Practical Application

Discovering Agreement is both a frame and a framework.  It is a frame in terms of perspective and principles; and it is a framework because it provides a structure for establishing and sustaining contractual relationships and benefits.

Conventional Frame

Generally, we approach contract negotiation and drafting with the belief that if we get the deal points properly clarified and written, then the contractual language will prevent unexpected/unwanted behaviours and keep everyone on track.  We trust that the contractual language will also serve to force wanderers back on track by defining what’s ‘right’ and what’s ‘wrong’ behaviour, and – if need be – by calling upon the courts to force compliance.

Furthermore, the conventional mindset presumes that coming to terms on deal points requires the parties to consider themselves opponents competing for advantage one over the other, point-by-point.

Discovering Agreement Frame

It is easily argued that the conventional approach is a counter-productive way to form and enter relationships.  Neuroscience has demonstrated that humans are hard-wired for fairness[1]; and we all know from experience that when we think we’ve been treated unfairly, we invest a good deal of energy into looking for ways to ‘even the score.’

One presumes that the parties are entering a deal because each believes they will ultimately benefit — be better off for having joined forces or made the bargain.  Instead of framing the conversation as an adversarial process, Discovering Agreement sees the negotiation process as an opportunity to explore, clarify, and calibrate how the parties are aligned.  They articulate (a) what it is they are planning to do together and why, (b) what are their respective goals and how those will be met, and (c) the core benefits they are each seeking to generate and harvest by joining forces or by making their bargain.

Alignment of expectations, goals and roles is important to a smooth transaction or venture; but Discovering Agreement goes further.  Beyond purely transactional alignment, Discovering Agreement looks to the deeper motivations of the parties.  The first step in the Discovering Agreement process is clarification of Vision, Mission and Values.  The parties share their respective visions (why they do what they do – what it is that makes their work/products/services worthwhile and meaningful), their understanding of the mission that the bargain or venture is meant to carry out (what the relationship/bargain is meant to achieve, how the mission will serve their vision and why they believe it is a good idea to enter the relationship/bargain with one another rather than going it alone or choosing a different partner), and they establish the keys to their willingness to work together (their values and principles for how business and relationships must be conducted if they are to be worthwhile, productive and enjoyable).

Getting clear with each other about alignment of vision, mission and values can save a lot time.  Immediately, the parties figure out whether the working relationship is  a good fit, saving time and energy at the outset if they find they do not have a good fit.  In addition, when the parties understand their own and each other’s deeper motivations, they have a broader scope for finding solutions to impasse, a greater chance of creating and sustaining value in the bargain and relationship, a better chance of creating a plan for their relationship/bargain that will work for everyone in both the short- and long-term, and they have less chance of misunderstanding the reasons why the other party takes actions or makes choices in the course of the relationship (the kinds of misunderstandings that lead to unnecessary conflict).

All of this means that there is less chance of disputes arising during the course of the relationship and, if disagreement does occur, the parties have a shorter road to recovering understanding and agreement if they have built the deal and plan on a foundation of true and meaningful understanding of everyone’s needs, expectations and motivations.

With the conventional approach, the deal points define the relationship.  With the Discovering Agreement approach, the relationship is established based on aligned goals, visions and expectations and the deal points are the agreed action plan for accomplishing the mission that the relationship is created to carry out.

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The Framework

All this understanding can be reassuring, even energizing; but how do you know you can trust it?  How can you feel confident that everyone is being up-front about their true motivations and goals, and how can you be confident you can rely on everyone to walk their talk when the chips hit the fan (so to speak)?

We must look to the language of the contract to give us this confidence and we also must look to the legal system to enforce the language in a way that holds people to their commitments.  But can you draft language that will have the effect of holding people to their Vision, Mission and Values when crisis erupts?

 Conventional framework

When crisis erupts, the conventional system pits the parties as adversaries.  They mine the contractual language, looking for weapons they can use to force the other side to take or refrain from certain actions.  An inevitable by-product of this conventional structure is that, in the battle over conflicting interpretations of terms and provisions, the reason the parties decided to work together is subverted and their beneficial relationship destroyed.

 Discovering Agreement framework

Discovering Agreement addresses the need for confidence and reliability by tying express statements of alignment (vision, mission, values, etc.) to the dispute resolution provisions in the contract.  The parties consciously choose a structure for their ‘courageous conversations’ — conversations about disappointed expectations, about disagreements, about changed circumstances that force one or the other to rethink the plan — and they agree in writing that their structured conversation will focus on bringing whatever transformation is needed so that the deal/plan/relationship will once again serve the stated alignments/values/purposes/mission.

Many form agreements contain a clause designating arbitration as the chosen structure for addressing conflict.  Often, the parties unthinkingly allow the arbitration clause to stand believing that it is a form of mediation when, in fact, arbitration is essentially a form of litigation – with the option for appeal removed.  The actual experience of arbitration can come as a profoundly unpleasant surprise when the parties were expecting a process significantly different from adversarial litigation with a third-party making the final judgment.

The Discovering Agreement model recommends that the parties choose a mediation process enabling them to retain the power to craft their own solution rather than arguing their cases and leaving final decision power in the hands of a ‘neutral’ third-party.  The optimal conversational structure is a style of mediation that is oriented towards collaborative conversation focused on uncovering the interests  underlying the disagreement and that the current circumstances and terms are not adequately serving, and which then supports the parties in creating a new plan that works for everyone.[2]

By clarifying and calibrating their alignment and by consciously establishing a structure that will allow them to engage conflict restoratively, rather than destructively, the parties create a written document that memorializes, honors and sustains their relationship and the benefits it generates for all.

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