– 95 --
An Agreement that Lasts
John H. Wade & Chris Honeyman
Editors’ Note: So, you finally have a deal! How can you make the deal stick? This straightforward chapter shows why deals regularly fall apart, and provides specific advice on what you can do in order to increase the likelihood that your agreement will survive the slings and arrows of outrageous fortune.
-----
Peace, peace, they say, when there is no peace
Jeremiah, Chapter 8, Verse 11
-----
It is usually a primary goal of a negotiator not merely to reach an agreement, but also to create an agreement which is durable, along with a mutual sense of commitment to its performance among those signing it.
Agreements which are performed in substance by all parties, which no one walks away from, and which do not require enforcement proceedings can be described as “durable,” “final,” “stickable,” or “committed.” We are using this as a working description of a durable agreement in order to sidestep a historic legal debate over whether a contract actually gives each party a choice—to perform the expressed obligations, or to “perform” in a secondary sense, by breaching the contract and paying damages (or accepting other consequences of a breach). This chapter works on the assumption that choosing “secondary” obligations such as damages is not “performance.”
What percentage of negotiated agreements in various types of transactions, types of conflict, or in various “cultures,” are actually performed as written or promised? For how long do agreements in these varieties of areas “endure” or “stick?” To use more narrow legal language, what percentage of negotiated agreements in these various areas are seriously “breached,” or allegedly seriously “breached?”
Various levels of courts ask similar questions about consent or litigated orders. What percentage of judicial orders is complied with, and for how long, in different areas of culture and conflict?
With only anecdotal evidence to rely upon, it is probable that the actual durability rate of agreements varies enormously across class, culture, wealth, and type of transaction or conflict. With extensive research, these patterns of breach could be made visible by “durability graphs” or “performance rates” which may assist to change people’s expectations of finality.
For example, low rates of durability (only 10%-20% lasting more than 12 months) would possibly attach to child visitation agreements in certain categories of families. Conversely, high rates of vendor-purchaser durability (85%-90% lasting indefinitely) would possibly attach to house purchases in Australia or America. Purchaser—bank mortgage contracts may also have high rates of performance amongst the middle class, until recession and job losses escalate. Again, such studies of performance and non-performance would assist to modify expectations of “finality” of negotiated agreements.
Many of the factors which hinder initial commitment to reaching an agreement also contribute to undermining ongoing commitment to performance. Set out below are some of the anecdotal reasons why negotiated agreements are “breached,” or are not durable.
Cultural Expectations of Flexibility
....
----
For full access, please purchase The Negotiator's Desk Reference
----
References
Carter, J. W. and D. J. Harland. 2002. Contract Law in Australia. Sydney: Butterworths.
Cheldelin, S., D. Druckman and L. Fast (eds). 2003. Conflict: From Analysis to Intervention. London: Bloomsbury Publishing.
Cialdini, R.B. 1984. Influence: Science and Practice. Glenview, IL: Scott-Foresman.
Honeyman, C. 2001. The Wrong Mental Image of Settlement. Negotiation Journal 17(1): 7-15.
Honeyman, C., J. Macfarlane, B. Mayer, A. K. Schneider and J. Seul. 2007. The Next Frontier: Thinking Ahead about Conflict. Alternatives, CPR/New York, 6/2007.
In Marriage of Gebert. 1990. Family Law Reports 14: 62.
In Marriage of Holland. 1982. Family Law Reports 8: 233.
Johnston, J. R. and L. E. G. Campbell. 1988. Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York: Simon & Schuster.
Jordan, P. 1989. The Effects of Marital Separation on Men. Journal of Divorce 12(1): 57-82.
Korobkin, R. 2002. Negotiation Theory and Strategy. New York: Aspen Publishers, Inc.
Kressel, K. 1985. The Process of Divorce: How Professionals and Couples Negotiate Settlements. New York: Basic Books.
Kubler-Ross, E. 1969. On Death & Dying: What the Dying Have to Teach Doctors, Nurses, Clergy & Their Own Families. New York: Scribner.
Lewicki, R. J., D. M. Saunders and B. Barry. 2014. Negotiation. New York: McGraw-Hill Higher Education.
Macaulay, S. 1963. Non-Contractual Relations in Business: A Preliminary Study. American Sociological Review 28(1): 55-67.
Macaulay, S. 1977. Elegant Models, Empirical Pictures, and the Complexities of Contract. Law and Society Review 11(3): 507-528.
MacMillan, M. 2003. Paris 1919: Six Months that Changed the World. New York: Random House Trade Paperback Edition.
McDonald, P. (ed). 1986. Settling Up: Property and Income Distribution on Divorce in Australia. Melbourne: Prentice Hall of Australia.
Moore, C.W. 2003. The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco: Jossey-Bass.
Pruitt, D.G. and S.H. Kim. 2004. Social Conflict: Escalation, Stalemate and Settlement. New York: McGraw-Hill Higher Education.
Public Trustee v. Gilbert. 1991. Family Law Reports 14: 573.
Shell, G.R. 1999. Bargaining for Advantage: Negotiation Strategies for Reasonable People. New York: Viking.
Spegel, N. M., R. Rogers and R. P. Buckley. 1998. Negotiation: Theory and Techniques. Sydney: Butterworths.
Transparency International. 2004. Corruption Perceptions Index 2004. Available at http://www.transparency.org/research/cpi/cpi_2004 (last accessed May 12, 2016).
Wade, J. H. 1993. Deals which Come Unstuck: Reasons for the Breakdown of Family Settlement. Australian Family Lawyer 9: 14.
Wade, J. H. 2004. Representing Clients Effectively in Negotiation, Conciliation and Mediation of Family Disputes. Australian Journal of Family Law 18: 283-302.
Weiss, R. S. 1975. Marital Separation. New York: Basic Books.
Williston, S. 1957. A Treatise on the Law of Contracts Vol. 14, edited by W. H. E. Jaeger. Mount Kisco, NY: Baker, Voorhis.
Editors’ Note: So, you finally have a deal! How can you make the deal stick? This straightforward chapter shows why deals regularly fall apart, and provides specific advice on what you can do in order to increase the likelihood that your agreement will survive the slings and arrows of outrageous fortune.
-----
Peace, peace, they say, when there is no peace
Jeremiah, Chapter 8, Verse 11
-----
It is usually a primary goal of a negotiator not merely to reach an agreement, but also to create an agreement which is durable, along with a mutual sense of commitment to its performance among those signing it.
Agreements which are performed in substance by all parties, which no one walks away from, and which do not require enforcement proceedings can be described as “durable,” “final,” “stickable,” or “committed.” We are using this as a working description of a durable agreement in order to sidestep a historic legal debate over whether a contract actually gives each party a choice—to perform the expressed obligations, or to “perform” in a secondary sense, by breaching the contract and paying damages (or accepting other consequences of a breach). This chapter works on the assumption that choosing “secondary” obligations such as damages is not “performance.”
What percentage of negotiated agreements in various types of transactions, types of conflict, or in various “cultures,” are actually performed as written or promised? For how long do agreements in these varieties of areas “endure” or “stick?” To use more narrow legal language, what percentage of negotiated agreements in these various areas are seriously “breached,” or allegedly seriously “breached?”
Various levels of courts ask similar questions about consent or litigated orders. What percentage of judicial orders is complied with, and for how long, in different areas of culture and conflict?
With only anecdotal evidence to rely upon, it is probable that the actual durability rate of agreements varies enormously across class, culture, wealth, and type of transaction or conflict. With extensive research, these patterns of breach could be made visible by “durability graphs” or “performance rates” which may assist to change people’s expectations of finality.
For example, low rates of durability (only 10%-20% lasting more than 12 months) would possibly attach to child visitation agreements in certain categories of families. Conversely, high rates of vendor-purchaser durability (85%-90% lasting indefinitely) would possibly attach to house purchases in Australia or America. Purchaser—bank mortgage contracts may also have high rates of performance amongst the middle class, until recession and job losses escalate. Again, such studies of performance and non-performance would assist to modify expectations of “finality” of negotiated agreements.
Many of the factors which hinder initial commitment to reaching an agreement also contribute to undermining ongoing commitment to performance. Set out below are some of the anecdotal reasons why negotiated agreements are “breached,” or are not durable.
Cultural Expectations of Flexibility
....
----
For full access, please purchase The Negotiator's Desk Reference
----
References
Carter, J. W. and D. J. Harland. 2002. Contract Law in Australia. Sydney: Butterworths.
Cheldelin, S., D. Druckman and L. Fast (eds). 2003. Conflict: From Analysis to Intervention. London: Bloomsbury Publishing.
Cialdini, R.B. 1984. Influence: Science and Practice. Glenview, IL: Scott-Foresman.
Honeyman, C. 2001. The Wrong Mental Image of Settlement. Negotiation Journal 17(1): 7-15.
Honeyman, C., J. Macfarlane, B. Mayer, A. K. Schneider and J. Seul. 2007. The Next Frontier: Thinking Ahead about Conflict. Alternatives, CPR/New York, 6/2007.
In Marriage of Gebert. 1990. Family Law Reports 14: 62.
In Marriage of Holland. 1982. Family Law Reports 8: 233.
Johnston, J. R. and L. E. G. Campbell. 1988. Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York: Simon & Schuster.
Jordan, P. 1989. The Effects of Marital Separation on Men. Journal of Divorce 12(1): 57-82.
Korobkin, R. 2002. Negotiation Theory and Strategy. New York: Aspen Publishers, Inc.
Kressel, K. 1985. The Process of Divorce: How Professionals and Couples Negotiate Settlements. New York: Basic Books.
Kubler-Ross, E. 1969. On Death & Dying: What the Dying Have to Teach Doctors, Nurses, Clergy & Their Own Families. New York: Scribner.
Lewicki, R. J., D. M. Saunders and B. Barry. 2014. Negotiation. New York: McGraw-Hill Higher Education.
Macaulay, S. 1963. Non-Contractual Relations in Business: A Preliminary Study. American Sociological Review 28(1): 55-67.
Macaulay, S. 1977. Elegant Models, Empirical Pictures, and the Complexities of Contract. Law and Society Review 11(3): 507-528.
MacMillan, M. 2003. Paris 1919: Six Months that Changed the World. New York: Random House Trade Paperback Edition.
McDonald, P. (ed). 1986. Settling Up: Property and Income Distribution on Divorce in Australia. Melbourne: Prentice Hall of Australia.
Moore, C.W. 2003. The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco: Jossey-Bass.
Pruitt, D.G. and S.H. Kim. 2004. Social Conflict: Escalation, Stalemate and Settlement. New York: McGraw-Hill Higher Education.
Public Trustee v. Gilbert. 1991. Family Law Reports 14: 573.
Shell, G.R. 1999. Bargaining for Advantage: Negotiation Strategies for Reasonable People. New York: Viking.
Spegel, N. M., R. Rogers and R. P. Buckley. 1998. Negotiation: Theory and Techniques. Sydney: Butterworths.
Transparency International. 2004. Corruption Perceptions Index 2004. Available at http://www.transparency.org/research/cpi/cpi_2004 (last accessed May 12, 2016).
Wade, J. H. 1993. Deals which Come Unstuck: Reasons for the Breakdown of Family Settlement. Australian Family Lawyer 9: 14.
Wade, J. H. 2004. Representing Clients Effectively in Negotiation, Conciliation and Mediation of Family Disputes. Australian Journal of Family Law 18: 283-302.
Weiss, R. S. 1975. Marital Separation. New York: Basic Books.
Williston, S. 1957. A Treatise on the Law of Contracts Vol. 14, edited by W. H. E. Jaeger. Mount Kisco, NY: Baker, Voorhis.