How to Write an Agreement – Record vs Defer
[ New Distinctions for Entrepreneurs – Part 5 of 12 ]
Some years ago, I decided to stop using written contracts in my business.
As my professional relationships have become deeper and more personal, the written contracts felt more and more like a ‘pre-nuptial agreement’. The idea of having a contract between me and creative partners to help keep us connected was inadvertently a weakening of our human to human trust.
This is the way I believe most contracts between people operate. They collapse the quality of a human relationship into a quantified list of this’s and that’s, OK’s and NOT OK’s.
Throughout the years, I have also become more and more orientated around creating very clear agreements with the people I work with. At the start of a new partnership, in fact, I spend close to an hour in conversation creating clear agreements with my new partners. We do this verbally, eye to eye and heart to heart.
Although these situations sound the same, they are actually quite different. Most written contracts are created as an alternative to what might be an uncomfortable or confronting person-to-person conversation.
Nobody wants to discuss the possibilities of things not working out at the start of a relationship. It doesn’t feel good. ‘Things are going well. Knock on wood. Why curse it?’
There is a cost to deferring the conversation to a written document though. Through that deferent a little bit of trust is lost. Deferring the difficulty to a contract is an alternative to vulnerability and authenticity – two of the most powerful bonds of human relationship.
Ironically, when we invite legal documents to replace the development of human relationship, we strip the relating of the fought bumps and edges that actually create the hitching into each other. As we round the edges, the surfaces of our connections smooth out. It may look like we are staying close together, but there is nothing holding us in place.
The moment friction arises, we look not to each others eyes, we seek not to each others voices…instead we refer to the document that is the fallback of our relationship.
In my work, I do not want a fallback. I want the human relationship to be the totality of our commitment to each other because in what I do, the partnership itself is a functional part of the work. I need flexibility. I need people having the total legal freedom to walk away so that I can have the space to ensure their staying happens only through their own internal personal commitment.
I’ve allowed this idea of not using written contracts to influence other areas of my life too. Recently I sub-let a studio on the beach in Santa Monica from an attorney. He sent me a list of terms outlying a written agreement. I responded saying, “I’m much less interested in terms and price than I am in creating a relationship with you. Let’s meet for coffee.” He obliged and the next day we were shaking hands as ‘partners’. No contract and I now I have a view of the Pacific Ocean from my desk.
A few months back, I was invited by a friend to publish a short fiction story I wrote. The editor sent me a contract with many pages outlining the terms of the deal. There was a lot of publishing business lingo and many terms that felt awkward to agree to, especially never having spoken about them.
I wrote back saying I didn’t want to sign it, but I was interested to know what things in it were important to them. They responded admitting they didn’t know what was in it and they just sent what the publisher said to send.
After an in-depth conversation, we decided instead that they would decide what is important to them, I’d decide what was important to me and then we would discuss. We did this and we came to agreement on a number of points. After that, we then recorded those points in a document and both signed it.
In the end then, we did have a written agreement. My insight thus is that it’s not whether I have a written agreement with people or not, it’s where that agreement comes from.
Was it created as a way of deferring uncomfortable conversation into blocks of text?
Or was it created as a record of things that we have already spoken about and come to agreement on?
The latter is supportive of a powerful relationship. The former, I believe, is in opposition to such.
When writing written contracts, how could you start recording agreements instead of deferring them to legal text?
What conversations might you need to begin having?
What kind of impact might this have on the professional relationships you create?