Much of my work, when I am rehabilitating parties’ terms of business, requires me to reflect on the nature and quality of their agreement (and its opposite). We are often taught that agreement is good and that disagreement or conflict is bad. However, adopting an accord-centred approach, it seems possible to reflect a little more deeply.
Accord = the relational aspect of agreement. Often overlooked in traditional contract making, it represents the heart and spirit of the parties’ agreement – their shared and separate hopes – the ‘what’ and the ‘why’ of their commitments in ways that also authentically represent the “who”.
Discord = active disagreement, often manifesting in open conflict and disputes – but sometimes containing the potential for accord in narratives thickened around threads of the “absent-but-implicit”.
Dys-cord = unhealthy agreement, the illusion of agreement, often reflecting power imbalances – may represent the compromise that everyone is unhappy with – might also represent the type of “one-up” approach to contract-making and negotiating that tips the parties towards conflict and bickering over the contract at the first upset. Although dys-cordant agreements can be legally enforceable, they often leave the parties with a lingering sense of discontent and distrust that may lead to non-co-operation and eventually undermine their true “loyalty to the bargain”. Dys-cordant agreements are inclined to “leave value on the table” – especially intangible value.
I wonder how much of what passes for agreement is something less than true accord? And how, as collaborative lawyers, we can use our skills to help our parties resolve discord and make healthier agreements.
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