By J. Kim Wright for Enlivening Edge Magazine
In the last article, I promised to write about clauses which set out ways to address change and engage disagreement. Author Linda Alvarez refers to this as the “ACED clause”—short for Addressing Change and Engaging Disagreement. Following the steps in that section of a conscious contract is a precondition to going to court.
Most contracts are written for judges to interpret when things go awry. They contain standard language that leads to litigation, as if that would settle anything. Those litigation-focused contracts are full of threats and penalty clauses. The contract becomes a weapon of war, not a tool for resolution.
In Conscious Contracts, we design a resolution process together, at the beginning of the relationship while things are still going well. The contract begins with a touchstone statement which spells out the vision, mission, and purpose of the parties. It is a true meeting of the minds—and hearts. It declares who we are and why we are entering this contract.
The touchstone helps us get clear about the relationship and the future we are trying to create together. We then consider how we want to stay on track. Things change. Misunderstandings happen. Values change. What will we do when things go awry? How do we get back on track?
The Conscious Contract answers those questions in personal and unique ways that are designed for the specific parties. It isn’t a standard form but a values and purpose-based design for what to do, how to engage the difficult conversations, and how to start.
I’ve written conscious contracts for diverse situations: many business partnerships, several co-parenting relationships, as a starting point for negotiations for an international consulting company with associates in 44 countries, with workshop co-leaders, and for two Buddhist organizations looking to create clarity between them. The contracts have ranged from formational documents to buy-sell agreements. Colleagues of mine have used the model for best-selling authors and tech start-ups. In one of my courses, a mining company lawyer became excited about stating that safety was their primary value in every legal document.
Conscious contracts are versatile and unique to every situation. Values are intertwined with other contract terms. They’re personal and confidential so sharing exact contracts here as examples is not possible.
But, it is easier to understand with an example. So, below is an example of an ACED. I put this together from a few paragraphs that I liked in several contracts. Of course, this is just an excerpt. The whole contract includes the touchstone statements of the parties and the typical terms of the contract. (How much does it cost? When is it due? Etc.)
Maintaining Harmony – THE ACED
& Engaging Conflict & Disagreements
From time to time, circumstances may change. New information may come to light. The change may emerge slowly or something sudden and unexpected may happen. The change may be positive or challenging. We may need to make changes to this agreement or address issues that arise where there are differences of opinion. We may even change our minds.
This section is meant to help through those times.
This is not a contract that is designed to take to court and argue for damages. We don’t want to be protected from each other. We want to build a relationship that endures change and can withstand and transform conflict.
This contract is a living document and it may be modified as needed, by agreement. It is written in plain language to make it clearer to people who are not lawyers.
We commit ourselves to each other, both during and after termination of this agreement, to make every effort which is reasonably possible and necessary to preserve and enhance the love and care we have for each other. We must be the change we are seeking.
Accordingly, if we find ourselves in disagreement, we each commit to dedicate our efforts towards bringing ourselves back into agreement as quickly as possible by talking together honestly, openly, in good faith. These conversations will be conducted with a commitment to fairness for all involved. If useful, we will use our non-violent communication skills to slow down the communication and listen more deeply to each other.
All conversations will be undertaken in alignment with our above stated Vision, Mission and Values. In addressing any conflict or change, we agree to be guided by the values of compassion, forgiveness, tolerance, contentment and self-discipline. We agree to approach each conversation with kindness and compassion.
While we have agreed to be governed by the laws of the EU, we share the intention to use dispute resolution models that are focused on our shared values to resolve any conflicts and to never find ourselves in any court. To that end, we agree that litigation is not an option except in the most extreme cases where no other option is available. Before such an extreme step, we agree to exhaust several other options.
As a precondition to filing any lawsuit, we will engage in the process below, which is designed to return us to harmony, grace, and peace and to move us and our mission forward. We will take as many of these steps as necessary to get to resolution.
Step 1: In case of conflict, each party will step back and investigate the reality of the issue with a calm mind.
“We can never obtain peace in the outer world until we make peace with ourselves.” –The Dalai Lama
We will schedule regular weekly meetings, based on our schedules. If we anticipate a change or a clearing conversation is needed, we will discuss that at our regularly scheduled meeting.
If a change or conflict arises between meetings and it can’t wait, we will first use email to explain the issue. The email may suggest a resolution that is in alignment with our shared values and goals. A videoconference meeting will be scheduled as soon as possible.
Step 2: We will meet to discuss options. In this meeting, if any of us believes it would be helpful to have the presence of a neutral person or someone with more information to add to the conversation, he or she may request that someone sit with them to hold space and provide guidance while we discuss the issue.
In this meeting, these questions can be used as guidelines:
- What do we most appreciate about the work we have done together so far?
- What has really worked well for us so far? How can we expand on it?
- Do each of us feel we are getting what we anticipated?
- Is it time to redefine or redirect our work together?
- Is there something that is no longer working for one or both of us?
- Is there something difficult we are avoiding saying or doing?
- Are there outside influences (or money) affecting how we are working together?
- What do we gain by continuing/ending this work together?
- If we are still not on track after this process, we will seek professional assistance in the form of:
Formal Mediation. Mediation is a process through which the parties choose a trained, neutral facilitator to help them discuss their issues. The Mediator does not represent either of them or give legal advice. It is most helpful when communication and brainstorming are most likely to reach an outcome. OR
Collaborative Law is a process in which the parties consult two specially trained lawyers. Collaborative lawyers enter into a contract to provide legal advice, problem-solving skills, and facilitation to achieve an agreement, but will not go to court. This approach is useful if there are legal issues that need expertise. OR
Forgiveness and Healing. If either party believes a forgiveness process would be useful, we will contact and set an appointment with Eileen Barker, The Path of Forgiveness. Once the issue is resolved, we will create a plan to bring forgiveness and healing to any leftover issues.
4. If after several attempts, we are still unable to resolve a conflict, then it will be clear that our relationship is irretrievably broken. In that case, we will choose the option of terminating the contract. All payments will be completed and a transition plan will be discussed, using the processes above.
Terminating the Agreement
“People take different roads seeking fulfillment and happiness. Just because they’re not on your road doesn’t mean they’ve gotten lost.” ― the Dalai Lama
The parties anticipate that this Agreement will survive for many years. Ending such a relationship is not to be taken lightly. Before terminating, we agree to discuss modification or a peaceful separation using the Maintaining Harmony clauses above. If we are unable to agree, we will wish each other well and go down our separate roads.
We enter into this agreement with hopes and high aspiration to benefit all beings by serving the Vision, Mission, and Values we have stated above. In this endeavour may we always remain true towards ourselves and one another,
Compassionate of heart,
Clear in word,
Gracious in awareness,
Courageous in thought,
Generous in love, [From Matins by John O’Donohue]
Agreed and Signed on _______________________________, 2017.
J. Kim Wright is the author of two American Bar Association best sellers: Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law and Lawyers as Changemakers, The Global Integrative Law Movement. A lawyer since 1989, she is a systems change architect for the legal profession. She is an American nomad. http://www.jkimwright.com