The kindness of contracts

As an ex-lawyer, I’ve come to realise that many people labour under a delusion that lawyers (or, indeed, anyone who loves to be precise and document agreements between parties) behave the way that they do because they’re retentive control freaks who are scared of everything going wrong. While that will certainly be true for some of my brethren, it’s not the only reason. In fact, the most genuine reason (for me, at least) is that conversations about expectations, followed up with agreements about future actions (contracts), are a profound act of kindness for everyone involved.

But first, a little bit of Human Nature 101:

  1. Human beings want to Do The Right Thing, and the real issue is that we all have a very different idea of what The Right Thing actually is. This makes sense, when you think about it: the way we each see the world is the product of a lifetime’s worth of highly individualised experiences filtered through everything our particular upbringing taught us about how the world works. The fact that we can understand each other at all is something of a miracle, in my opinion, but I digress, and now return to the point: the shared value - that is, the shared intention to Do The Right Thing - is there. Very few people are narcissistic and angry enough to act out ‘screw the world,’ but the problem is that this small minority always ends up on TV, so it looks like they’re everywhere. 
  2. Because we all have a very different idea of what The Right Thing is in any given scenario, then, when humans are in relationship with each other - whether at work or at home - conflict is absolutely inevitable. We will even have conflict about our preferred ways to handle conflict! Knowing this, we have the opportunity to get strategic about: 
  • How we mitigate the potential for conflict, and 
  • How we will handle conflict if/when it does eventuate. 

How we mitigate the potential for conflict

As per the above, conflict often stems from humans having different expectations about how things were going to be handled or unfold, and assuming that their particular expectations are shared and are Right. We know this, and yet we’re rarely strategic about calling out our, and others, expectations before we launch into action.

We mitigate the potential for conflict by having upfront (that is, before we launch into any kind of action) conversations about each parties’ expectations on:

  1. How a certain situation will proceed;
  2. What might go wrong; and
  3. How we would like to handle things if they do ‘go wrong’.

Having this conversation upfront enables us to see where we are not in alignment, and to do something about that before it becomes a problem.

We don’t tend to have upfront conversations about expectations because: 

  1. Most of us are unsure about how to bring up unspoken expectations without appearing weird;
  2. Having these conversations takes time (which we rarely feel like we have); and 
  3. Doing this forces us to confront the inevitable reality that things may go (perhaps irreparably) wrong. And that’s not a notion that we’re comfortable with, because it flies in the face of our craving for certainty. 

So, how do I have these conversations? 

Well, if you’re me, you’d simply say, “Before we launch into anything, I’d like to have a conversation about how we think this is going to go, and what we both need from this in order to consider it a success.” By specifically referencing both parties’ needs (not just yours), you’re opening the door to a really collaborative conversation. 

How we will handle conflict if/when it does eventuate 

I really couldn’t stress enough how important it is to have conversations about how parties will handle conflict if/when it eventuates. So much of our instinctive behaviour in conflicted situations is likely to make the situation worse, whereas having an agreed upon process pulls people toward something which is much more sober and rational, and thus, more likely to resolve the conflict. 

Take pre-nuptial agreements, for example: they make so much sense given our divorce statistics and the very great emotional volatility that can accompany the end of a relationship, and yet, most people don’t enter into them, or have some kind of conversation about ‘how would we handle the ending of our relationship?’. Why wouldn’t we determine now, while we can still think clearly and while we still want what is best for each other, what we would do in those circumstances? We don't do this because it makes us sad to consider the ending of the relationship, and uncomfortable as we need to advocate for ourselves at a time when there isn't actually an immediate issue. So we don’t do any of that upfront work, and we end up in protracted and very damaging proceedings at a time where we already feel like our whole world has been blown to bits. 

When I was managing a big team, we came up with a jointly agreed upon process about how we were going to handle conflict when it inevitably arose. It covered off on what everyone thought was important – the opportunity to respond to an accusation before it was made more public, what ‘respect’ looked like in these situations, the medium in which a conflict was communicated, when management would be involved etc. And because we made those agreements, conflict barely arose because it never escalated past the first step of the process (which was to have a face to face conversation with the other party, where we explored what wasn’t happening that we expected would happen). That is, that little bit of upfront work paid enormous dividends in keeping us on track, and in happy, respectful relationship with each other.

Summary

Contracts are kind because they recognise and respond to so much of what is instinctive and irrational about humans. If you’re not getting what you think you ‘should’ be getting in a situation, try having a conversation about each parties' expectations, find out where you aren’t in alignment, and be prepared to hunt for an outcome where everyone gets what they need. 

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