Collaborative negotiation is a special form of conflict negotiation. Article 1738 Ger. W. defines it as “a voluntary and confidential procedure of dispute resolution by negotiation involving conflicting parties and their respective attorneys and the latter acting under an exclusive and limited mandate of assistance and advice to achieve an amicable agreement.”
The disputes listed in article 1724 Ger. W. can be the subject of collaborative negotiation. In general, all private law conflicts of a patrimonial nature and non-pecuniary conflicts that are amenable to settlement can be the subject of a collaborative negotiation.
The extrajudicial collaborative negotiation originates in the agreement between the parties. Judicial collaborative negotiation arises from the agreement of the will between the parties during a lawsuit.
A collaborative negotiation protocol is drawn up (“contract”). This protocol is signed by the participants and the collaborative lawyers. This protocol identifies the parties, defines the conflict, includes the confidentiality principle, voluntariness, and so on.
Please note that signing this protocol suspends the statutes of limitations regarding the conflict, but not the expiration periods. The expiry can only be avoided by issuing a summons. Also the taking of protective and provisional measures is temporarily not allowed anymore.
Although the legislator speaks of a “procedure”, it is essential that the participants negotiate with each other themselves. The parties undertake not to initiate or continue litigation.
Furthermore, article 1739 Ger. W. that “only collaborative lawyers may conduct the collaborative negotiations”. This exclusivity is also confirmed by the Constitutional Court since there are other forms of negotiation and mediation that can be carried out by other lawyers and experts.
A collaborative lawyer is a lawyer who has followed special training, acquired the required knowledge, subscribes to the regulations for collaborative lawyers and is registered on the list of collaborative lawyers. Their role is limited to providing assistance to the client (negotiation coach). The collaborative lawyer ensures that his client’s agreement to the collaborative negotiation agreement is pure will.
Should one of the parties withdraw from the collaborative negotiation, the collaborative lawyers may no longer intervene in a lawsuit between the same parties in the context of a dispute that was the subject of the collaborative negotiations (withdrawal obligation).
According to the Constitutional Court , this obligation to withdraw does not prevent the right to a free choice of lawyer. This right continues to exist in full in other cases and, moreover, the participants freely choose to take part in the collaborative negotiation.
The documents prepared and communications made in the course of the collaborative negotiation are confidential. On the other hand, the information and documents that existed before the start of the collaborative negotiation are not covered by this confidentiality principle.
However, an essential feature of collaborative negotiation is the spontaneous provision of full disclosure of information. In order to prevent transferred information and documents from being used in the lawsuit that follows an unsuccessful collaborative negotiation, the parties may agree in writing that this information is subject to the confidentiality of article 1745, §3 in conjunction with article 1728 Ger. W.
The collaborative negotiation process shall proceed as follows:
- Initial consultation between the collaborative attorney and his client;
- Collaborative lawyers contact each other;
- Preparation of the collaborative negotiations by the collaborative lawyer and the client;
- Preliminary consultation between the collaborative lawyers;
- First collaborative consultation session (first meeting);
- Debriefing between the collaborative lawyer and the client and between the collaborative lawyers themselves;
- Further preparation meetings with the client and consultation sessions between the participants and the collaborative lawyers;
- Draft text of the agreement.
After the clients agree to the draft text of the agreement, the lawyers organise a signing session. As a last resort, the participants and collaborative lawyers will then formally confirm and sign the agreement.
A collaborative negotiated agreement is in principle legally enforceable (settlement agreement). The facts and rights of the parties are laid down in a binding way. If the parties have made mutual concessions, this is referred to as a settlement agreement.
This agreement is binding on the parties and is therefore, in principle, non-confidential.
Note: this agreement can be enforced in court. If necessary, the collaborative negotiating agreement can be converted into an enforceable title by including it in a notarial deed or in a court order.