Here are some (30) matters to be considered at each point in the lifecycle of a contract and any consequent dispute. They may not all be applicable but taking account of them may have considerable financial benefit.
When preparing contracts: getting in at the start
- Invest in objective review and thoroughness
- Understand financial status of counterparty
- Plan for dispute resolution procedures: escalation; expert determination; mediation. Consider the merits of arbitration.
- Address the details, tricky though they might be - such as defining functionality, preparing specifications and change control mechanisms. Do this-specifically and be upfront about it.
- Don’t park difficult issues into schedules to be agreed later between possibly uninterested representatives.
- Don’t cut and paste marketing material and in particular “marketing speak” into contracts
- Make sure standard terms are incorporated and preferably acknowledged. Indeed make sure everything important is signed and acknowledged.
When managing performance: planning for the unpredictable
- Know the potential fault lines in the business or transaction that might generate disputes: get to grips with the history and the people.
- Understand the reporting lines and concerns of your potential opponent. So far as possible try to “know the enemy”
- Plan for deadlines.
- Try to implement reviews and fend off problems before they become properly contentious.
- Put as much as possible in writing, however informal the context might require.
- Be in a position to defend a claim if possible. Keep retentions
- Shape the correspondence: care with e-mail and social media messaging. Keeping track of and understanding communication is one of the most costly exercises in dispute resolution.
When making decisions
- If possible, let someone who has had no emotional involvement deal with the matter. There will then be a more realistic prospect of cutting losses and stopping litigation in its tracks. There is no more dispensable luxury than a fight over a matter of principle.
- One of the many benefits of hindsight is that it shows that, on many occasions, it has proved cheaper to give up a legal battle than to achieve 100% success in Court but not recover all your costs.
When implementing plans
- Keep a document storage and retrieval system in place. There is considerable advantage in using a records and document management system which enables relatively straightforward access to the evidence underlying any dispute and will assist in preparing the witness statements which are increasingly necessary at an early stage.
- It is a common and understandable approach to delay or omit the search for certain documents and the preparation of detailed witness statements. Since strategic advantage can also be gained from front-loading, early preparation may save costs by increasing awareness of what costs will be involved.
When working with lawyers
- Involve them early and tell your lawyers everything: ask for what you don’t understand to be explained and make your concerns known.
- An effective empowered decision maker with access to and control of people and documents. Preferably not someone who is personally exposed.
- Understand that costs are incurred because time needs to be spent. Some lawyers’ time is irreducible and inevitable: some can be avoided by reduction of demands and allocation of resource or increased co-operation and responsiveness.
- Don’t treat your lawyers as the enemy: they are part of the team. Objective advice, and devil’s advocacy has a place. Be prepared for your assumptions to be challenged.
- Prepare for objective analysis. Any problems and the range of possible solutions to them must be analysed coldly, without emotion and in a wholly commercial way.
- A particular course of action may be attractive as a matter of principle but not as a financial investment. Losing face or losing a case are not necessarily important. The prospect of losing more money than necessary is more important.
- Use the structure planned and implemented: budgets; case information; on, reporting, billing payment: teamwork
- Avoid long, overpopulated meetings
- Deploy and require short reports
- Appreciate when a short-cut might be “good enough”
- Accept the need for front-loading of costs: investment now may save money in the future
- Be prepared to drive the matter forward: in the right circumstances - take the battle to the opposition.
All the above points are worth flagging but understand that several of these suggestions may involve inconsistency. Their detailed implementation will depend on the particular circumstances of the transaction or case. Nevertheless, aiming to give them active consideration will assist the process of effective dispute management and save substantial legal costs.