The conciliation process, in which two parties manage to reach an agreement despite their differences, is particularly complex. It is important to look forward, to commit to a solution despite a background of conflict, to overcome emotions to find a rational solution to problems that are not rational.
Collaborative law is first and foremost the emergence of techniques from psychotherapy in the management of litigation. For the lawyer, it is a question of understanding the narrative theme of a conflict in order to guide discussions in the right direction through a positive framework.
Collaborative law involves the scripting of a negotiation in order to bring people in conflict to find a mutually acceptable solution.
How does it work?
Take the case of a divorce by consent (but it can also apply) Mutantis mutatis to the amicable liquidation of a company or a partnership agreement).
Two parties enter into a conflict on a personal and emotional level. A desire for revenge or suffering, which results in an attack by the former partner, may be on edge. Especially if one spouse has failed in his marital duties. Dialogue is then often almost impossible.
By what series of techniques, is it possible to open the dialogue again, to find a way to resolve the dispute?
The collaborative procedure uses a number of techniques arising from cognitive biases (derived in part from so-called brief and solution-oriented psychotherapies).
The (re) framing:
A collaborative procedure starts with a declaration of intent by the parties. Each of them expresses and declares to the other their expectations, fears and intentions for the future.
There is a framework, because the statement of the two spouses establishes the framework of the discourse: it allows the debate to be anchored in the future, towards the solution, and not towards the past.
In structural analysis, we frame the discourse on the parent/parent relationship.
Reciprocity:
Each spouse opens up to the other and declares his expectations. This necessarily leads to a transaction at an infra-conscious level, where everyone offers their fears and hopes to the other. Such openness creates a natural bond of sympathy.
The principle of coherence:
The psychological principle of coherence means that the human mind has a tendency to be coherent and to persevere in one direction once it has been initiated.
The fact that the spouses publicly acknowledge (the so-called foot in the door effect) their desire for an amicable resolution of the dispute generates a sequence of behaviors that persist in this direction.
The establishment of a calendar of meetings and the signing of a participatory agreement reinforce this principle of coherence through increasingly strong and formal requests for commitment.
The aversion to loss (Sunk Cost Fallacies):
It is more difficult to accept a gain than a loss. This principle is often found when, for example, after starting an activity, it becomes more and more difficult to give up.
The start of the so-called amicable procedure makes it less feasible to abandon everything to start a litigation procedure. An inertia towards the amicable resolution of the dispute is created.
One of the principles of the collaborative procedure is that lawyers must recuse themselves in the event of a judicial referral. In this case, everything has to be redone. The opportunity cost of leaving the procedure is therefore increased, making this possibility less attractive.
Collaborative divorce in all of this?
The joint action of these various psychological principles, throughout the procedure, makes it possible to set up a discussion framework that prepares mentally to move in the direction of resolving the dispute.
An amicable procedure that does not implement these various psychological principles would deactivate its operating power and lose its relevance.
Hugo Winckler - Lawyer at the Paris Bar - Collaborative procedure practitioner
#droitcollaboratif #psychologie
