Saturday, August 28, 2010

Law as an Arranged Marriage

Westerners in particular feign a disdain for anything approaching an arranged marriage, as though it is both barbaric and lacking in equality. This business is often thought to be the preserve of India, where apparently the class system is yet alive and well (much to the pleasure of those who hang onto the good old days of the Empire), although its legitimacy is contaminated by the reportedly popular affection there for the cow. My own experience leads me to swerve from this high road of morality, since in the past I have, for example, been accustomed to hear of the blissful marriage of Kippy Jaffrey and Morgan Eastman, an association which even the most myopic person couldn’t possibly dub a marriage made in Heaven rather than in Forest Hill.
As a model, however, mutually satisfactory relationships are not without their attraction. There is after all something appealing about the mathematical symmetry of the affair. Reciprocity is almost universally viewed as desirable. In other words, it’s a question of give and take, an axiom of living which nicely dispenses with countless controversies about pointless feather-ruffling. As in a commercial context, it’s the bottom line that counts.

The trouble arises when the arrangement is viewed as either one-sided or lacking in that starry-eyed feature called love, which latter objection is of course a complete red herring. That is, one mustn’t confuse the propriety of the bargain with the object of devotion. This is especially true when most acknowledge that it is only a matter of time before the romantic feature of any relationship wears thin. What remains is the bargain itself, one which hopefully sustains the necessities of living, perhaps shamelessly and independently of the parties themselves. In this respect a well-crafted agreement is one which takes on a life of its own, fulfilling often unexpected goals and objectives. But as I say, it cannot be a one-sided affair; there must be mutual benefit.

Without dwelling on all the possible metaphors arising from that observation, allow me to observe that arrangements are in the result driven by both pragmatism and satisfaction. This combination of expediency and fulfillment is the formula for results. In the context of trade undertakings, fairness is the test. This word does of course admit to many interpretations, some as uncomplicated as even-handedness, others as arcane as justice. Yet however it is defined, the pact must in the end be suitable to both parties, and that inevitably means the ground rules must be established at the outset. Assuming an equality of bargaining power and good faith on both sides, it is my belief that candidness about the task at hand is the tool to an open book, one to which the parties can ultimately and happily commit their names in writing.

Being frank and forthright is a sensitive undertaking, not only as a precursor to marriage but as an introduction to an association of any importance and merit. Sensitive, not because one should be afraid to appear indelicate, but rather because it requires the parties to be insightful, which in itself commands perhaps more far-reaching shrewdness than most of us have readily at our disposal. I never suggested the arranged marriage was an easy one. What inevitably makes the discussion particularly subtle is the vulgar subject of money. It is an unavoidable poser, but to poke at it or dance about it rather than address it head-on is to transform it into a riddle. There is no need for money to be a mystery. It is rather like farting in that respect. We all do it, so why pretend it’s not happening. I can safely say that it is likely to be but a matter of minutes after parting that the respective parties to any transaction will quickly come to the issue of money in the relationship, most certainly one between oneself and one’s legal Counsel.

Like an arranged marriage, the terms of a good legal retainer will demand that there is advantage and satisfaction on both sides. It is regrettable that many harbour the mistaken view that it is impossible to make such a clean arrangement with a lawyer, as though the capacity of the lawyer to confound the situation is so exceedingly superior to all others. This is just not so, for the simple reason that it is what happens in the end that makes all the difference. Granted it may be possible momentarily to baffle the Party of the Second Part, but the puzzle will unravel before long, and the results of a poorly constituted plan can be just as devastating for the Party of the First Part.

For those who prefer to wing it in matters of love and business, the arranged marriage obviously has no place. After having practiced law for thirty-five years I can say with considerable confidence that I favour the arrangement. It’s more predictable, far fairer to both parties and it addresses the object of the alliance.

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