I came across a great quote this week. Elihu Root an attorney and secretary of state under President Theodore Roosevelt said in the context of litigation “About half the practice of a decent lawyer is telling would be clients that they are damned fools and should stop”.
Many, many IT project contracts experience some form of programme challenges in the earlier phases of implementation. This is when the gloves and sometimes blindfolds of the procurement and contracting phase come off and the supplier gets to understand what the customer really wants. Generally, this leads to a bit of a hiatus, some raised voices and tempers and then a contract reset which puts everything back on track.
However, during this almost inevitable phase one of the options which somebody will invariably raise, generally without much thought and sometimes quite a lot of swearing is “right let’s go into dispute, we’ll sort them out in court”!
Now don’t get me wrong, for a truly entrenched project where the parties have tried for some considerable time to resolve their differences and ended up with very fixed and intractable positions, this may be a viable, and indeed possibly the only, way forward. Alternative dispute resolution processes (ADR) such as adjudication and mediation may work particularly well and are continuously improving – see for example the new SCL (Society for Computers and the Law)SCL Adjudication Procedure launched last year I have every admiration and respect for the litigation colleagues I have worked with over the years – their skill set can be invaluable.
But and it is a big but, going into a formal dispute process is a game changer for an IT project which tends to take on a life of its own. All the energy and efforts of both teams goes into proving they are right and supporting the lawyers as they crawl over the contract and all related correspondence. Despite the increased use ADR most litigation is based on an adversarial system where you have to prove you are right and the other side wrong. Resuscitating an IT project after the parties have had a go at each other in this manner, even in the early stages of dispute resolution, is never easy. The relationships of trust and open communication which are essential to successful development and delivery will have been severely dented at best and possibly irretrievably damaged.
I actually think that working through project issues with the right mindset can often identify and manage and avoid the argument in the first place. See, for example, this short article The Ten Commandments For Avoiding Litigation On Construction Projects which includes basic advice like formalizing contract changes in writing. And again this Harvard Business Review article Five Ways to Keep Disputes Out of Court which advocates alternative dispute resolution (ADR) and comments There are few things managers dread more than litigation. Even petty cases have a way of damaging relationships, tarnishing reputations, and eating up enormous sums of money, time, and talent. Most managers know that lawsuits are steadily increasing. Smart managers know that they are also increasingly avoidable.
I suggest there are many ways of avoiding even using ADR and prevent projects going wrong.
On of Charles Dickens characters said in Bleak House of the Jarndyce v Jarndyce case in the Chancery court it chronicles The Lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth.
Now I am a lawyer and I know things have greatly improved, but I still agree with the sage advice of another American President Abraham Lincoln Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
Many, many IT project contracts experience some form of programme challenges in the earlier phases of implementation. This is when the gloves and sometimes blindfolds of the procurement and contracting phase come off and the supplier gets to understand what the customer really wants. Generally, this leads to a bit of a hiatus, some raised voices and tempers and then a contract reset which puts everything back on track.
However, during this almost inevitable phase one of the options which somebody will invariably raise, generally without much thought and sometimes quite a lot of swearing is “right let’s go into dispute, we’ll sort them out in court”!
Now don’t get me wrong, for a truly entrenched project where the parties have tried for some considerable time to resolve their differences and ended up with very fixed and intractable positions, this may be a viable, and indeed possibly the only, way forward. Alternative dispute resolution processes (ADR) such as adjudication and mediation may work particularly well and are continuously improving – see for example the new SCL (Society for Computers and the Law)SCL Adjudication Procedure launched last year I have every admiration and respect for the litigation colleagues I have worked with over the years – their skill set can be invaluable.
But and it is a big but, going into a formal dispute process is a game changer for an IT project which tends to take on a life of its own. All the energy and efforts of both teams goes into proving they are right and supporting the lawyers as they crawl over the contract and all related correspondence. Despite the increased use ADR most litigation is based on an adversarial system where you have to prove you are right and the other side wrong. Resuscitating an IT project after the parties have had a go at each other in this manner, even in the early stages of dispute resolution, is never easy. The relationships of trust and open communication which are essential to successful development and delivery will have been severely dented at best and possibly irretrievably damaged.
I actually think that working through project issues with the right mindset can often identify and manage and avoid the argument in the first place. See, for example, this short article The Ten Commandments For Avoiding Litigation On Construction Projects which includes basic advice like formalizing contract changes in writing. And again this Harvard Business Review article Five Ways to Keep Disputes Out of Court which advocates alternative dispute resolution (ADR) and comments There are few things managers dread more than litigation. Even petty cases have a way of damaging relationships, tarnishing reputations, and eating up enormous sums of money, time, and talent. Most managers know that lawsuits are steadily increasing. Smart managers know that they are also increasingly avoidable.
I suggest there are many ways of avoiding even using ADR and prevent projects going wrong.
- Contract for flexible processes to manage project delivery and performance
- Get the right team and personalities on both sides
- Use an obligation tracker visible to both parties to understand how the project is going
- If traditional development methods are not working consider agreeing to use Agile processes
- Remember there is a contract and try and follow it
- Make sure senior management know if there are any pending major issues so they can try and diffuse them
- Avoid taking fixed positions and blaming the other party
- Work together co-operatively – which sounds easy but I have seen customers and even suppliers take an arrogant and high handed attitude which almost invariably will doom the project or impair the quality of the service
- Ironically, despite my warning about litigation, keep your lawyers and commercial advisers close at hand and communication with their opposite numbers – this can diffuse many potentials disputes and misunderstandings
On of Charles Dickens characters said in Bleak House of the Jarndyce v Jarndyce case in the Chancery court it chronicles The Lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth.
Now I am a lawyer and I know things have greatly improved, but I still agree with the sage advice of another American President Abraham Lincoln Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
RSS Feed
