Chuck Menahem Kanafi

S2 E4    24 May 2022

Mindful ways of addressing legal conflicts

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Mindful ways of addressing legal conflictsChuck Menahem Kanafi
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Chuck Menahem Kanafi 

Integrative intercultural lawyer and mediator

Chuck Menahem Kanafi is a values-based, purpose driven lawyer. He specialises in conflict prevention and management and contracts.

He is a Certified Mediator and brings an intentional and mindful approach to mediation. He is a Certified Conscious Contracts® practitioner and trainer.

We discuss his insights into new ways of addressing conflicts in mediation and ​through Conscious Contracts® as well as his plans to assist impactful businesses through more compassionate contracts.

Bio

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Links

Transcript

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Bio:

Chuck Menahem Kanafi is a values-based, purpose driven lawyer specialising in conflict prevention and management and contracts.

He brings an intentional and mindful approach to mediation. He is a Certified Conscious Contracts® practitioner and trainer.

Chuck is a former ambassador for Israel. He is qualified as a lawyer in Israel and New York and is a Certified Mediator under German law. He has over thirty years of legal, government and international trade and high tech experience. His focal points include the European Union/Germany, Israel, and India. 

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Show notes:

[2:17] Chuck describes how transformative mediation works to deliver better solutions than traditional dispute settlement.

[8:00] Chuck relates how he came to mindful meditation and his inclusion of mindfulness practices including meditation and Vipassana yoga.

[14:09] We drill into how legal representatives can help or hinder transformative mediation. and how best for lawyers to train for this approach.

[20:03] Chuck shares about his journey to becoming interested in Conscious Contracts® which started with Brexit. 

[27:48] Chuck explains how Conscious Contracts® help prevent conflicts, and how traditional lawyers react to them, in his experience.

[33:07] Chuck's latest plans are to assist conscious businesses, such as B-Corps and social enterprises, to integrate Conscious Contracts® into their operations, so they don't omit their conscious approach from their legal frameworks.

Links:

Kanafi law​, Chuck's website: www.kanafi-adr.com

An article about Transformative Mediation which was first described by Robert A. Baruch Bush and Joseph Folger in their 2004 book, The Promise of Mediation.

Conscious Contracts® website.

Oliver Hart's Theory of Incomplete Contracts, which won him a Nobel Prize in Economics in 2014.


Alalá Linda (f/k/a Linda Alvarez)'s book Discovering Agreement: Contracts That Turn Conflict Into Creativity

The website of B Lab, the non-profit behind B Corporations. 

 
 
 
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Transcript: 

Geraldine  0:12  

Hello everyone and welcome to the new Earth lawyer podcast, where we feature lawyers who are changing the practice of law to change the world. My name is Geraldine Johns-Putra. I am your host speaking to you from Melbourne, Australia. This is Boonwurrung country and I wish to pay my respects to their Elders past, present and emerging. Welcome to Episode 4 Season 2. I'm speaking today to Menahem Kanafi, also known as Chuck. Chuck is a values-based, purpose-driven lawyer. He specialises in conflict prevention and management, and contracts. So in terms of his conflict practice, he is a mediator and he brings an intentional mindful approach to mediation. He's a certified Conscious Contracts® practitioner and trainer. As well, I'd like to mention that Chuck is a former ambassador for Israel. He's qualified as a lawyer in Israel and New York, and he is a certified mediator under German law. Clearly, he wears many hats. It's a pleasure to have him on the podcast, and to have the benefit of his diverse and deep experience. Welcome, Chuck, thank you so much for joining us.

 

Chuck  1:24  
Hi, Geraldine. Happy to be here.

 

Geraldine  1:28  
Now, we had a chat, a week or so ago, and one of the things we talked about was your approach to mediation. I've had conversations with other people on this podcast about conflicts, and conflicts between clients and how lawyers can actually leverage the conflicts in a way to create a better outcome for clients. Would you agree with that characterisation of conflict, that it actually can be a key to developing a better solution for clients? Is that how you would characterise your intentional mindful mediation approach? Or is there another angle to it, that you use when you're approaching these conflicts?

 

Chuck  2:17  
There's really a lot to unpack in that question. Because first and foremost, which is actually last, because we're going to get to this a little bit later, I think conflict is preventable in a lot of cases, not 100%, perhaps, but by doing a lot of the work beforehand, you can actually prevent conflict, or not necessarily prevent it, but have a comfortable, safe way of dealing with it. We're not going to get to any kind of hot conflict or real manifest conflict. But let's put that aside for a second and say, it does come to, to me as a mediator, there are a lot of ways of looking at mediation, there are a lot of different schools. And I personally, as a commercial mediator, deal more with the business side. A lot of business mediations tend to be directed towards getting a settlement, you know, somehow dividing up the pie, we have, we're arguing over the orange, and then we cut the orange in half and and each side gets gets half of the orange. That's not the way that I practise mediation. The way I practise mediation is to change the sides, or I prefer to use the term participants rather than parties, says change their mindset from being me against you or one against the other to a mindset of being you and me against the problem. That is to say, whatever has come up, whatever has become the point of disagreement here, something that can be fixed when we work together, rather than trying to work against it. And when you do that, you move into a stage of empowering the participants. First of all, to have them understand what their own needs are, to understand what their own interests are, before you even get to talking about the conflict itself. And it requires the mediator to to work with each side often separately, in separate rooms, to understand where they are and where they need to be going. And from this position they can begin in a lot of cases to understand that there's much more to their relationship than they thought. It's not just about buying and selling this orange, if we're still using the orange metaphor, is there's a lot more there's a lot more involved in it. It's not about an orange, it's about hunger, it's about perhaps the nice smell that the orange has, a lot beyond the orange itself. And in that situation, you begin to think about the disagreement in a different sort of way. And you think about how can I work together with this person, not merely to solve the conflict but to expand our range of cooperation. So the classical, to continue with this metaphor, that the classical solution that people talk about in mediation is, you know, well, one actually needs orange peel for a cake they're making and the other one needs the orange to make orange juice. So it's easy if one person gets the peel and one person gets the inside of the orange. And we really didn't have to divide the orange up. And then everybody gets more. In the first situation, I would have gotten half of the peel and thrown the inside away, the other half. The other person would have gotten the inside, half of the inside and thrown their peel away. This way, we both get all of it. When I work with mediation, I try to look outside the orange as well, you know, maybe there's another apple in the room that we can talk about, that we never talked about. Maybe we can work together on something entirely different, I give you the entire orange. But in exchange, you know, you will tutor my kid in maths or something like that.  Which is to look entirely outside the range of the conflict. And we call this transformative mediation, where it's about developing the relationship and strengthening the relationship rather than solving the question, just solving the question at hand. That question gets solved but that's really kind of subordinate to the process itself.

 

Geraldine  6:32  
Does it take a lot longer than conventional mediation?

 

Chuck  6:38  
It depends. It really depends on the mindset of the participants, you know, some people come in, and they may basically be collaborative people, they have basically a collaborative mindset. And it's very easy to work with people like that. All they needed was maybe a little bit of objectivity, a little bit of omnipartiality outside them to help them along. And there are people who come in in a hot conflict and believe that it's about winning, it's about winning the game. Even so, with the work that you do, it depends on the individual. Sometimes the people who come in and seem to be the hardest cases are the easiest to show that there is a different way. Very, very, very individual. But in any case, and when we're talking about commercial conflicts, in any case, it's way faster, way cheaper than going to court, I mean, going to court is going to take months and months, and it's just going to make the conflict worse. So in any case, it's going to go quicker, quicker than in court. Most commercial cases are solved in a matter of months.

 

Geraldine  7:44  
And how did you come to this sort of approach to mediation, given your background, we've talked about you, you're a diplomat, did that have anything to do with your current role as a transformative mediator?

 

Chuck  8:00  
I think it comes from a certain sort of mindset. At the beginning, I was very collaborative person, I always like to tell the anecdote that one of my first legal jobs was as a public prosecutor and I got fired because I was too empathetic to both sides. Not necessarily sympathetic, but I could see the point of view, you know, of the accused standing in the dark. And that's not a very good characteristic, I suppose for a prosecutor. In any case, I went into the foreign service, I went into diplomacy, which is in most cases about how do we cooperate rather than then how do we prevail. You know, you think of arms talks or trade talks where it seems to be really zero sum, one side against the other. But in most cases, when you're out negotiating an agreement or a treaty, you both want the same thing. So if I'm working together with the United Nations to provide agricultural technology and a third country, which is the sort of agreement that I did, both I and the United Nations and the third country all want this to happen. So it's not really a matter of competition, but it's really a matter of collaboration. And so I was trained, I suppose, over the course of many decades, that this is the way you negotiate. And so when I came out of it, I was in that sort of mindset, and one of my tasks then became to bring that to the world, that that's applicable also in a commercial setting, not only in a diplomatic setting. My own personal journey, I went through it, I was involved in in a mediation. And the outcome of that was so positive and so surprising, basically, that at the end of the mediation, I went to the mediator and I said, hey, can I learn how to do this? I was at a career pivot point in my life. And then I decided to go that direction. One of my trainers, my initial trainers in mediation was someone who was very ... let me put it this way, had bound up mindfulness and Vipassana practice in his mediation practice. It's a little strange because mediation and meditation, you know, the only difference there is the letter T. And so when you're Googling it, you always, if you're looking for mediation, you find meditation. And when you're looking for meditation, you find mediation. And I don't think that's coincidental, regardless of the Latin roots of both of the words. So that was from the very beginning, the very beginning, was part of my mediation practice, it also expanded into other elements of real life as well. But for a lot of reasons, for a lot of very good professional reasons, having Vipassana as part of the mediation processes is very, very helpful in terms of mindfulness in terms of equanimity, and so forth.

 

Geraldine  11:17  
So was that trainer that you had did he or she influenced you onto this path to incorporate yoga and mindfulness practices, or were you already exposed to those sorts of practices, that world?

 

Chuck  11:37  
Again, complicated. I was very exposed to that world. My partner for many years was a yoga practitioner and a bit of an instructor as well. And I actually lived in India, where there's practically no distinction made between yoga and the rest of life, it's just part of life, the way you know, the way walking and breathing and going to the store is, among a lot of people there. So I was certainly exposed to yoga and different forms of meditation around but I wasn't really a practitioner. The first time I adopted any sort of consistent practice was as a result of my mediation training, and specifically for mediation, that is to say, before a client meeting, at least a first client meeting, I would always do 20, I always do, in the present tense, 20 minutes of Vipassana for example, because it sharpens you, it brings you into the present. And then you can hear what your client is saying, and not be thinking about the next question.

 

Geraldine  12:45  
Do you get the participants as well to do meditation during the mediation process?

 

Chuck  12:53  
Sometimes it once again, it depends. It depends on the client, certainly a client who's experienced with it, I can even suggest that not necessarily with me as a guide, but say, you know, this is something that's very useful to do before our meetings, or before your contact with the other person. That's definite. When ... again, it depends if somebody who's open to it, somebody who's not open to it, and there's a little bit of, I suppose there's a little bit of art and magic to sensing whether that's anything, whether that's something that's going to be helpful in the process. Of course, it's much, much more difficult to do virtually over Zoom. When there are people in the room, the dynamic is completely different. You see tiny shifts in their shoulders, when you start to talk about things like that. And you kind of know already where where you're going. It's very helpful with certain types of clients, I think it is, I wouldn't say necessary, but an incredible catalyst for moving the process forward. But there are those people who it's just not right for and then you know, that's okay, we work with what we have.

 

Geraldine  14:00  
Do you have lawyers involved in your mediation? So do they come with the legal representatives in the sorts of mediations you do?

 

Chuck  14:09  
Sometimes, yes, and sometimes, no, it depends on the nature of the participants. If it's business, if it's some sort of corporation, then they're definitely going to come with a lawyer. Because you know, that there's, it's not just the CEO or the CFO, or whatever it is, who's there representing themselves, the interests of the company have to be represented. And unfortunately, under our current paradigm, you know, the lawyer is kind of the guard dog for shareholder interests and stuff like that. And it always has to be run through legal and of course, it's much, much more efficient if the lawyer is in the room. So with corporate you usually do have that. But if you're talking about the small business, you know, kind of mom and pop grocery store, it's probably going to be only mom and pop that show up. And sometimes we're in a situation of course as a mediator, you know, you can't give legal advice, the one side is represented, one side has a lawyer and one side doesn't have a lawyer and that presents a specific challenge for us. And for us as mediators, how do we level the playing field, especially here, when we're talking about collaboration, it's sometimes even just psychological. A person feels that when the other side has lawyered up that they're in a position of weakness. It's not always true. And part of the work of the mediator is to help them find their centre of strength, which puts them then on an equal footing with this represented other side. If it's two corporates, again, they're both lawyered up. Sometimes lawyers are helpful. Sometimes lawyers help cut through emotional elements to get to some discussion of matters at hand. Sometimes lawyers fire up emotions. It really, really depends. I know that if you're working in the UK system, and I've had some mediations there, you'd rather have a solicitor in the room than a barrister. Sometimes people show up with a barrister, you already know that's a red light, because the barrister is out there to fight. You know, that's why you take a barrister. If you just want legal advice, you're taking a solicitor. So if the participant shows up with a barrister, you already know you have you have work to do.

 

Geraldine  16:18  
They're already focused on the court process, they're thinking ahead to, exactly, getting to court.

 

Chuck  16:24  
On the other hand, barristers sometimes have this approach of let's do everything, we have to solve this now and get it done. And then again, there are helpful ones, and there are unhelpful ones. And it's something you learn to deal with over time. I guess it's a separate subject, you know, having lawyers in the room and having an equal number of lawyers in the room, and so on and so forth. The best situation is when you have a lawyer who doesn't know anything, but they're very open, and then they usually come out of the process saying, wow, mediation is a great thing. I'm going to use this mostly instead. Of course, that's that's the most satisfying for me anyway.

 

Geraldine  16:59  
Well, that's a nice segue into a question I was going to ask about anyone who might be hearing this who was thinking about a different way of practising law. And let's say they're already in disputes as a lawyer, they're a litigator, we call them different things, depending on which jurisdiction, but , they are in the conflict space in law. And they're wondering, how can I do this in a way that's more compassionate and kinder? What would you say to them, having practised this kind of mediation?

 

Chuck  17:29  
I would say, first and foremost, go out and get what's called mediator advocacy training, or mediator advocate training. A lot of times if you're looking at mediation, what you're going to see, in terms of training, mediation and training, what's going to pop up is training as a mediator, training to work as a mediator, what I do. It's not for everybody, it's certainly not for most of the people who are still, let's say, in the kind of practical litigation phase of their career, that they're still doing that actively and actively representing clients. You don't represent a client, of course, when you mediate, or, you know, present all of the parties, as I said, omnipartiality. But lawyers who have gone through mediation with a client or themselves, for that matter, tend to see the advantages of mediation much more clearly and as a result, can then direct clients to mediated solutions where it's appropriate. So it's important to look for training in mediation advocacy, how to go into the mediation room, how to work with your client in the mediation, and how to bring about a successful mediator and in fact, how to help the mediation process along that's much, much more effective than doing mediation training. Because you know, x percent, a very large percent of the people who do mediation training are never going to work as mediators. So promoting this collaborative system is more important than you know, theoretically kind of sifting through this training. There are other branches of law, which have other collaborative aspects. You've had people talk about those on this podcast before as well. So somebody who wants to go in the direction of collaborative family law, for example, there are ways of doing that. But if you're talking here about this kind of, you know, conflict resolution, then I would definitely advocate for mediation advocacy training, rather than mediator training.

 

Geraldine  19:28  
Okay, fantastic. Thank you. And the way that we met is relevant to the next question I'm going to ask, I met you when you facilitated a Conscious Contracts
® course. And I thought it was, it was something that I wanted to do for a while but I really got a lot out of the course. So tell us about Conscious Contracts®, the training you give, how did you come to this particular modality or this particular way of of practising law and drafting contracts?

 

Chuck  20:03  
I came to it from a number of directions to give you the short form. Basically, I was already working as a commercial mediator and I was involved... I'm associated with a mediation chambers in the UK. And then Brexit came, and all of a sudden, there was a new, really new situation for UK companies, vis-a-vis continental Europe companies, in terms of conflicts and conflict resolution. That was basically one system up until the end of, up until Brexit was fully implemented. And after that, almost overnight, it was like two different countries, it was like, you know, having a contract in Australia being enforced in Nepal, it was just as difficult. And we decided kind of as a direction for the chambers that we wanted to provide Brexit-tailored solutions, because I was sitting in Europe, I'm sitting in Berlin, they were sitting in the UK. And as we began to think about that, we began to think of, well, maybe we should help the parties to these conflicts, or even other clients to renegotiate their contract before a conflict breaks out, because now it's a different situation. And if they had drafted those contracts today, they would have been written differently than they would have been written five years ago. So we came to that. And that began my journey of exploration of well, how do we do this? What does a conflict preventing contract look like? And all of my searches and conversations with people led really in in the one direction of relational contracting, and Conscious Contracting
® specifically. Conscious Contracting® is a method, which is based on a book by Linda Alvarez, where there's a whole approach to the nature of a contract which is different than we're accustomed to think. Most of the people, I think most people's, let's say, experience of contracts, it's things like lease agreements, you know, rental agreements, where there's one line about you getting the flat and the landlord leasing the flat to you. And then 50 different provisions of what ifs, you know, what if I don't pay on time? And what if the washing machine explodes? And what if my dog chews the sofa? And what if, and what if, and what if. I like to call those lists of crimes and punishments, and that just doesn't work, you know. And anybody who's ever been in a conflict with their landlord knows, the one thing that comes up is the one thing that isn't in the contract. Just kind of parenthetically, a professor at Harvard, Oliver Hart won the Nobel Prize in Economics for saying just that in 2016, that was the prize in Economics. It's called the Theory of the Incompleteness of Contract. And what it basically says is all the things you thought of, it's the one you didn't think of, that's the one that's going to kill you.

So the Conscious Contract®, that process really takes a kind of an entirely different approach of saying, well, we can't think of everything, we know that that's already scientifically proven, and recognise that we can't think of everything. How do we build a contract, which is based on our relationship? How do we sense and respond to, I would say, change not just conflict, but any sort of change? How do we sense and respond rather than trying to predict and control because you can't predict and you certainly can't control, but we can create ways of talking about change that happens in our business relationship, sometimes it's our personal relationship too, we can take everything into account. I like working with startups, I really do for a whole bunch of reasons. But you know, a lot of startups that you're talking about are kind of young entrepreneurs just out of university are doing advanced degrees, scientists and things like that. And, you know, they tend to be young and single, to tell you the truth. And when they're there, and they're writing the partnership agreement for their startup, they're not thinking what's going to happen, you know, in two years and three years down the line, and they're going have a partner, when we have a partner, you double the size of your family, because you have all of your in-laws involved as well. And you may have children and you may start to have all sorts of pressures on you as an individual, which you never thought of could affect your startup. And those sorts of pressures, things you didn't foresee when you were 23 or 24, and you don't and now you're 30 and you have a family, and there are demands being made on you. These sorts of work life conflict become become much more central in your life and then start to affect your practice. Well nobody at 22 is going to write a partnership agreement saying when I have a baby, then the baby's needs are going to take priority over the needs of the investors of this company. Nobody's going to write that. But in practice. people are dealing with that question every day. And having a Conscious Contract® gives you first of all the structure to deal with these kinds of new things that pop up, and as I said, that's not conflict and might necessarily change. It's good things that can pop up as well as bad things. And the second thing that they do, which may be the more important part is they give you a values framework of how to talk about these things. What is important to me, what was important to me when I founded the company, what did we agree on when we were founding the company? What were we trying to do, when we we came up with it? And we can use those things, which we thought about two years ago, when our relationship was still firm and solid, and we loved each other now that maybe we don't love each other so much.

 

Geraldine  25:49  
Are you finding that I really appreciate that, Chuck, because I got a lot out of the course, particularly in learning how to frame values for other people, or how to elicit values from other people. And the other part was just thinking more creatively around conflict resolution causes that I draft now. But I will say that I tend to default to clauses in contracts. I was reflecting on this today, before we began our talk, I tend to still put in things like indemnities into contracts. And I was wondering why I do that. And it's really just a belts-and-braces approach that lawyers have. Tell you the truth, I hate indemnities. I hate drafting them. I hate putting them into contracts, because it's really saying that if something, if you do not do what you say you're going to do, you're then going to actually, you know, it makes me whole in such a way that covers me for every possibility. Because the starting point is you didn't do what you said you would do. And we jump immediately to that right, which means that we're skipping over all of what you're talking about. Why didn't you do what you said you were to? And I think that that's my emotional reaction to indemnities. It's just that assumption that as soon as you do something wrong, we're going to go into the punishment mode. So that's a long roundabout way of saying to you, do you find in in your practice, that you're easily or relatively easily incorporating Conscious Contracts
® ideas? And what do you find with other lawyers who have been through the course, if there is any feedback, do they tend to get reasonably smoothly into the habit of using Conscious Contracts® ideas and principles?

 

Chuck  27:48  
First, it's important to understand that a Conscious Contract
® and this form of contracting is a real paradigm change. As you talked about security and indemnities, which are there to give parties some sort of security, that's a false sense of security too actually, and I had this situation where personally, I was out to rent an apartment, and I was renting it from a lawyer. And she said, well, we need these kinds of kinds of securities besides indemnities, you need to post a certain amount of bond that's going to be locked up for the period of, and you have to give me a blank cheque without a date, and whatever, but signed by you that I can do this. And I turned to her and I said, you realise, of course, all of this is pointless. Because if I want to pay, I'm going to pay. And if I don't want to pay, I'm not going to pay. And that's the bottom line, and you can ask for whatever you want. But at the end of the day, if I'm really set on not paying, I'm not going to pay, and then you'd have a different problem. The kind of Conscious Contract® doesn't really try to give you that kind of security by heaping on layers and layers and layers of these what-ifs, it gives you security through building trust. And this process of sitting down in the process, of sitting down and clarifying your joint values and your joint vision is integral to building the trust between you so in a way, you've already built up a level of trust before you sign the agreement. And one of the fascinating aspects of the Conscious Contracts® process is that you and the other person may come to the conclusion that you're not right for each other, that you don't want to enter into this contract. You don't want to rent this apartment, because of financial pressures, because whatever it is, and then you can part as friends without entering into a contract which you're not wholly behind and which you're not really there actively to do. So, it's completely legitimate even in the very early stages to come up and say, hey, we're not aligned. We're not aligned. This is not the right person. And that happens. It's not a failure. The person who mostly pays for that is the Conscious Contracts® practitioner. It's the lawyer who's invested a lot of time in this, probably more than the parties and, and their work has not borne fruit. Of course, the participants themselves are disappointed when this happens, but they should understand each other. And they might also walk away with the understanding, hey, you know, my cousin has a flat and that might be more appropriate for you. Let's start talking about this, let's start networking together. And a synergy is created, a relationship is already created by that point, which is sometimes more important than the contract itself. 

 

The second thing you mentioned is kind of how do you interact with other lawyers. There's a paradigm change here, a paradigm shift, and there aren't a lot of lawyers who think this way. Let's be completely honest, the chances that the other lawyer that you would be working with is a Conscious Contracts® practitioner, if it's just a randomly pulled lawyer from the phonebook is close to zero. So there's some convincing work that you have to do on them. Some lawyers say, hey, this is a great thing, yeah, I'd rather do this. Some accept half of it. Some say, I'm all up for working on trust and values at the beginning but I still want to put in all my Crimes and Punishments and indemnities, and so forth. Some say, hey, yeah, we should build in this conflict resolution system into our dispute resolution clause. But that sort of makes the contract really, really unwieldy, because you have a full traditional contract and then this entire clause, which just goes in and replaces that line that the parties undertake to negotiate in good faith before going to arbitration. So that one line that you put into a kind of standard boilerplate contract, becomes five pages of deeply examined mindful discussion of how do I deal with conflict and how do I talk to you about this. But that's also a possibility. Sometimes, you know, this process, which is called the ACED, we call it in Conscious Contracting®, it's Addressing Change and Embracing Disagreement comes in as an appendix, you know, to the conflict base, basically saying, before we go to arbitration, we're going to do everything that's in Appendix A, which is then a Conscious Contract®. So there are all sorts of possibilities of creating these kinds of hybrid contracts. And, you know, it's a step in the right direction, it's a step of getting everybody, parties, business people, lawyers to try to think about the new paradigm at the very least before they make that shift. And yeah, it's a step. It's a step. It's a step in the right, so you get these kinds of, I use the term very reservedly, you know, semi-Conscious Contract.

 

Geraldine  32:45  
That's excellent. And thank you, because I really appreciated hearing some of the practicalities that you described of working as a lawyer with Conscious Contracts
®. Chuck, is there anything that you'd like to share about work that you're planning or embarking upon in the next little while?

 

Chuck  33:07  
Well, I think it would be worthwhile to. I said, I liked working with startups. Another group that I really like working with, I admit that I don't have enough practice with them is with impact organisations, impact companies, even you know, not necessarily not-for-profits, but commercial companies who have adopted a values-based approach to doing their work, there are a number of, there's a growing number of of organisations out there like this, B Corps are an example of them, but they're not the only example, a lot of self management structures holacracy sociocracy, it's easy to toss out all of these terms. But a lot of these organisations when they come up to the legalities of it, okay, now it's time to incorporate, they go back to their, you know, they go back to their city lawyers or whatever. And, you know, we say that their business consciousness ends at the door to their lawyer's office. So, my goal, one of my, one of the things that I'm working towards, is just to get the word out to make these sorts of business people aware that there is a different way, and that there's no reason that the legal activities that they need to undertake, of course, because they're companies and interacting in the world, but the legal activities that they need to do cannot be done in a mindful and conscious way as well. There's no reason to rule that out. You don't have to go and slip back into the old paradigm simply because you need to do a supplier agreement. Why should your supplier agreement not be a Conscious Contract
®? Why should your employment agreements within the companies not be conscious? Why should your NDAs not be that? All of this is all possible. And my my goal and I've banded together with a number of colleagues is to present that this is a possibility and that all aspects of your business can, can be done mindfully and can be done intentionally, and can be done consciously. So we've put together a small cooperative, which includes someone from the organisation development point of view, an expert, and an expert in conscious business structuring and operations, somebody more from the human element point of view, somebody who works on the development, the personal development of the individuals involved, mindfulness, awareness, and having them in a mindset, first of all, to craft these structures, and second of all, to implement them, and how to work with their people on that, and the legal side, which, rather than being kind of an add on, and okay, we're going to do this because it's something distasteful that we need to do, but it's something that's an integral part of the transformation of a business or the evolution of a business into a conscious business. So these are people from the conscious capitalism and conscious business community. And we're working to work together, we're still in the phase of of doing the Conscious Contract® between ourselves. That's exactly where we are. We met a few months ago, and we've been working on this for quite a while, it's not a fast process, because we really want it to work. And that's where we are, as we're working on our Conscious Contract® agreement. It doesn't mean that we're going to set up necessarily a firm as an entity, it doesn't necessarily mean that we are going to incorporate and issue shares and things like that. But we do need this roadmap for why are we doing this and how are we going to do it. And that's exactly where the Conscious Contracts® process has something to contribute.

 

Geraldine  36:57  
What you say is exactly right. So I work also in modern slavery, supply chain governance. And that's another area where the old contracting model really doesn't achieve the aim of trying to look into your supply chains and try to ensure that you haven't got modern day slavery occurring there. A punitive approach isn't actually going to help the victims of modern slavery, a collaborative approach will, and yet modern slavery clauses that go into supplier contracts tend to be very punitive. If you have modern slavery in your factories or in the factories of your own suppliers, according to the supplier contract, then that gives the customer the right to terminate or to take other punitive action. And in the end, that contract might be terminated, but the factory continues doing what they were doing. And that just is a wasted opportunity to make a difference. So I would agree with you, I also see the opportunities in working with social enterprises and with B Corps, I think that they're a wonderful potential community to begin to adopt Conscious Contracting
®, and a lot of integrative law ideas and methods, they're ripe for that kind of a change. And that actually is inspiring to me, because I work with social enterprises, and I work with B Corps. And I work with the B Corp community. So you're actually giving me a few very good ideas about conversations that I can have myself, thank you, Chuck.

 

Chuck  38:38  
So my mind is now going have I created a competitor or have I created a collaborator.

 

Geraldine  38:44  
Always a collaborator!

 

Chuck  38:47  
At this stage, of course, the main thing is, is you know about getting the word out there, because what these what these companies are doing is important, it's very important. And again, from kind of my economic background and upbringing, I think it's the future, I think it's the future of business personally, and even if it isn't today, it should be and eventually we're going to get around to understanding that as a society in general. But the word has got to get out there. And I talked to B Corp founders, and they say, well, we didn't know this was possible. And in fact, you know, that the B Corp process, the certification process...

 

Geraldine  39:23  
BIA, the business impact assessment, yeah.

 

Chuck  39:27  
Right. Part of that is legal, there's the legal thing, and then when people need this kind of legal compliance, and they run off to their, I call them legacy lawyers, the old type of lawyers, you know, but they run off to their legacy lawyer to do that work, and "hey, that's really wrong", you know, and that lawyer is maybe somebody of like mind, and you've interviewed people like that as well on this show, kind of ally lawyers, you know, maybe if they're really lucky, they have somebody like I have a colleague here, for example, in Germany, who works with impact investors, that's his little niche in practice, so of course, he gets it, you know, he gets it. But, you know, these B Corp people that I've talked to, and then they ran off to their legacy lawyers to help them do their compliance with this process will say, hey, well, if I had known that there was another way of doing it, I could have done that this way. And I'm in the very first stages of connecting actually with a B Corp organisation, not just with B Corps themselves here to see how how we can together, and how that message can can get out that there is a different way of doing your contract law. And it aligns with, it doesn't require you to give up on your principles. In fact, it strengthens. 

 

Geraldine  40:44  
Absolutely, I agree that it's B Lab, the B Corp organisers, the certifiers, that really can push the change through. They are an organisation I'm affiliated with, I also am on one of the advisory groups. So I think that this is the power of these sorts of conversations, Chuck, right here, that we each have different strengths, different networks, different angles, where we can push those to start to make a change. Chuck, I'd really like to say thank you so much for a pretty wide ranging discussion, but one that's been so helpful, I think, for anyone listening was thinking about, okay, how can I handle conflicts differently as a lawyer or advise people in conflicts differently? How can I draft a contract differently? And also the bigger picture of where it all fits in to a new way of doing business and a new way of basically working and living. So thank you for your time and for spending it with us so graciously.

 

Chuck  41:48  
Thank you for having me.

 

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