Although contracts document a consensual commercial relationship between two parties working together to achieve common or overlapping business goals, they are also enforceable legal instruments that can have potentially devastating effects on businesses due to the imposition of liability.
The legal and business personnel involved in the negotiation need to deal with this contradiction, and find a balance between achieving commercial objectives and safeguarding against legal risk. For repetitive contracts, an intelligent use of playbooks can help address some of the pain points in this process.
Collaboration is key
Effective collaboration between business requestors, procurement or sales personnel (the business) and supporting lawyers (Legal) can often be challenging. The business may perceive Legal as slow, unpredictable, pedantic, obstructive and out of touch with the realities of negotiations. Whereas Legal may feel that the business does not provide required information, is not adequately concerned about continuity and legal risk, fails to value the lawyer’s time and is unreasonable in its expectations of support.
Encouraging better collaboration between the business and Legal is vital and can be achieved by employing a well-designed playbook, which in turn can help improve:
- Use of data and metrics.
- Use of technology.
The objective of training is not just to transfer knowledge but to also drive helpful behavior. A playbook, together with appropriate training, can help the business and legal personnel involved in the negotiation distinguish between what remains the same across transactions and what is transaction-specific (see Blog post, Who needs a playbook anyway?)
All legal terms have implications for business. In some cases, Legal can train the business to help them understand their significance. However, where the legal terms are more complex or the implications more serious, the business will need to revert to Legal for confirmation or guidance. A playbook allows these lines to be drawn in advance, based on the current ability and awareness of the team. This provides direction and focus to the training efforts.
A playbook can explain where, when and why information or approvals are required from the business or Legal. This informs the information gathering exercise required at the beginning of contract review and for any specific change requests that arise during the negotiation. A playbook also allows the business and Legal to document, coordinate and discuss issues, and alter their negotiation strategy over time.
The creation of a playbook allows the business and Legal to establish a process for coordination, escalation and reporting during the negotiation. The business and Legal can rely on the playbook for the language, the resultant risk, and the approvals required, and process flows can be planned accordingly. Using the playbook provides:
- A framework for capturing lessons learnt for future use.
- An opportunity to build, hone and maintain skills within the team.
- Continuity, as team members leave and new members join the team.
Data and metrics
Playbooks can set the stage for companies to define the metrics and data that they need to use to enable greater visibility and control of issues. In relation to contracts, this usually comprises three elements:
- Work flow tracking. This allows work in progress to be identified at any point in time and also indicates how long that work has been in progress.
- Service level analysis. This shows how each of the internal and external participants (both within business and Legal) are performing or affecting the process in key areas such as responsiveness, efficiency or quality.
- Contract analytics. This focuses on the content of the contract and its importance in terms of business outcomes and legal risk management.
There are several factors to consider when making decisions about the use of technology to improve contract review. For example:
- Reporting requirements.
- Size and distribution of the team.
These decisions must be made in conjunction with planning the process. The chosen technology solution should be sufficiently flexible and customisable to accommodate all anticipated process flows, across both the business and Legal.
A well-designed playbook can improve collaboration and help customise the features offered by the technology. It can also empower a larger group of stakeholders beyond Legal to contribute to the required quantities of high-quality data to enable a successful Artificial Intelligence (AI) implementation.