Traditionally, we start our conversations about our business deals with negotiations of “deal points.”  This leads us to assume that the deal points define our relationship.  Discovering Agreement challenges that assumption. What truly does define a relationship?  Relationship is defined by how we treat each other, by what we share (vision, mission, values, efforts, benefits), by our reasons for joining forces, and by the nature of the ongoing conversation that we have as we journey forward together.

Another common feature of traditional contract talks is that we come together and imagine ourselves as future enemies fighting projected, potential battles and deciding how the burdens of loss or misfortune will be divided amongst us in that imagined potentiality. We battle to get our ‘fair share’; and we negotiate terms to which everyone will concede.

Starting From A New Perspective

When we make a start with Discovering Agreement, our attention is directed first at the basis and nature of the relationship we are entering.  This moment of exploration, clarification, calibration, and mutual creativity is the beginning of the ongoing conversation that we are entering together in order to bring something of value and meaning to the world and to our own lives.  The first step is to come to the conversation with an alert awareness that we are not enemies and that we wish to design a relationship that will never devolve into enemy camps.  We acknowledge that when we work together towards a goal or in an endeavor, we depend on one another, on our shared goodwill and on our shared well-being.

Don’t Let Deal Points Define Your Relationship

The deal points are our Action Plan – important to clarify and carefully consider – but not the defining features of our relationship.  In fact, it is highly likely that we will have discovered in our conversation that the deal points are not the ultimate reason we are taking up the shared work; the deal points are created to serve the ultimate reason for our work.

Discovering Agreement does not suggest that we leave behind our “hard earned calluses of caution and prevention” when we sit down to plan a shared effort.1 It suggests, instead, that we approach the planning as a side-by-side undertaking where we are joining forces to see if our shared energies and abilities can be harnessed to generate greater well-being for everyone involved – greater than if we did not join forces.

The truth is that it is impossible to foresee every potential eventuality.  Rather than subjecting our formative conversation to imagined stories of disaster or breach of trust, Discovering Agreement encourages us to set out a structure together for how we will address unexpected change and times of disagreement.

Don’t Give Away Your Power

The context within which all legal agreements are interpreted and enforced is the current, conventional legal-justice system.  Whether and how we write down our agreement will affect the level of power which we give over to the conventional system when it comes to determining the outcomes of disputes regarding our relationship.

As Justice Oliver Wendell Holmes, Jr. observed in his 1897 article about contract law, “Nothing is more certain than that parties may be bound by a contract to things which neither of them intended . . .” (10 Harvard Law Review 457).

Justice Holmes went on provide a simple illustration of how it is possible that the parties to an agreement might be surprised by how “the law” frames and fills the gaps of agreements that they had thought were fully and adequately expressed.

“Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said.”

(emphasis added).  It is not at all unusual for courts to imply language that is not written into the contract, or to frame or endow the existing language with meaning that neither party intended or even conceived as the potential interpretation of their agreement’s terms.

Optimize Self-Determination

The Discovering Agreement process can optimize our chances for self-determination.  In essence, we can take this moment of inspiration and mutuality to design our own system for meeting and conducting the conversation if, in the future, we find that new circumstances have turned our well-laid plans to nonsense, or we find ourselves faced with what appears to be intractable disagreement.

We will have our expression of shared vision, shared values, shared understanding and meaning – and our established structure for conversation – to bring us together for creative, productive, mutually beneficial problem-solving.  In addition, by putting in writing our choice of conversational structure for dispute resolution, we increase the likelihood that the conventional legal system will enforce that choice.

In effect, we can call upon the military might of the government as embodied in the conventional legal system to enforce our choice to avoid that very conventional system in favor of our chosen alternative system.  We will no longer be at the mercy of an impersonal system (one designed to serve itself rather than the true interests of those who apply to it for adjudication).  We keep for ourselves the power to make decisions about next steps for our relationship and endeavour.

1.  The Moral Imagination: The Art and Soul of Building Peace by John Paul Lederach (Oxford University Press, 2005)