Transformative Activism: Changing the legal system by using it wisely —
According to his grandson, Gandhi uttered his oft repeated pronouncement, “You must be the change you wish to see in the world” after a prayer service where those attending said to him that they could not change until the world changed. Reportedly, Gandhi admonished them that the world will not change unless we change.
For years, I held the corollary belief that the legal system had to change before I could change the way I practiced law. As much as I wished that my professional actions and principles could be aligned with my personal beliefs and values, it seemed impossible – even foolhardy – to try and practice that alignment. So, I dedicated myself to personal practices of compassion, humility, and non-violence while I searched for an alternative profession – a ‘right-livelihood’ that would allow me to integrate my personal values with my professional obligations.
The realization was very slow in dawning that there was a way to fully integrate my deeply held principles and vision of a better world into my legal practice and thereby be a catalyst for sustainable systemic change.
My Values and Principles
- winning does not require a loser;
- safety is mutual or it is not real safety*;
- in deal-making, joining forces with others to design sustainable, mutually beneficial and enjoyable ventures is smarter than positioning parties as opposing forces trying to win an advantage over one another;
- taking the time for open, straightforward communication and achieving mutual comprehension and clarity is essential for creating and maintaining successful and enjoyable ventures;
- resolving conflict and crisis powerfully and productively – and – resolving conflict and crisis without adversarial proceedings, coercion or manipulation – are compatible goals.
I count on clients to take an active role in designing their deals, relationships, and conflict resolutions – with my dedicated support and assistance. To that end, I assist with communications, provide information and analysis on how the law and current legal system might affect potential deals, relationships, or resolutions and how to best put into words the terms and conditions of any agreements reached so that the existing legal system is most likely to support and protect everyone’s intentions and expectations.
Dispute Resolution: The Discovering Agreement approach is to Optimize Self-Determination
The Discovering Agreement process can optimize the parties’ chances for self-determination. In essence, they can design their own system for meeting and conducting the conversation if, in the future, they find that new circumstances have turned their well-laid plans to nonsense, or they find themselves faced with what appears to be intractable disagreement.
They have their expression of shared vision, shared values, shared understanding and meaning – and their established structure for conversation – to bring them together for creative, productive, mutually beneficial problem-solving. In addition, by putting in writing their chosen conversational structure for dispute resolution, they increase the likelihood that the conventional legal system will enforce that choice.
In effect, the parties can call upon the conventional legal system to enforce their choice to avoid that conventional system in favor of their chosen alternative system. They will no longer be at the mercy of an impersonal system (one designed to serve itself rather than the true interests of those who apply to it for adjudication). The parties keep for themselves the power to make decisions about next steps for their relationship and endeavour.
The impact of my work is most immediately apparent in the publishing and film industry (because many of my clients work in those arenas); but the Discovering Agreement model has been applied across industries and issues by myself, my clients, and by others who have adopted the model in order to conduct legal affairs in congruence with their personal integrity and their commitment to sustainable, socially responsible, values-based business practices and governance.
* ‘Safety’ as used here means having sufficient predictability so that one’s expectations are reasonably assured, enabling one to plan and venture with well-founded confidence that one will retain the power to take a meaningful role in responding to changing circumstances and will have an equal voice and be treated fairly should conflict arise.