I’m lawyer, so I talk to a lot of people who are in disagreement; but they all agree on one thing, the litigation system is broken.
So, if the system isn’t working– fix it.
You can do it – if you remember that every contract is considered to be the “private law” of the parties. As long as it doesn’t conflict with the larger system, that private law will be upheld and enforced by the larger system.
When you write your agreements, create your own legal system.
Start by naming the vision and values that will govern decision-making in your relationship: “In order to form a more perfect union . . .”; “We hold these truths to be self evident . . . .”
Then, establish a customized structure for having the conversation if you find yourselves in disagreement.
Instead of being forced to turn as a supplicants to a failing legal process — where you must ask the Great and Powerful Legal Interpreter to tell you how your contract’s language is going to impact your current reality — you can choose, or even design, your own dispute resolution system.[1]
You don’t have to choose an adversarial system.
By choosing a process with a proven track record for harnessing the creative potential of conflict while minimizing its destructive tendencies (there are a few I can recommend), you can keep the power of self-determination, the power to decide how you want to solve the problem. You can give yourselves a better chance of sustaining the beneficial purpose of your relationship and evolving the vision and mission in a productive response to unexpected change.
You don’t have to use the broken system. Occupy The Legal System. Make your own system that works.
[1] It is (mostly) true that the parties cannot contract away the right to litigate. The spectre of litigation will always be there. But it does not have to be your only option. You can make the broken system your choice of *last* resort by agreeing that using an alternative, non-adversarial process is a pre-condition to launching a litigation.
How serendipitous! I was writing a blog today on just this sort of issue.
I am a construction contract law specialist (an English non-practising solicitor, speaker and trainer) who is developing a 500 Word Contract for simplicity and clarity, which gives the parties confidence that they can understand and use their agreement to their mutual benefit.
Although it doesn’t start with values, it does clearly ask the parties to state their objectives for the project as well as discuss risk factors and agree who will manage those risks. I believe that by having self-drafted contracts based on sound legal principles and a bare outline of clauses, parties will communicate better, collaborate more and ultimately have more constructive (not destructive) commercial relationships.
It would be good to have a guest blog from you on my website: http://www.enjoylegallearning.co.uk/blog. Thanks.
Dear Sarah,
Great to hear from you. I visited your site and love the idea of a *500 Word Contract ™* I also like your emphasis on common sense considerations and cutting through complexities in establishing and maintaining contractual relationships.
I’d love to explore the possibility of a guest blog; and I’ll send you an email so we can connect more directly.
warmly and looking forward
Lindaa