer, author and presenter in the field of collaborative law. She can be reached at hollyh@hhattorney.com.
1 Andrea Kupfer Schneider & Nancy Mills, What Family Lawyers are Really Doing When they Negotiate, 44 Fam. Ct. Rev. 612 (Oct. 2006).
2 Heidi Burgess & Guy Burgess, Intractability and the Frontier of the Field, Vol. 24, No. 2, Conflict Resolution Quarterly (Winter 2006).
3 When a Crisis Reaches the Breaking Point: Hostage Negotiators Offer Invaluable Lessons for those Facing Tense Standoffs, Negotiation Newsletter, Program on Negotiation at Harvard Law School, Vol. 11, No. 9, (September 2008).
4 Christel Lane & Reinhard Bachman (editors), Trust Within & Between Organizations, Oxford University Press (2000), 78–81.
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