Originally from Alternatives to the High Cost of Litigation

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What can you do if you want to negotiate cooperatively with the other side from the beginning of a case? 

Of course, in some cases, businesses do negotiate successfully at the outset. Some parties use settlement counsel, who work exclusively on negotiation in a matter. Although these ad hoc or unilateral negotiation approaches work well in some cases, they may not be sufficient to overcome the adversarial dynamics that sometimes occur in litigation. 

Though most cases eventually settle, too often the process is more expensive, time-consuming, and contentious than necessary.

“Cooperative practice” is a recent innovation using an agreement by the parties that structures a negotiation process to produce early and efficient settlements. In essence, Cooperative negotiation is a joint early case management process. It is similar to Collaborative practice but does not include the customary Collaborative practice provision limiting lawyers’ representation to negotiation, as described below.