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The tag line from the old Quaker State Motor Oil commercial – You can pay me now, or you can pay me later holds true when thinking about agreements between lawyers and clients. Too often lawyers and clients are off and running, everyone with their own vision of the destination, and how to get there, without taking the time to make explicit the implicit agreement they think they have. Missing is the clarity necessary to minimize the potential for conflict. Like the Quaker State warning of engine damage if we don’t do the preventive work of changing the oil in our car’s engines, I sound the warning here that conflict is inevitable in client relationships, but the cost and damage caused by it can be prevented with a good, up-front agreement. And I don’t mean a boiler-plate form!

We all know that. But often we don’t do it because we think we need long legal documents to protect ourselves from things we don’t want to happen. We are better off shifting our focus to the results we want to achieve, and away from the calamities we want to avoid. The reality is that we often get into conflict because we don’t craft explicit agreements that create a meeting of mind and heart with people we want to collaborate with in our professional relationships.

All too often, the process of forming the agreement is seen as negotiating, an adversarial process both parties try to win. I call these “agreements for protection.” This is “we vs. them.” Negotiating is a process within which we try to advantage ourselves. The negotiation is not intended to express a clear joint vision, with a road map to desired results.

I recommend shifting the process from adversarial win/lose negotiating, to a joint visioning process that articulates an inclusive vision of outcomes, and a road map to the results everyone wants to achieve. This is a fundamental shift from the traditional idea of agreements-for-protection that focus on providing remedies for what goes wrong, to designing agreements for results that express a joint vision that satisfies everyone. The idea is to shift our thinking from “you or me” to “you and me”

Ten Essential Elements must be discussed in order to create a vision and a map to get the results we want. The elements are:

1. INTENT & VISION - Big picture of what we want. The clearer and more specific the desired outcomes, the more likely we will succeed as visualized.
2. ROLES - The duties, responsibilities, and commitment of everyone we need to achieve the desired results.
3. PROMISES - Promises of action steps. Specific commitments tell us if the actions will get us to the desired results, and the actions that are missing.
4. TIME / VALUE - All promises have a "by whens" and the time the agreement will be effective. Is the exchange fair and does it provide enough incentive?
5. MEASUREMENTS OF SATISFACTION - The evidence we achieved our objectives must be clear, direct, and measurable to eliminate conflict about weather we accomplished what we began.
6. CONCERNS AND FEARS - Unspoken difficulties need to be expressed and the fear behind them addressed. This deepens understanding of what we are taking on, and the partnership we are creating.
7. RENEGOTIATION - No matter how optimistic and clear it will become necessary to renegotiate promises and conditions of satisfaction because things change. Because the quality of working relationships is crucial for achieving desired results it’s essential to keep communicating when something needs attention.
8. CONSEQUENCES - Know the consequences for breaking promises, and what will be lost if the project is not completed.
9. CONFLICT RESOLUTION-Conflicts and disagreements will arise. Agree to an "attitude of resolution," and an agreed resolution process.
10. AGREEMENT? - When you have reflected on 1-9 ask whether you "trust" moving forward. Do not move into action unless and until you can say YES and commit to embrace the future as an opportunity to be enjoyed.

Compare an agreement for mutual results and satisfaction with a contract negotiated for protection. Here are the differences I see:

Here’s some explanation to flesh that out:

1. INTENT & VISION

RESULTS: Focus on what you want to happen.
PROTECTION: Focus on all the “what ifs” that could go wrong

We can tell what will happen in our life by paying attention to our dominant thoughts. If we focus on the calamities we increase the chances bad things will happen. What we really want in all of our collaborations is everyone concentrating on desired outcomes - the best possible vision of the future. That greatly improves the chances of creating what we want to happen. For example, when we bring on a new hire, it’s more useful to see them leaping tall buildings than focusing on the mistakes they might make.

2. ROLES

RESULTS: Making sure someone has responsibility for all critical tasks
PROTECTION: Narrowly defining responsibility to limit accountability and liability

Making sure we have what we need to get the job done without anything slipping through the cracks is a critical aspect of planning any project. We want clarity about who can be counted on, and for what. We don’t want anyone saying, “that’s not my job!” Some people like to hide. They do not like to take the risk of making something happen because if something goes wrong they do not want to be responsible. But the fear of making mistakes is no longer as powerful a driver it once was. We have all learned that innovation requires experimentation. We know that if you want to encourage risk taking, the heart of entrepreneurship, we can’t punish mistakes.

3. PROMISES

RESULTS: Contribution - committing wholeheartedly to do your part required for success, not out of coercion, but from belief in the projects mission
PROTECTION: Doing the least; hiding behind qualifying words that cloud and condition what you are promising

Who will be doing what? Consider this a form of project management. This also serves as a checkpoint - if everyone delivers what they promise, will the desired results happen? In the sample agreement below, promises are made about securing financing, sales goals, producing collateral material, and timeframes for creative design deadlines. Real promises have the teeth of a “by when,” as without a date commitment is illusory.

4. TIME & VALUE

RESULTS: Clear time commitments and satisfaction with the value given and received
PROTECTION: The most for the least

Every agreement must include clearly stated “BY WHENS,” and for how long the promises will be kept. Everyone needs to be satisfied that what they get from the project is worth what they are putting in. If we are not getting what we think we deserve we will become resentful, and resentful participants do not produce “results beyond expectation,” as people committed to a vision do when we think we are also being taken care of.

5. MEASUREMENTS OF SATISFACTION

RESULTS: Goals that inspire and state clearly and measurably what is expected
PROTECTION: Qualifiers to argue from and use as excuses

We need objective measures that tell us if we accomplished what we set out to do so there are no arguments about it? For some it’s frightening to make a commitment that will hold them accountable to a promise they made, so they will look for an edge. We need objective measures no one can question.

6. CONCERNS AND FEARS

RESULTS: Compassion for any “anxiety-producing” concerns and risks that a “partner” sees and feels
PROTECTION: An edge to take strategic advantage of when you are inside their head, in a position to play “games”

Concerns and fears are addressed to make you as comfortable as possible about moving forward. This is a way of responding to “internal chatter” that might inhibit full participation. It solidifies partnership by addressing what is lingering in people’s minds. It enables you to identify risks, and to make a clear choice about moving forward. We should be willing to take the other’s “deal” because it is fair.

7. RENEGOTIATION

RESULTS: How can we make this work as unanticipated changes take place
PROTECTION: How can changes be used for advantage

A commitment to renegotiation requires ongoing learning, and staying in the mind set of solving a mutual problem, even though things happened no one anticipated - one thing we can be sure of. This is the key principal that drives every learning organization and it’s also a keystone for staying in the relationships that are the keys to successful projects.

8. CONSEQUENCES

RESULTS: What reminds everyone of the significance of promises and failure
PROTECTION: What would be a good punishment

It is important to keep people mindful of promises we make, and focused on delivering promised performance. It is as important to realize the connection between expectations, and failure to perform. Becoming conscious of that gap is a motivator. Consequences are not about punishment, they remind us of the loss of an unrealized vision, and the sanctity of our promises.

9. CONFLICT RESOLUTION

RESULTS: What will get us back on track quickly
PROTECTION: How can the resolution process be used for leverage or advantage?

It is important to embrace conflict as expected, and to hold it as an opportunity for creatively dealing with specifics we did not anticipate. It is very important to understand the magnitude of the transaction cost of remaining in conflict, and the cost of the associated loss. Having a process in place is essential to success.

10. AGREEMENT?

RESULTS: Do I trust enough to be in an open, ongoing collaboration
PROTECTION: Can I get out without getting hurt? Is there an opportunity for a windfall?

Has the process produced enough trust so you can say “Let’s do it, I’m comfortable moving forward with you, and sense we’ll be able to work things out as we go forward.” Has the deep dialogue we have exchanged produced what Max DePree calls a relationship based on covenant – a heart felt connection and commitment to people and results.

AN AGREEMENT FOR RESULTS

Here ‘s an agreement I prepared for resolving management conflicts between six professionals who purchased an office building together. It is a simple agreement, but it clearly demonstrates what an agreement for results looks like, and how it both details the project and sets the context.

LETTER AGREEMENT

Dear ________:

Thank you for choosing me to help you resolve the conflicts you have been experiencing in the management of your office building. I will do my best to honor that trust. I have done my best to express our conversations in the following letter agreement. Please let me know if you would like to make any changes, corrections, clarifications or additions.

1. INTENT & VISION: It is our intention to resolve all conflicts that have come up related to the joint ownership and operation of your shared office building. I understand that it is your vision to have in place an agreement that will enable you to smoothly and efficiently share the space harmoniously, without conflict or divisiveness, so that you can devote all of your time to practicing your profession.

2. ROLES: Stewart will be the facilitator responsible for guiding you through the “Process of Agreement and Resolution.” You will be active participants seeking agreement and resolution.

3. PROMISES:
I promise to:

• conduct a process called “Managing By Agreement”
• speak to each one of you by telephone before the day of the process
• give each of you the opportunity to share all concerns you have
• work with you from 9 am until 5 pm or later if necessary
• deliver an agreement that sets forth the resolution of all conflict and an agreement that will state your future relationship and the process by which you will run the office building
• meet with you for half days, 60 days after the initial meeting to monitor your results, and address any existing conflict
• address any future conflict and modify your agreement if needed
• meet, confer and provide follow up coaching for you as needed

You promise to:

• prepare for the meeting by listing your concerns, conflicts and the behaviors of others you find unacceptable
• acknowledge the multiple costs to everyone of the current conflicts
• come to the facilitation and fully participate
• listen to what others have to say and reflect on your own behavior and how it might be contributing to the difficulty you are having
• authentically tell your truth about the situation
• be willing to be educated by what your hear
• be willing to change your behavior in response to what you hear
• abide by the new agreement that is reached
• let go of the conflict, forgive your partners for their past actions, and step into a new era of relationship

4. TIME & VALUE: We each promise to put in the time needed to get to resolution and stay resolved. We each understand it is an ongoing and never ending process. You agree to pay me $10,000 for the services listed above. You acknowledge that is a fair price for the services provided. You agree to pay $5,000 upon agreement; $2500 on being presented with your new agreement; and the final $2500 at the time of our follow up meeting.

5. MEASUREMENTS OF SATISFACTION: Your partnership is operating without significant conflict. More important, you have the ability to quickly resolve conflict as it surfaces. You develop the ability to quietly smile to yourself when you recall how bad it was.

6. CONCERNS AND FEARS: My concern is that you will not devote the time needed to resolve future conflicts as they arise; and that you will not move forward in good faith. You have all expressed the fear that the others are not capable of changing, and that you do not know if you are truly capable of letting go of the past.

7. RENEGOTIATION: We agree that even though we have been diligent in expressing all contingencies we can think of, things will likely arise that we did not anticipate. We agree to modify this agreement as needed to meet then current realities.

8. CONSEQUENCES: We both understand that the failure to reach agreement will result in significant financial loss on your jointly owned building; the disruption to your individual practices of having to move; and the loss of having to leave a building you all like very much.

9. CONFLICT RESOLUTION: If we have any disagreement about our work together we agree to talk about it. If we cannot resolve it we agree to select a facilitator to help us get to resolution.

10. AGREEMENT? By agreeing to all of what is said in this letter we have an agreement to move forward.

I look forward to the opportunity of working with you.

Sincerely,

/s/ Stewart Levine

Stewart Levine

Agreed and Accepted

by__________________
Name Date

Notice that even though it is a legally binding contract to provide services, it does not look like an imposing formal agreement. In most situations a simple letter confirming what is understood and desired, what is promised, and how much will be paid is much more constructive than a formal looking document. The content gets the job done, the impact is much different.

Conclusion

We can become much better at setting expectations, and managing the engagement, thereby greatly improving relationships and repeat business. We can better serve our clients if we model the best way for them to begin engagement with their customers and clients. As we demonstrate true collaboration vs. confrontation, clients may will see the value of bringing this mindset to all business relationships.

Stewart Levine, Esq. , is a consultant, trainer, mediator and facilitator. He is the author of the award winning “Getting to Resolution: Turning Conflict Into Collaboration” and the recently released “Book of Agreement” that has been called “more practical than Getting to Yes.” www.ResolutionWorks.org