Conclusion
Security and opportunity are not necessarily mutually exclusive. Even while the authors of this chapter welcome a shift toward a paradigm of opportunity, that new emphasis need not come at the expense of a secure foundation of contractual agreement.
Our chapter has demonstrated how employing the principles and methods of PPL—especially simplification, visualization, and collaboration—can enhance security and opportunity simultaneously.Advancing security and opportunity together in contracting is possible because PPL methods can transcend what causes security and opportunity to appear as inherently opposed: the traditional divergence in outlook, goals, and language between law and business. Framing contract goals as prevailing in court or limiting legal damages will emphasize standardized, litigation-tested disclaimers and indemnification clauses—exactly those terms that IACCM finds to be high on the agendas of many legally-focused contracts negotiators. A moment's reflection, however, reveals how stifling of opportunities those clauses are likely to be. They suggest on their face a mentality of self-protection through rigidity, and veiled threats to bring the power of the law against a contract partner—hardly an environment that encourages innovation.
In contrast is the business mentality that seeks stronger (and typically longer- enduring) economic and personal relationships with another party. A relational focus will expect occasional disruptions in contractual implementation. This focus will also accept the need to be flexible and accommodating, based on a reservoir of trust and long-term mutual benefit.
Although a relational mentality may be uppermost in the minds of those who negotiate the real deal, it is not often expressed in the paper deal. When economic and relational intentions are formalized into legal contracts, everyday language is translated and communications norms are transformed.
The agreements suddenly become inaccessible to non-experts—those who must implement the agreement as well as those who may have negotiated the deal. Furthermore, communication expectations may be disrupted, or rendered self-protective or suspicious—all in the name of ensuring legally “the security of contracts.” Little wonder, then, that security and opportunity appear opposed to one another. Where business and legal language and communication styles are so strongly compartmentalized, security and opportunity are never part of a shared agenda.In every realm of law, PPL methods seek a healthy integration of stronger personal engagement, attention to factual environments, and legal possibilities. PPL aims not only to prevent legal disputes by better long-range planning and design, but also to enable parties to reach individual goals, mutual benefits, and new opportunities. PPL examines the systemic, patterned interactions of people to uncover and explain recurring points of friction or lost value. It then suggests interventions by which the revealed dissonance is resolved—and often transcended toward greater possibilities.
So also in our examination of contracting: diagnosis of traditional patterns reveals lost value through failure of adequate communication, which in turn is caused by an exaggerated and unnecessary separation of business and legal professionals. The “treatment” suggested in this chapter is simplification and visualization of contracting language, plus the creation of collaborative structures and practices. If implemented, these PPL interventions may enhance security of agreements through greater understanding, flexibility and trust. Simultaneously, they can facilitate collaborative refinements and new business opportunities for each contracting partner.
Liquid Legal Context
By Dr. Dierk Schindler, Dr. Roger Strathausen, Kai Jacob
Haapio and Barton translate the sometimes abstract concept of lawyers needing to be more proactive, rather than only preventive, more opportunity rather than risk focused into the core of a lawyer's work: Contracting.
They pick up the growing demand on lawyers to view contracts less as a legal tool, but rather as a business tool. They then take us on a journey what contract drafting with the mindset of a business enabler can look like. While stating clearly that contracts today are centered (sometimes purely) around meeting legal standards, the authors leave no doubt that they are not making a case to sacrifice enforceability for the benefit of speed or ease of doing business.Taking the “10 pitfalls” in contracting, that IACCM has established by research, and pointing to the massive business value erosion that comes with them, Haapio and Barton establish a few common denominators that underlie those pitfalls: the need for simplified language and less self-protective clauses; the need to shift to a balance between preventive law and proactive law and thereby towards business friendly contracting.
Yet, what are the specific levers to pull? First, simplification is being called out and Haapio and Barton start with a call to action that lawyers should view themselves as designers who create rather a business tool than a contract. Second, visualization, as a technique to be used in contracts, aiming at making key information accessible to business stakeholders in an efficient way. Third, collaboration, meaning the simple idea that parties to a contract are better off thinking of themselves and acting as partners, rather than as adversaries.
As Haapio and Barton then point to very practical means of moving towards and implementing such a new way of contracting, it again becomes clear how interrelated the many aspects of the transformation in the legal industry are. Legal tech is the key to rise above the budget and efficiency pressure; at the same time it is the enabler to gain metrics that make a KPI-based performance management possible. In sum, this—when enabled by a professional legal operations function—allows for a truly new profile of a lawyer, who then must bring very different skills to the table than traditionally sought for.
Freeing the lawyer from the ghosts of the past will create space to embrace new concepts around business enablement—like simplification, visualization and collaboration in contracting.References
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