Devant Limited

NEW BLOG!

2010-10-10T12:41:00.000-07:00

Please head on over to our new Devant blog by **CLICKING HERE**

Healthier commercial relationships start with healthier business people!

2010-08-18T02:07:00.000-07:00

In a few short weeks, the good people of Swallowfield, a village a mile along the road from our office in Riseley, will be hosting the first Swallowfield 10 + 3. This is a family-friendly, off-road 3k fun-run, together with a more competitive 10k road race.

So why is Devant involved?

In the shadowy land of alternative realities (i.e. life outside the office!) my alter-ego is Tiff the Beaver Leader. This means that every Monday evening, I am responsible for the entertainment and Scouting education of a bunch of 6 and 7 year-olds, preparing them for Cubs and eventually Scouts. It's great fun, and a fantastic excuse to indulge in activities like igloo-building, making nettle soup, and hiking in the dark to see the stars...

Like most voluntary organisations, Scouting is cash-strapped, and 1st Swallowfield Scout Group is no exception. So the Swallowfield 10 + 3 is intended as a major fund raiser for the group.

I'm thrilled to be able to sponsor the event (we'll be paying for your goody-bag, if you come along and run!). If you've ever fancied yourself as a potential Seb Coe, sign up for the 3k fun run. Or if you're a seasoned runner, the 10k might be more your thing. Either way, it would be fab to see you there!

A Bit of a 'Do'

2010-07-08T05:50:00.000-07:00

Last Thursday, 1st July, we celebrated our office move with a party at our new premises. We had a great turnout, and there was a fabulous buzz as new contacts were made, wine was drunk and interesting discussions were had by all.

Our client and guest speaker, Neal Gandhi of QuickStart Global, delivered a rousing call to action for those of us based in the UK. Our unique position on the Greenwich timeline gives us access to both hemispheres, which Neal identifies as a key strength of the UK as a centre of global business.

Early the following morning (when we'd just finished clearing up the empties!) an email popped into my inbox from client Alan 'Brand' Williamson. He'd taken pictures during the evening, and linked them into a funky video, complete with husky French soundtrack - click here to enjoy the fun.

We were also lucky to have my wonderful husband, Simon, of Hyde End Studios, taking some great images of the guests during the evening.

Pastures new!

2010-06-07T04:14:00.000-07:00

On Friday 4th June, I had the opportunity to live out my fantasy as 'Nessa from "Gavin and Stacey". In the driver's seat of our rented truck, I pounded the lanes between Spencer's Wood and Riseley ferrying furniture from the old office to the new.

With the windows open I could see the appeal of the trucking life - even if our truck was rather smaller than the one ably piloted by 'Nessa on the BBC. Hefting desks and boxes of files up and down stairs was less appealing, but left us all with a sense of great satisfaction at the end of the day.

It's nearly three years since we moved out of my front room and into our little offices on Hyde End Road. That was a huge leap of faith, but the last few years have shown that it was a good move. The business has gone from strength to strength, and when we realised that the return of a member of staff from maternity leave would require us to install "bunk desks", a new office seemed like a good idea!

The new premises are a couple of miles further south Junction 11 of the M4, in the tranquil village of Riseley. Essentially, make for the old office but don't turn down Hyde End Road - just carry on until you get to Riseley Business Park. If you pass The Bull (our new local pub!), you've gone too far.

So what's so exciting about the new office? Apart from the acres of space (here it is, before the desks arrived)

to support our challenging five year growth plan, we also have the luxury of our own training room. Seating 10 in comfort, we will now be able to deliver commercial contract and negotiation workshops from our very own premises. A separate meeting room (here it is in all its glory!)

- gives us ample space for the breakout sessions on our negotiation workshop, and a little kitchen facilitates timely breaks.

Add to that our proximity to open countryside for some lunchtime walks, and a friendly landlord serving great 'pub grub' just across the road, and I think we'll be very happy here!

To celebrate our move, and launch some of the new services currently in the pipeline, we're having a 'bit of a do' on Thursday 1st July, from 6pm - 8pm. Invites are going in the post today, so if you haven't received yours soon, and would like to join us, please drop me a line - tiffany.kemp@devant.co.uk.

BSkyB and EDS: When overcommitment comes home to roost

2010-02-02T03:28:00.000-08:00

The case of BSkyB and EDS, decided last month in an English court, illustrates the perils of making promises you can't keep. The traditional "I'll catch 'em, you skin 'em" approach of sales teams, in which promises are given and representations are made during the sales process, only for them to be broken during the delivery phase, has landed EDS with a potential bill of £70million for costs, and damages somewhere between £200million and £700million.

The key issue in this case, which prevented EDS from being able to rely on its limit of liability clause, was that BSkyB was able to demonstrate that EDS had lied during the sales process, and that had it not lied, the contract would have been awarded to PwC.

Making claims that it knew to be untrue, specifically about its capability to deliver the project on time, was EDS's undoing. Had this not been proven, EDS would have been able to limit its liability to that set out in the contract, of £30million. It is now the job of HP, EDS's new owner, to push for an appeal.

What does this mean to you? Nothing new, if you exercise caution during the sales process, and are confident that your sales team steer clear of unfounded hyperbole. But if your organisation is ever tempted to say "Yes, we can!" when it is thinking "Well, we might be able to, with a following wind and favourable planetary alignment...", then it should carefully consider the consequences of failure. Although the huge costs and complexity of this case make it unlikely that other clients of failed projects will be rushing to follow in BSkyB's footsteps, the potential of unlimited liability should be sufficient to make vendors think twice before making representations that they are not truly confident in.

The Curse of the Conscience

2009-06-24T07:45:00.001-07:00

Oh dear, I've done it again. Talked myself out of work, that is.

One of the wonderful things about Devant is that we get to talk to all sorts of interesting business people, at many different stages of their business. This means that some of them will be new startups, with no cash, while others will be medium-sized companies having to manage sizeable contracts and cashflow.

Because our objective with all of these companies is to develop lasting commercial relationships, I find myself advising some of them that they really shouldn't be spending money on their contracts right now. When it's clear that what the business needs most is clients, not contracts, and that the risk of everything going wrong (which would be addressed by a contract) is smaller than the risk of going under because of even our modest bills, I feel duty bound to point this out.

Which is why I've just finished a phone call with a lovely lady, whose business is destined to be very successful, in which I've suggested that for now, she puts together a simple letter setting out what she will deliver, and the basis for payment. When the clients (and the cash) flood in, and her risk increases along with the quantities of both, we can look at sorting out her Ts & Cs. In the mean time, I hope I've given her enough pointers to keep her out of trouble.

Eventually, if cosmic karma is doing its bit (!), we'll talk again - and we'll be able to help her business grow and protect against risks, through some really fab terms and conditions.

I know this approach might not be the most commercial - any lawyers reading this will doubtless be thinking 'Take the money now!!', and composing their scare stories to ensure that any such client visiting them is too frightened to venture forth without a contract. But I believe ours is the right approach in the long run. Indeed, the freedom to be able to give this sort of advice - pragmatic, based on a realistic assessment of the risks, issues and benefits - is one of the joys of being a commercial contracts consultancy and not a law firm.

Twitter - my mid-life crisis?

2009-06-23T11:59:00.000-07:00

Last week I turned 40. I have to say I'm quite delighted with my new age. There is bound to be a religious cult somewhere that bases its beliefs on numerology, but for me, some numbers just have a happier resonance. Thirty nine = 3 x 13, which is just not a good vibe.

Forty, on the other hand, is very neat. It's well groomed and rounded... I like it.

I don't know whether my finally caving in to pressure to set up a Twitter account is linked to my new status as a 40-something. It may be just that I feel the tiny character count allowed for 'tweets' will encourage me to communicate with the world more frequently than my blog. If you'd like see whether it's worked (and possibly to laugh at my efforts...) you can find me by clicking here.

Commissioning for Change

2009-05-22T12:57:00.000-07:00

Last week's National Young People's Commissioning Forum, at the Emirates stadium in London, provided an opportunity for the voluntary sector and local Government and other commissioning bodies to share ideas about how to improve the commissioning process.

For those not familiar with the language of the 'third sector' (i.e. neither commercial nor state), 'commissioning' is the term used for the acquisition of services from charities and voluntary organisations by the State. One of the presentations posed the question 'What is Commissioning?', offering a choice of answers including 'The same as procurement!', and indicating that it is far from widely understood, even in this sector.

In essence, when services are 'commissioned', as opposed to 'purchased', the service provider should play a much more active part in the specification of how the service should be delivered, and should be viewed more as a partner in delivery than simply as a 'supplier'.

This is somewhat akin to the 'partnership' models that are often trumpeted by commercial organisations when they are launched, and then quietly forgotten when the good intentions have turned to bickering. There were, however, success stories among the tales of challenges and problems. In particular, one council's Children and Youth Services department talked of the excellent relationship that they had established with a third-sector service provider, developing through honest and fair-minded dialogue that enabled them to work through the inevitable upsets.

The chairperson, Fran Pollard of Catch22, did an excellent job of steering us through the debate about what made good commissioning happen, and how to avoid the pitfalls that had claimed some projects. The breakout groups, a central focus of the forum, provided ample spirited feedback.

It was clear that although none of the third sector participants wanted to alienate potential clients, there were some strong feelings about the way the sector has been treated in the past.

We at Devant have seen many examples of onerous contracts, such as those requiring the provider to give extensive indemnities, where the contract value will barely cover the cost of delivery (assuming all goes perfectly to plan). This sort of indemnity is regularly rejected by commercial entities that stand to make a significant margin on a project, on the basis that it is an unfair allocation of risk. So how does that stack up with the 'commissioning' approach being encouraged by Government?

Not well, it appears.

It seems that although the third sector may suffer occasionally from being too nice to speak out, it is finally finding its voice. Let's hope Government is listening.

Negotiation planning - we know it works, so why don't we do it?

2009-05-22T12:29:00.000-07:00

On Tuesday's IACCM Negotiation Community of Interest call, which I had the pleasure of co-chairing with Jason Anderman of whichdraft.com, we discussed the use of tools and templates to assist with negotiation planning.

In a quick straw poll, it transpired that 50% of those on the call had such tools in their organisations (mainly large, multinational corporates). But only 50% of those actually used their tools regularly.

In a study that Jason recently undertook on behalf of a client, he identified that effective use of negotiation planning tools and processes delivered a 64% improvement in efficiency. That is, on average the negotiations that took place using the tools were concluded in less than half the time of those in the control group, and delivered outcomes that more closely matched the objectives initially set for them.

This study provides a useful evidential basis for a belief long-held by those of us who consider ourselves to be negotiating professionals, that structured planning delivers better outcomes in less time. However, it also provides an unexpected illustration of the old chestnut that we humans don't always do what we know to be good for us. Despite the overwhelming evidence supporting the use of process and templates, the organisation in question decided not to roll them out more widely. Why?

Probably for the same reason that few of us meticulously plan and manage our time, and consequently many of us fail to achieve our longed-for work-life balance. The same reason that, despite the irrefutable evidence that it causes ill-health and contributes to early, painful deaths, millions of sane, intelligent adults continue to smoke. The same reason that I finished my healthy chicken, asparagus and baked potato supper with a fairy cake left over by my children.

Perhaps because humans, despite our longing for order, process improvement and efficiency, seem naturally inclined to chaos. Let's hope the benefits of negotiation planning can help us overcome our chaotic tendencies and bring a little civilisation to our business lives.

Tackling the Profit Munchers

2009-05-01T07:12:00.000-07:00

This morning we had a great session at Surrey Enterprise Hub (soon to become an Innovation and Growth Team) in Guildford. The entrepreneurs who attended our breakfast workshop were all keen to learn new hints and tips to help them focus on building profitable relationships and avoid contract clauses that would munch away at their margins!

Everyone engaged actively in our workshop activity, achieving an impressive amount in a limited amount of time and leading to a very lively and interactive session.

One key learning point from the session was the importance of clearly defined client responsibilities, and the potential for making your own service more cost-effective by getting the client to deliver parts of it themselves! At a time when cost-reduction is all important, this is a useful tool for reducing your price without reducing the total value of deliverables to the client. In particular, using their administrative resources to perform routine research is a great way to cut your costs without cutting quality.

Liquidated Damages in an International Context

2009-03-30T12:37:00.000-07:00

In the professional contracting world, we all agree that under English law 'penalties' are a bad thing, while 'liquidated damages' can be a fair and reasonable way to pre-estimate the losses that will flow from a particular breach.

Last week I spent two days at a Falconbury training event, looking at damages and liabilities in international commercial agreements. This time I was being trained, rather than delivering the training (yes, we need CPD too!), and found the session an interesting update. As you'd expect, the penalties vs. liquidated damages discussion was lively and challenging.

The many lawyers present from civil law jurisdictions (who outnumbered those of us from England by about 3:1) couldn't see the problem with penalties agreed between parties of equal bargaining power. The drafting gymnastics required to ensure your LDs were not interpreted as penalties seemed to them to be a bit unnecessary. I can see their point: after all, one of the most useful applications of LDs is when we really don't know what the potential damages flowing from a breach might be, and when we expect them to be really difficult to prove in any event. They can be very useful to the party giving the LDs though - although the likelihood of having to pay out is higher with LDs than with having to seek damages through the Courts, the overall amount of damages could be considerably lower. So don't necessarily push back too hard if you're asked for LDs in a negotiation.

Today, I encountered an interesting response from a US lawyer during a negotiation about a clause in which I'd specified some liquidated damages for a particular breach. This lawyer argued that in his organisation, there was a huge prejudice against LDs, and that certain jurisdictions in the US considered them to be punative damages and would not enforce them. My understanding had been that the US was the home of the punative damage - and that penalties were widely accepted there. This just serves to emphasise that when considering foreign jurisdictions which follow a state-based legal system (including Switzerland) we really have to look not just at the federal law but at the local specifics too.

No more mister nice guy?

2009-03-16T05:21:00.000-07:00

Tough economic times affect different businesses in different ways. Much like people, businesses under stress either embrace collaboration and adopt a 'we're all in it together' mentality to ensure they and their clients and suppliers all make it through - or they retrench along 'every man for himself' lines.

Our new poll is aimed at getting a view on how the current climate is affecting your negotiating outlook. Are you fighting harder before giving up any concessions, making payment terms shorter and penalties bigger? After all, cash flow really matters right now, more than ever before.

Or do you take the approach that companies that support their clients/suppliers during the downturn will be best placed to take advantage of the upturn when it (eventually) arrives?

Click your choice in the poll, and we'll revisit this topic in a few weeks to see what impact the recession is having on our negotiating styles.

Recording Negotiations: good use of technology, or limiting creativity?

2009-01-16T04:58:00.000-08:00

In December we polled visitors to this blog to see whether they thought recording of telephone negotiations was a good idea. The reason behind the question was that one of our clients offers a nifty call recording service, and we were considering whether this would be a useful value-add for our clients, when we negotiate on their behalf.

The poll was overwhelmingly in favour of recording.

My first instinct upon considering this question was that yes, recording phone negotiations was a good thing - after all, there is nothing more frustrating than working through an hour's contract negotiation, agreeing a number of key points, only to find when you send the updated contract for the client's review that they reject all the points you thought you'd agreed.

Then my mind wandered in the direction of Shrodinger's cat - you remember, the one where a number of possible outcomes (dead cat/alive cat!) co-exist simultaneously, until the point at which the box is opened and we see whether the cat is actually alive or dead.

This thought-experiment made me consider whether the 'observation' of the negotiation (by the recording equipment) would make the parties take a more entrenched view than they would take if the negotiation was unrecorded. In the unrecorded world (Shrodinger's 'closed box'), all possibilities are up for discussion, however creative and strange they may be. This creative space can be extremely useful in enabling the parties to explore alternative means of meeting both of their requirements in a novel way.

Would the fact that the discussion was being recorded inhibit a party's willingness to explore such alternatives? Would the simple fact of 'observation' affect the outcome, as in the world of quantum physics?

I'd be really interested in any research or experience that our readers may have had - if you have thoughts on this topic, please do email me or publish a comment on the blog. In the mean time, I think we'll offer this service and start collecting some data of our own.

London Hilton Hosts Devant Masterclass

2008-12-01T14:01:00.000-08:00

We were delighted with the turnout for today's masterclass on 'Empowering Sales'. Our objective was to illustrate how encouraging sales staff to engage clients in discussions about key contractual issues, early on in the sales process, would result in shorter sales cycles and more profitable deals.

Contracts are not generally the favourite discussion topic of sales people, especially not when they're trying to close a complex and high value sale. Instead, they tend to be left as long as possible until the deal is more or less done. The consequence? If any contractual concessions have to be made, there is little opportunity to mitigate the extra risk with increased cash or better terms. And any contractual stumbling blocks can hold the sales person hostage, pitting them against their own legal team. We've all been in the situation where the Sales Director or CEO is saying 'Just close the deal - today!'. Unfortunately for many, this results in making concessions on the contract terms just to get the deal signed quickly - not the ideal negotiating position.

Our masterclass looked at the issues that often prevent early engagement on the contractual side, and how to tackle them. We had a limited time to address a large and complex area, but feedback indicated that it was a useful session.

Kevin Bean, Commercial Director, Fujitsu, said “Devant translate potentially complex contractual concepts in an accessible and commercially practical manner with a particular emphasis on where the focus should be when communicating with the customer to ensure a profitable and workable deal is achieved for all.”

As we were oversubscribed for this session we have opened up another date in January - let Bryce know if you'd like to come along and he'll send you the details.

Entrepreneurial Spirit Lives through the Downturn

2008-11-13T13:41:00.000-08:00

Today's Contract Clinic at Surrey Enterprise Hub, the SEEDA-sponsored organisation dedicated to supporting high-growth young businesses, was a refreshing blast of positivity.

During a Clinic, each company has a one-hour session during which they set out their commercial contract issues or opportunities and Devant works with them to find possible ways forward. It's a great opportunity for the companies to get some high-quality contractual advice and for us at Devant to meet some exciting young businesses. This Clinic showed that despite the market doldrums, entrepreneurial spirit is alive and kicking.

One of the impressive new companies to attend was i-Stylista. Their innovative online style guru service allows ordinary women to benefit from expert stylist advice, to find clothes that really suit them without hours of trawling the shops. In a market downturn, when every penny counts, a site that helps you to get best value from your clothing budget seems destined to succeed.

IACCM EMEA 2008

2008-09-25T13:48:00.000-07:00

The annual IACCM EMEA Conference is always a stimulating affair, and this year was no different. A key discussion topic at the Academic Symposium was Proactive Law, and the contribution it can make to improving commercial relationships. This is a topic very close to our hearts at Devant, and we are enthusiastic supporters of the Proactive Law movement.

If you're new to Proactive Law, it's essentially the practice of contracting proactively with the objective of increasing the probability of positive outcomes of our commercial relationships, rather than just focusing on covering corporate bottoms in the event that things go wrong. This is a key foundation stone of Devant's approach to contracts - while it's good to know that you're protected in the event of failure, it's much better to avoid things going wrong in the first place.

Take a look at the Nordic School for Proactive Law's web site if you're interested in learning more. I believe that this is the only sensible way forward for the legal profession - certainly, those lawyers that we work with, and encounter in our working lives, are working hard to add value by being more than a doom-mongering 'sales prevention squad'.

The other big glimmer of hope at this year's IACCM conference was the 'small is beautiful' message from Proctor and Gamble. They have been working for several years to pare down their many different sets of terms into a small number of simple documents. Their main purchasing terms are now a mere 15 pages - down from 50 before! The challenge, they said, was identifying the terms that were key to these commercial relationships and stripping out the unnecessary. They also separated out the provisions that belonged properly in appendices, such as quality control processes, so that these could be managed by those with skill and expertise in those particular areas.

It's great to feel that we are at the forefront of commercial contracting, here at Devant. We have been working since our inception to ensure that the terms we develop for our clients are practical and focussed on the real needs of the relationship, rather than simply gluing together large chunks of 'boilerplate' and changing the names!

End of the Rainbow

2008-09-15T11:36:00.000-07:00

This weekend my husband and I made our annual pilgrimage to Larmer Tree Gardens in Dorset for the End of the Road festival. It's the one weekend in the year when we leave behind the children, the dog and the ducks to chill out as foot-loose grown-ups!

For the first time in the festival's short history, it was raining on Friday when we arrived at the site. Luckily our tent is pitched flysheet-first, so we were able to quickly put the flysheet up and push all of our increasingly soggy kit underneath. And I, in my waterproofs, had the task of putting the in pegs while Simon sorted out the inner tent.

I guess everything's relative, but after a hectic week of drafting and negotiation the process of pushing tent pegs into the soft, fragrant ground, while the rain poured down fit to float an ark, was blissfully relaxing. Then, as if to reward my hard work, the sun came out on a distant hill and created a fabulous double rainbow!

The rest of the weekend was sunny and warm but the initial deluge meant that we were sliding around in mud underfoot. Festival professionals will say that's all part of the fun - and the small boy who was wallowing in a deep puddle of silky mud, until there was no boy-coloured skin left showing, certainly seemed to be having a great time.

Among the bands to grace our earbuds was the glorious Richard Hawley. His double-bass player, Colin, was captured here by my talented husband...

So here I am, grubby but relaxed, back at my computer. And ready for more contracts and negotiations!

The end of shrink-wrap terms?

2008-08-12T14:22:00.000-07:00

Our clients and delegates are very familiar with Devant's 'No Small Print' policy. Our philosophy is that if you would like your customers to comply with your terms, you should do everything you can to make the terms easy to read and understand, and to ensure that your clients read them before entering into a relationships with you.

The antithesis of this is the 'shrink-wrapped contract' or the 'shrink-click terms' when buying online. This is what you get when you sign up for a new online service, or buy off-the-shelf software, and your use of the service/software is deemed to indicate your acceptance of the terms and conditions.

Devant has been working with its clients for years to help them push back the tide in this area, and it seems that (in the US at least) legal opinion is now catching up with us. Jennifer Granick, Executive Director of the Stanford Law School, highlights two recent US court cases where the terms of such shrink-wrapped contracts have been overturned.

One of the cases Jennifer references in her article illustrates the risk of terms that the vendor can amend unilaterally on their website. From a logical point of view, most of us can see that it is difficult to comply with a contract if its terms have changed while we weren't looking. Given that one of the key principles of English contract law is that there should be a 'meeting of minds' between the contracting parties, it's hard to see how such unilateral contract amendments could possibly be enforced.

So far, that hasn't stopped many web-based businesses from operating on this basis. Maybe these cases will change things for the better...

Hub of Activity

2008-05-20T14:07:00.000-07:00

Today we were delighted to be running another Contracts Clinic for the Surrey Enterprise Hub in Guildford.

The Hub works with young and growing technology companies, offering them support and mentoring to reach their true potential. Devant Contract Clinics are now an established part of the Hub programme, and usually have a waiting list to attend.

The aim of the Clinics is to give each company an hour in which to discuss the commercial contractual issues that are keeping them awake at night, and see if we can offer some practical solutions. It's a great way for us to meet lots of interesting new companies in a short space of time, but as you can imagine, it's pretty intense. In theory we're supposed to have a 15 min break between clients, but in our quest to help solve problems this tends to evaporate!

One of the delights of working with the Hub is seeing so many talented people grow in confidence and ability as their businesses develop. Companies that we met as 'start-ups' at clinics a couple of years ago are now employing significant numbers of staff and making a real impact on the market.

If you're a high-growth young company in the South East, I thoroughly recommend that you investigate the Hubs near you. Take a look at the SEEDA web site and see how you can benefit from the community of expertise and support that they offer.

Delivering a Great Breakfast!

2008-05-14T13:28:00.000-07:00

This morning was an early start. I was invited by Sally Albin of Thames Valley Chamber of Commerce to give a breakfast seminar at Mya Lacarte in Caversham, and found myself at an unfeasibly early hour in the Waitrose car park gathering projector and laptop.

'Doing Deals that Deliver' was the subject of the seminar, and judging by the reception, it was a topic close to the audience's hearts.

All of us have been in situations where we feel that we and our client/supplier/business partner are pulling in opposite directions. It's so easy to charge into new business relationships with our own objectives at the forefront, only for things to go pear-shaped down the line.

The key to a deal that delivers what both parties expect is in firstly being clear about what each of you wants from the deal, and secondly ensuring that both are mutually compatible. If you are focussed on finding a beta site for your funkiest new product, while your client wants a trouble-free and quick implementation, you are destined for trouble. But if you find a client who doesn't mind the odd hiccup in order to secure a good price and steal a march on the competition, you could be on to a winning deal.

Among the Thames Valley Chamber audience were several solicitors, including one specialising in divorce. Interestingly, she suggested that this was a key issue in many marriage breakdowns - differing objectives that neither party had discussed beforehand.

I'm not suggesting that Devant negotiation training will ensure long and happy marriages, but delivering great long term relationships is what we're all about. So who knows - maybe a new market will open up for pre-marital negotiation training!

Spring Break

2008-04-22T08:37:00.000-07:00

School Easter holidays came late this year, and, strangely, started two weeks after Easter! The Kemp family set off to the Gulf Coast of Florida for a fortnight for some much needed R&R. Hurrah!

The wonder of the iPhone meant that I was able to keep an eye on the business from the Gulf of Mexico - and the wonder of my team meant that I didn't really need to. A perfect combination.

The pictures were taken by my husband, Simon.

Now, back at work, I'm full of beans and looking forward to a busy Summer. And judging by my inbox, I won't be disappointed!

Managing Risk in Complex Collaborative Relationships

2008-03-27T03:01:00.000-07:00

Last Wednesday I attended an IACCM seminar 'Risk and Compliance' at the Baker and McKenzie offices in London. The session centered around the way in which lawyers approach risk and seek to protect their clients/companies.

The IACCM's 'Top Ten Negotiated Terms' survey highlighted indemnities and limits of liability as the main issues in today's contract negotiation, which suggests that we are still focussing on limiting our liability in the event that things go wrong, rather than preventing them going wrong in the first place. See the previous post on Preventive Law for more thoughts on this topic.

The seminar looked at how to get lawyers taking a more pro-active approach to contract structure and negotiation and, if I'm honest, didn't seem to have much in the way of answers. I left feeling vaguely unsatisfied, and convinced that a better approach should exist somewhere.

Yesterday we held the first joint workshop in Helsinki for Collaborative Contracting in R&D projects, and this topic was hot on the agenda. Interestingly, the most practical solution to this very modern problem was a very old-fashioned one - trust. It seems that in an increasingly complex world, rather than trying to legislate for everything in huge and unwieldy contracts (and failing), the alternative is to contract firmly only for the core deliverables and have a much looser provision for the 'known unknowns' (thanks, Mr Rumsfeld).

This mechanism requires a foundation of trust, which will be established over a previous working relationship, and also requires that the parties are both motivated by the same outcomes (albeit for different reasons). And it is structuring the deal so that it rewards good behaviour for both parties that is the real challenge.

As always, all thoughts and comments on this topic will be appreciated!

Why Contracts aren't in Plain English

2008-03-10T07:06:00.000-07:00

During our recent Foundations of Commercial Contracts workshop a delegate asked why contracts used such tortuous phrases as 'for the avoidance of doubt' and 'notwithstanding the foregoing'. These phrases, he suggested, added to the popular misconception that contracts are for the eyes of lawyers, and lawyers alone.

This is an interesting point, and one that we have considered in the past. You may be familiar with the 'Crystal Mark' for plain English, that can be awarded to documents considered by the awarding body to be written in clear, jargon-free language. It is possible (at some expense) to have a contract reviewed and granted a Crystal Mark, and we investigated this possibility for a client whose contracts were to be used in dealings with consumers.

The challenge facing us was evident from an examination of the Crystal Mark Conditions. These included the following:

"You must 'indemnify' us against any legal action connected with the document. (In other words, we have no legal liability in connection with the document.)"

While the words in the brackets sought to translate the legal provision into plain English, they are actually inaccurate in their translation. To explain exactly what an indemnity means would take rather more words than they have used. And therein lies the problem.

Although clarity in drafting is essential, particularly in order to make contracts accessible to technical and commercial people rather than just lawyers, there are occasions where a legal phrase or term is just the quickest and simplest way of communicating what we mean.

Let's take 'notwithstanding the foregoing' for example. Translated into plain English, this could be expressed as 'In the following circumstances you can ignore the previous clause, and replace it with this one.' Better? I don't know. I'd be very interested in your thoughts, as we are constantly working to make our contracts easier to read and more practical documents, without sacrificing their legal effectiveness.

In the mean time, we are working on a 'glossary of legalese' to offer some translations for these words and phrases. This will automatically be made available to all previous delegates on our Foundations of Commercial Contracts workshops, but if you haven't yet attended a workshop and you'd like to receive a copy e-mail me and I'll add you to the list.

Please sign here.

2008-02-21T05:26:00.000-08:00

Regular readers of this blog and Devant clients will know that we're really hot on the use of contracts to prevent companies and individuals from getting into disputes in the future, and to enable them to have productive commercial relationships from the start.

With this in mind, we work with our clients to help them structure great deals that benefit both parties, and to draft readable contracts that reflect their expectations. Recently, though, we've learned that we seem to be missing out one vital step - standing over our lovely clients and making sure they and their own customers/partners/fellow shareholders actually sign their agreements!

Examples of non-signing-induced trauma include:
- dispute over who owns which bits of a custom-developed website
- shareholder dispute leading to director resignation
- dispute over payment terms

...where all of these would have been agreed in black and white if the parties concerned had actually signed the contracts they'd negotiated. And they would now be getting on with running their businesses rather than wasting valuable effort resolving needless disputes.

Of course, there is an argument that even if un-signed, the last draft of the contract to be exchanged could be taken to represent the intention of the parties. But this does not give either party the concrete position that it would have had if signature had occurred - and in order to discover how much weight a Court would give to it, the parties have to actually sue each other. This is a step further than most would really like to go, and if the agreements had been signed the chances are that the party in the wrong wouldn't be trying to push their luck in the way they are now.

So I'm considering offering a new service - the "Signing Ceremony", where one of the Devant team will turn up with two copies of the contract for signature and a pen, and oversee their signature by both parties. Maybe we offer celebratory Champagne to seal the deal. Because getting those signatures is essential to being able to rely on the contract, particularly if you intend to use it to manage the relationship without wanting to go to Court to prove your point.

Helping "them" communicate with "us"

2008-02-05T07:16:00.000-08:00

There is a general perception that Government and public sector bodies do not understand the commercial world.

But the reality (as in so many cases) is rather different. During our recent programme of commercial contract and negotiation workshops for the Department of Work and Pensions, I've met some incredibly competent, bright and switched-on people. They're creative, pragmatic and surprisingly willing to see the world from a commercial viewpoint.

One of the exercises in the workshop splits the delegates into two teams - essentially a supplier and a buyer - and pits them against each other in a negotiation role play. Although there were lots of groans about doing role play, the delegates quickly got into the spirit of the thing. And those playing the part of the supplier rapidly picked up the issues that would be of concern to a company offering products or services to a Government organisation, and negotiated their corner eloquently and effectively.

The purpose of this post is not to flatter our client (although they are lovely!). The point I wanted to draw from these observations is that even non-commercial teams have people within them capable of developing good commercial skills, to the great benefit of their organisations and suppliers alike. There is a tendency to see buyers of services and products (particularly public sector or technical buyers) as "them", a group of beings quite different to "us", the suppliers. But with a little encouragement, "they" can learn "our" language, enabling both supplier and client to communicate their requirements more effectively and build more productive commercial relationships.

Sending senior (i.e. very busy!) non-commercial staff for training in contracts and negotiation in a commercial environment was not an obvious move, but illustrates a great deal of common sense on the part of the DWP. And I think it will pay huge dividends in the way these folks interact with the commercial entities that support their work on a daily basis, and the value that the Department (and, ultimately, the tax payer) realises from the various commercial relationships it enters into.

Electric Dreams

2008-02-01T10:22:00.000-08:00

Yesterday was a bit of a disaster at Devant towers. We, like several of the surrounding villages, experienced a power cut that started late morning and continued until 8.30pm. Although our laptops had a couple of hours' battery life, we were unable to send or receive email. Even the local mobile base station was out, so telephony was a challenge too.

I suppose we shouldn't be surprised at how dependent we are on those little moving electrons - in both our domestic and business lives. But it certainly made me glad that the age of the fully automated house hasn't arrived yet! It was quite romantic eating our fish and chips by candlelight, but being locked out of an electric house would have been quite another story...

All's back to normal today, and hopefully we've caught up with all of yesterday's emails. If you tried to call or to leave us a voicemail yesterday please do try again! Or you can always email me at tiffany.kemp@devant.co.uk.

Preventive Law

2008-01-21T09:58:00.000-08:00

Most people agree that it's better not to get sick in the first place, than to have to wheel in the antibiotics on a regular basis. Healthy eating, modest drinking and regular exercise all fall into the 'preventative medicine' category, and are familiar concepts to many of us.

But 'preventive law'? Does this mean jogging while you negotiate? Or 'exercising at the barre' rather than 'practicing at the bar'?

While you won't have encountered the phrase before on this blog, or on our web site, preventive law underpins Devant's entire commercial contract drafting and negotiation methodology. It's based on the concept that we'd rather keep you out of trouble in the first place, rather than having to help you negotiate yourself out of a dispute.

The idea is that by ensuring that everyone in the commercial relationship understands exactly what their obligations are under an agreement, and exactly what they can expect from it, there's a good chance of things going smoothly. So by doing things right from the start, we can prevent disputes further down the line.

This will be familiar ground for anyone who's attended one of our commercial contract training workshops, or even one of our free seminars - the evils of 'small print' feature large in our training presentations! After all, if the client can't actually read your terms, the chances of them complying with them have to be drastically reduced! And the probability of dispute and dissatisfaction are increased in direct proportion.

I've recently linked up with Helena Haapio and Linda Baines, two of the founder members of the ProActive ThinkTank of the International Association of Commercial and Contract Managers (IACCM). Helena and Linda are both highly experienced and enthusiastic proponents of Preventive Law - you can learn more by going to http://www.proactivelaw.org or visiting the web site of the National Center for Preventive Law at the California Western School of Law in San Diego at http://www.preventivelawyer.com/main/default.asp.

Keep in touch to see how Preventive Law will be adding more value to Devant Training and Commercial Management services in 2008.

Shiny new office!

2008-01-15T08:30:00.000-08:00

After many years of working from our own home offices, the Devant team finally has its very own, shiny and lovely little office. It's only a ten minute walk from home for me, and a slightly longer trip for Janine, Jan and Alison (well, there have to be some perks for being the boss!). This means that I can walk to work (good for the stress levels), and don't have to face traffic first thing.

The other joy of office life is having a lovely meeting room all of our very own so that we can discuss your contractual and negotiation issues in comfort over a nice cup of tea (very domestic!).

The office is in Spencers Wood, a village one mile South of M4 J11, so it's easy to get to.

There are some great walks over the fields nearby which I've been exploring at lunchtimes with Freddie, my enormous hound, who has his own basket in the corner of the office. So all in all, a very exciting start to 2008. I hope to be able to welcome you here soon!

Tiffany

Happy New Year!

2008-01-07T03:34:00.000-08:00

The last few months have been a whirlwind of new opportunities, great new clients and new projects for us at Devant. Our feet have scarcely touched the ground - so apologies for the lengthy gap in our blog, for those of you who notice these things ;0).

It seems that you are busily creating more (and more valuable) commercial relationships. The last half of 2007 saw a huge leap in the number of new clients approaching us to help them establish their partnering and reselling organisations overseas. Perhaps because so many of our clients are in the technology and services sectors, we haven't really seen much sign of the supposed global economic slowdown. Business is booming for our oil and gas clients, and we've also acquired a couple of new clients with innovative offerings for the toy sector. So life is far from dull, and I'm delighted to see so much economic activity and considered risk-taking.

My new year's resolution is to keep you up to date more regularly with what we've been up to here at Devant. There are a couple of press releases in the pipeline that I'm really excited about and will share with you soon. In the mean time, all the best for a fantastic 2008!

Tiffany

For better or for worse, for richer, for poorer...

2007-08-13T14:06:00.000-07:00

Marriage isn't the only kind of lasting relationship that consenting adults enter into these days. Joint ventures, equity capital investments, partnerships - business people are a sociable lot, and our optimism for the benefits to be gained from new commercial relationships seems limitless.

But although with marriage we may sacrifice common sense on the altar of love and instant attraction, in business this is rarely the route to riches. Imagine you were talking to your own children about their potential choice of life partner. What would you ask?

Are their intentions honourable? What do they bring to the relationship? Do their strengths balance your weaknesses, and vice-versa? Do you share the same goals? Do you have enough shared history and culture to be able to communicate effectively, while maintaining enough sense of difference to appreciate each other's contributions? Do you really trust them?

Of course it's always easier to give advice than to take it - but if you're considering entering into a new business partnership of some kind, run yourself through those same questions you'd ask your kids. And - the really scary bit - be prepared to act on your answers. Because there's more to due diligence than numbers.

Our new site is live!

2007-07-26T16:13:00.001-07:00

I just wanted to make a quick post to announce the launch of our new Devant web site. It's been a long time in its gestation, but I hope you'll like it. We've updated it to reflect more of our style and philosophy, so the general feel is more up-beat and personal.

We've also added a glorious sign-up button, so that if you want to be told when there are new articles to download, or special deals on training courses, you just need to leave your email address and we'll do the rest.

Oh soggy day...

2007-07-22T16:03:00.000-07:00

We didn't actually get flooded - unlike some of our less fortunate clients. The water was several inches higher on the outside of the office than the floor level on the inside, but mercifully it stayed outside and our lovely computers remained safe and dry.

Unfortunately the same could not be said of the car, which I managed to drown on my way to collect the children from school (which closed early because it, too, was flooded). I would like to extend my grateful thanks to John and the rest of the team at PP Construction Limted at the aptly named Deepwater in Swallowfield, who offered me shelter from the downpour, hot tea, and even (thanks again, John) a pair of dry golfing trousers to replace my sodden skirt.

My sojourn at PP Construction was brought to a peaceful end when the sun finally came out, and some of the chaps dug out the oars for the old tin boat in the yard. Yes, we rowed gently down the stream to safety, past my submerged car, with the sunlight glinting on the water. If it hadn't been for the fact that the stream was supposed to be a road, and I was supposed to be at work (with a nice, dry car in the drive), it really would have been a lovely way to spend a Friday afternoon.

Bacon and eggs

2007-07-16T15:23:00.000-07:00

Never volunteer. In the land of Cub Scouts, even the faintest hint that you might possibly be less than 100% averse to helping out is roughly akin to jumping up and down, waving your hands in the air and shouting 'Me!! Pick me!".

So there I was, at 6.30am on Saturday morning, struggling to light the urn in a damp marquee in Marlow while hoards of grubby Cubs stuck their heads through the tent flap to enquire whether the bacon was on yet. Friday had seen me trundling around Sainsbury's with a trolley full of 300 bread rolls, having already loaded the first two trolley-loads of groceries into the capacious boot of our Volvo estate. And that didn't even include the meat and veg, which were coming direct from the farm shop.

Although I spent most of the weekend in a tent, slaving over a hot camping stove, I must confess that I love Cub Camp. It's the combination of enthusiastic kids, just as happy to muck in with making packed lunches as they are to grapple with raft building, and hard-working parents, whose sense of humour never seems to fail them in the most trying of circumstances.

Not, of course, that I'd ever consider doing the catering again. At all. Ever. So don't go getting any ideas if you're reading this, Akela...

Better Buying

2007-06-29T15:06:00.000-07:00

As well as our scheduled Foundations of Commercial Contract workshop, this week has seen our first 'Better Buying' workshop, a customised event developed for one of our favourite training clients.

This was a great opportunity to look at negotiation from the other side of the fence. A while ago we did a big project for ntl, re-negotiating some of their software and support agreements. Our efforts delivered £1.25million of savings, and showed how much could be achieved with a bit of planning, preparation and creative thinking - all of which add up to ace negotiations!

So pulling together everything we'd learned from this exercise and other buy-side negotiations, with our extensive sell-side experience enabled us to create a cracking half-day workshop. It was a very intensive morning, but really helped the client to focus on what they needed to do to become more effective purchasers. And of course this will, in turn, help them become a more effective selling organisation, as they can pass on a share of their savings to their own customers while retaining the rest on the bottom line!

Well here's to you, Mrs Taylor!

2007-06-25T15:01:00.000-07:00

Last Saturday, we lost Alison Moss from the Devant team. Luckily for us, her successor - Alison Taylor - is just as fantastic!

Confused? For those of you who haven't been watching Alison's feverish preparations over the last few months, I'm delighted to announce that Saturday was the date of her wedding to Dave Taylor. So our Alison became Mrs Taylor and Dave became a very lucky man.

Congratulations, Alison and Dave! We all wish you a very long and happy life together.

Spreading the Message

2007-06-15T14:44:00.000-07:00

Our latest Marketing Strategy Meeting was hosted yesterday at the Institute of Directors in Reading by Rivercalm, our marketing folks. The venue was great - well run, and just a few minutes from the station. Quick tip - if you're driving to a meeting there, remember to call ahead and book your space in their secure underground car park!

The Devant team's marketing challenge for the next twelve months is how to spread the word about the importance of good commercial contract training in developing profitable business relationships. We talked around the issues that face companies of all sizes - and how it is that we expect folks to be able to explain contract terms when they've never received any useable training. There's a world of difference between a legal lecture (which, for most business people, is effective as a sedative but that's about all!) and good commercial contract training.

Of course I would say that, wouldn't I? But seriously, we do tend to get pretty evangelical about training because it's only when everyone in the business understands the impact of the contract structure on the success of a deal that the company's sales efforts can be translated into profit. It's so frustrating to see companies with fantastic sales teams and highly capable delivery folks allowing their margin to fall through the gaps between the two. This is a gap that can be plugged with some good training - on both the sales and the delivery side - so that more of the revenue from the deal makes it to the bottom line.

Mobile Miracles

2007-06-11T14:28:00.000-07:00

Last week I took a brief trip to Sydney. It was a holiday, of sorts - an opportunity to visit an old friend who'd just had her third baby, to provide some domestic support and get my share of baby cuddles!

It was wonderful to see my friend and her family, but the trip was also noteworthy for me as an experiment in truly mobile working. Thanks to the glory of the Macbook, which comes complete with built-in camera and wireless networking, I was able to video-chat with clients in the UK while my Australian hosts slept. During a stop-over in Singapore, my children were amazed to be able to see the buzz of Singapore airport in the background when I called them up for a quick i-chat. The other passengers were a bit bemused at me chatting to my computer, but I thought it was great.
We Devant folks do get some odd looks from clients when we whip out our Macs - they're usually associated more with graphic designers than contract specialists. But I love my Mac. It does all the usual PC stuff - just with a little more style ;0).

Strategies in the sunshine

2007-05-25T14:12:00.000-07:00

Yesterday's Constructive Negotiation Workshop at Wyvols Court in Swallowfield gloried in some fantastic sunshine. The breakout sessions, where the teams of delegates prepared for their role play exercises, took place on picnic tables scattered around the beautiful grounds - making it tougher than usual to get the teams back in to their negotiations!

One thing that I love about negotiation training is the way that people can surprise you. I was delighted to see how the quiet and softly spoken Heidi proved herself to be an ace negotiator, swiftly helping her adversaries to set themselves up for her perfect deal.

If you have a hot deal lined up, make sure you do your homework before you start negotiating - you never know when there might be a Heidi on the other side of the table!

To License, or to go it alone?

2007-05-22T13:28:00.000-07:00

This morning I was delighted to share a stage with Ashok Vaidya, an expert in technology development and commercialization, for the Surrey Enterprise Hub's Licensing and Negotiation Workshop. The audience comprised entrepreneurial businesses who are looking for the best way to grow their businesses, and generate profit from their innovations.

Ashok explained how licensing technology to a partner with the capacity to manufacture and sell your product can accelerate the speed of market penetration and result in rapid growth. The downside, as he pointed out, was that sharing the risk of manufacture and marketing also means sharing the rewards! Loss of control was identified as another key concern among the delegates, along with the tricky question of setting royalty levels.

We discussed a number of mechanisms for increasing our negotiating power before getting to grips with a potential licensing partner - essential if you're a small company negotiating with a larger manufacturing business! Over the last four years this has become one of our key challenges at Devant, and I guess we've become a bit fanatical about the benefits of working with smaller companies.

If you have some great technology and are looking for ways to commercialize it without giving away stacks of equity to venture capitalists, licensing could be the way forward. As always, give us a call (0118 988 9670) or drop us an email (info@devant.co.uk) if you'd like to talk through the pros and cons.

Who'd be a Bridesmaid?!!

2007-05-17T01:34:00.000-07:00

Regular readers will know that we at Devant are big fans of getting agreements set out clearly in writing to prevent misunderstandings. But even we were stunned by this contract prepared by a US bride for her bridesmaids! It rather makes the fun of dressing up pale into insignificance, doesn't it?!

*Bridesmaid’s Contract*

Hello my beautiful bridesmaids! Let me just say again how happy I am that you are going to be a part of my special day! Below are just a few guidelines for the wedding that I’d like you to review, please initial by each point, sign at the end and send back to me. Just want to make sure they’re aren’t any surprises! The planning bride is a happy bride!

Thanks a bunch! Love ya!

_____ My hair will remain at the length it is now or longer.

_____ I will not change my hair color without first consulting Katie and providing a sample photo or hair swatch for consideration.

_____ I will use Sally Hansen’s “Maximum Growth-Daily Nail Growth program” every day for the 4 months before the wedding day.

_____ I will not gain more than 4lbs from the weight I was when I was asked to be a bridesmaid.

_____ I swear to attend all showers, (lingerie, bridal & bachelorette) to arrive in a timely manner and do everything in my power to support and “be there” for the bride.

_____ I will purchase the David’s Bridal style # 81123 dress below in Latte/Champagne within 3 weeks of today.

______ I will NOT knowingly get pregnant without notifying the bride at least 4 months prior to the wedding so a suitable alternative can be found. I will also give my purchased bridesmaid dress to said alternative.

I do hereby swear that I will adhere to all of the above & other understood bridesmaid duties for the wedding on September 21, 2007
X_________________________
(sign, print and date)

A New Hub is Born!

2007-05-02T14:46:00.000-07:00

Yesterday it was my great pleasure to be invited as the inaugural speaker for the new programme of events run by the Thames Valley Enterprise Hub. The Thames Valley Enterprise Hub is funded by SEEDA, the South East England Development Agency, and exists to support growing businesses in the region. Yesterday's event was the first of those to combine the Hubs of Bracknell, Reading and Newbury, and an impressive number of Hub companies braved the M4 and the early start.

The subject of yesterday's seminar was 'the danger of assumptions', and this certainly seemed to resonate with the audience. It never ceases to amaze me how we can experience mis-understandings regularly with those we know very well (spouses for example!), and yet somehow still expect relative strangers to understand us completely, when we discuss structuring a new business deal.

There was an excellent level of interaction from the delegates, reflecting the highly innovative and entrepreneurial businesses that the Enterprise Hubs attract. My thanks to the Hub team (Susan Elliott, Tracey Sanderson and Ed Cooper) plus Stephen Dowling, who was instrumental in setting up the whole event, for giving me the opportunity to present to such an inspiring group.

The delegates at yesterday's event participated in a survey to identify the top five commercial contract issues for entrepreneurial businesses. We shall publish the results in due course - if you would like to participate in the survey,
contact us for details.

No snoring!

2007-04-27T06:48:00.000-07:00

Yesterday's Commercial Contracts workshop was a stimulating event, with a great set of delegates. We managed to maintain our unbroken "snooze free" record, even during the post-lunch session when the effects of the early start began to be felt. This might not sound like much, but those of you who have ever attended a legal briefing will know that legal terminology can have a seriously somnolent effect in the wrong hands!

I love Devant workshops. Because we limit the numbers, we are able to get to know each delegate during the course of the day and to learn about their business and commercial issues. The mixture of industry sectors often allows cross-fertilisation of ideas, enabling the spread of best-practice in commercial and contract management.

Our delegates yesterday were a particularly sharp bunch, with the highest performance yet in our Memory Game. This is a fun method we use to help delegates to remember the key contractual points to look for when reviewing or structuring a contract. As well as being entertaining, it helps delegates make the leap from being 'amateur contract reviewers' (who can read what is written down, and comment on it) to 'professional reviewers' (who can see what should be there, but isn't!).

So thanks to Darren, Janine, Kim, Sarah and Tony for your contributions and your enthusiasm. And thanks also to Simon, our photographer, who took some great images during the workshop. These will be appearing on our web site and publicity material in the near future - watch this space!

Keep out of trouble!

2007-04-18T05:54:00.000-07:00

Those of you who have ever tried to dig your company out of a hole caused by over-enthusiastic deal-making will appreciate that the stress, expense and legal headaches associated with this thankless exercise are best avoided.

Companies have crumbled, projects failed and margins evaporated - purely because the deal-maker was not aware of the risks they were exposing the business to when they shook hands on the golf course, or signed on the dotted line.

If you want to avoid the pitfalls of dodgy contracts and poorly structured deals, sign up now for our Commercial Contracts workshop on the 26th April - there are only a few places left, and it will be the most valuable day you've spend this year. Don't think you can spare the time out of the office? You can't afford not to!

CONTACT ME NOW to book your place.

A new Financial Year

2007-04-17T06:49:00.000-07:00

For many of us, April is the start of the new FY. The stress of wrapping up deals for the end of the previous FY is over, and for those who are involved on the financial side of the business, this is the time when all of those number must be crunched to find out how the company's performance looks on paper.

One of the great benefits of taking some time out at this time of year is that you can reflect on the successes and failures of the previous twelve months and see how best to target your efforts during the next year. I took a break over Easter to spend some time with my family, in Spain's Costa Blanca. The change of scene and of focus really helped to clear my mind, and has enabled me to look at Devant's future with a fresh outlook. We're now busy planning new training services that we can offer in the coming year - watch this space!

If you're keen to enhance your deal-structuring skills, to ensure that you hold on to more of your margins in the coming FY, sign up for our Commercial Contracts workshop on Thursday 26th April. There are a few spaces left, and some great deals available if you are able to attend.

You can share some of the highlights of the Costa Blanca by clicking on the slideshow below - great pictures, courtesy of my wonderful husband, Simon!

**CLICK HERE** to view

Leaking Umbrellas

2007-03-09T05:45:00.000-08:00

Over the past few months Devant has been assisting numerous clients in various aspects of subcontracting, often to one-man-band subcontractors. This is such a common situation that you’d expect everyone to be aware of the issues, but alas no.

Problems commonly arise from the commercial terms, as most subcontractors want to make it as hard as possible for the client to get rid of them yet want to be able to exit of their own free will with 5 minutes notice. However, issues also occur due to the demands of inland revenue legislation and IR35.

Unless you have a contract with the subcontractor that clearly establishes that they are not an employee, you could be liable for income tax and National Insurance Contributions for that person.

This isn’t as simple as just stating that they aren’t an employee, but stretches much further. For example:

• the subcontractor’s ability to provide a substitute worker
• the place of work and equipment used
• the nature of the subcontractor’s obligation to provide services

You also need to ensure that you both do actually operate in accordance with the contract, as the courts have a mixed response to workers who subsequently try to claim to be employees; some succeed and some don’t.

The implications for the ‘employer’ can go far beyond tax issues. If you are judged to have been acting as an employer, you could owe the worker holidays, sick pay and any other benefits to which they would have been entitled as an employee.

So where do the leaking umbrellas come in? Well, IR35 is a piece of legislation that centres on intermediaries. It aims to stop subcontractors using intermediaries, such as partnerships and service companies, as a means of avoiding tax, specifically income tax and NICs.

Some of these intermediaries or ‘umbrella’ companies suggest they can save a subcontractor money, represent them better than they would be as a self-employed sole trader and negotiate them better contracts. Yet we have seen contracts where a substantial monthly fee is paid by the subcontractor to be an employee of the umbrella company and yet the contract actually reduces their rights rather than improving them. It also often leaves the client with a contract signed by an intangible third person rather than the subcontractor with whom they are working.

Our advice to clients?
Take legal advice to ensure your subcontractor agreements work for you and protect you as far as possible.

Our advice to subcontractors?
Beware of leaking umbrellas. Make sure you fully understand the implications of your contracts before you sign and seek legal advice if you are unsure.

Contract Drafting for Beginners

2007-02-19T13:48:00.000-08:00

OK, so we all know how difficult it is to draft a good contract, don't we? Sometimes, absence of specialist help can prevent us from getting started, leaving us completely unprotected.

Well, dear reader, take heart. This weekend, my children successfully negotiated a deal that will earn them pocket money in exchange for some light domestic duties.When we'd struck our deal, my son said 'OK Mum, now we need to write the contract.'

Strange, I know, but that's what comes of having a mum who does what I do!

So how can the noble art of contract drafting be distilled to a level where a nine year old and a five year old can understand it? Simple, really (well, it would have to be, wouldn't it?!).

First, I explained the three critical questions that must be answered before you start:

1. who does what, when?
2. when do we get paid (and how much)?
3. what happens when things go wrong?

Then they set about answering these questions, one at a time. Under the first point they listed their respective tasks. Under the second, they set out how their pocket money was calculated, and what things could increase or decrease the amount paid to them. In the third, I asked what might go wrong with their tasks?

Albert, nine, is responsible for clearing the table after meals and loading the dishes in the dishwasher. 'What if the dishwasher's already full?' he asked.

'What do you think should happen?' I replied.

'I could stack the dishes on the side, or in the sink?' So, we added a provision saying exactly that. Evie, five, asked what happened when they had school lunches - did she have to set the table for all 100 school children? So we clarified that they only had to do their meal-time duties at home, although we thought it was a good idea if they offered to help when eating at a friend's house.

So there you go. Contract drafting for beginners. Answer the three questions above, and you'll be covering your most important bases. If you get stuck, ask your kids for some help - you'll find they're great at asking direct and probing questions that will enable you to get to the nub of things. And, if nothing else, it will give you a great basis for briefing your lawyer!

Personal Data: Off site, out of mind?

2007-02-09T03:40:00.000-08:00

Being connected to a call centre in Bangalore when you call your UK bank or insurance company no longer comes as a surprise, in our increasingly global economy. Similarly, hosting your marketing database on a server in the US, or signing up for an ASP service provided from Australia seems ‘business as usual’.

But if your activities mean that personal data capable of identifying individual people in the UK or elsewhere in the EU is accessible outside of the EU then you have responsibilities under the Data Protection Act 1998.

So what does ‘accessible’ mean?

It means that the data can be viewed, downloaded or processed:
• by other clients or members of the public on a web site;
• by your hosting provider; or
• by third parties providing software support or services

How can you ensure you are protecting personal data in accordance with the Act?

First, whether your data is being processed inside or outside the EU you need to have a contractual commitment from the offsite company that they will comply with the ‘Seventh Data Protection Principle’. This means that they will use appropriate physical and operational security measures to prevent unauthorised access to or usage of your data.

If the third party is outside the EU, you need to take extra precautions to protect personal data. There are a variety of measures that can be considered, depending on where they are and what business they're in. These include:

• obtaining explicit consent from each data subject to the transfer of their data outside the EU; and/or
• signing a ‘model contract’ with the third party, approved by the Information Commissioner, that commits them to certain data protection obligations; and/or
• getting the third party to subscribe to 'Safe Harbor' provisions, if they are in a regulated industry in the US.

There is little case law in this area, and each situation needs careful consideration on its merits. So if you’re considering off-shoring or outsourcing any part of your business, be sure to take advice before signing on the dotted line!

Light Bulbs

2007-01-23T08:50:00.000-08:00

This post is made by Alison Moss, Devant's new Commercial Contracts Advisor. We are delighted to welcome Alison to the team, and look forward to many future posts from her! - Tiffany
-----------------------------------------

I wish I had £1 for every Sales Manager, Commercial Manager or FD I’ve spoken to recently who’s said to me “I didn’t know that!” It would have bought me at least a few bottles of good wine over Christmas.

One of the many realisations I had when I joined Devant was the true limitation of most business people’s knowledge of commercial contracts. I’m speaking now as a sales manager who reviewed and negotiated on commercial contracts as a fundamental part of my job. I generally dealt with the commercial issues and consulted the retained solicitor about the legal stuff. It was the set standard procedure, but at huge cost to the company!

As business managers most of us have to deal with commercial contracts and they are frequently seen as a sales prevention tool. Because we have some understanding of the clauses and terms, we assume we can simply rely on the solicitor to spot any legal nasties. But what an opportunity we are missing.

- We could save money in the form of legal fees if we weren’t totally reliant on a solicitor.
- We could save time, and therefore money, by empowering our sales teams so that they aren’t totally reliant on us.
- We can change the focus of negotiations using contract terms and hence improve the power balance with customers or suppliers.
- We could give ourselves and our teams better credibility and confidence by truly understanding what the implications of a contract are.
- We could negotiate more commercially relevant contracts.
- We could do all this by gaining a better understanding of commercial contracts.

I have attended the Devant Commercial Contract Workshops and watched ‘the light bulb go on’ with business managers as well as experiencing it myself.

My one regret? That I didn’t have the benefit of these courses when I was a sales manager.

Is Negotiation the New Kung-Fu?

2007-01-09T12:40:00.000-08:00

As a young Engineering student I relished rock climbing and riding fast motorbikes and considered myself pretty robust. But when I briefly acquired a love-lorn stalker (!), I decided to add self-defence to my skillset.

I began learning Kung Fu and practiced my stance, punches, blocks and nifty moves. Doubtless, had I studied and trained hard for many years I would have been well equipped to counter any real-life adversary. But going to one class a week and practising sporadically in between, the only opponent I was ever going to beat was the one who moved slowly and telegraphed their moves well in advance. I’d developed enough skill to deal with a limited set of scenarios, but in a real-life situation I knew that my theoretical expertise would evaporate, and my best defence would be to run away!

So where does negotiation come in? Well it strikes me that much negotiation training available these days appeals to the King Fu student in all of us. It suggests that, with a day or two of training, we can learn new techniques that will render us invincible at the negotiating table. In reality, when we first encounter a client who doesn't "follow the script", we find ourselves high and dry.

Should we forget training? Absolutely not! But we should consider learning events that are biased towards rapid skills transfer and practical application, and followed up with focussed feedback and encouragement. Either that, or learn to run away, very fast!

A More Prosperous New Year!

2007-01-02T09:28:00.000-08:00

Welcome back to all of you who've taken a Christmas and/or New Year break, and I wish you a very happy and successful 2007!

Have you made any New Year's resolutions? I suspect that, in addition to getting fitter (this is the year that gym membership will REALLY earn it's keep!) many of you will have made New Year's resolutions that relate to being financially better off, and making your business more profitable.

To help you achieve the last two, I'd like to share with you a negotiating tactic used to great effect by my five year old daughter.

Yesterday we had a New Year's Party, and invited friends and relatives to join us for a celebration. It was also an opportunity to get some help eating all of the chocolate that we and the children had been given for Christmas! Young Evie kept making forays into the pile of chocolates in the centre of the table, each time our backs were turned. After my husband had told her "No more!!", she disappeared for five minutes and then returned.

"Please can I have three more chocolate shells?"

"Three!! No way!"

"Alright, can I just have two then?"

"No."

"But I've been very good..."

"OK, just one last shell..."

I don't suppose she ever expected to get more than one more chocolate, but if she'd have asked for one in the first place, my husband would certainly have sent her off empty handed!

In the world of business, asking for three times what you hope to get is not likely to boost your credibility (a concern not shared by the average chocoholic five year old!). But on the next proposal you put together, work out your price and then add an extra 10%. That 10% may well go unchallenged, in which case that's an extra chunk of pure profit you've added to the bottom line. And if you do end up negotiating - well, with a better starting point, your finishing point should be similarly improved.

America vs. The Rest of the World?

2006-12-14T14:17:00.000-08:00

A recent study by Indiana University, reported in yesterday’s Financial Times, concluded that in litigation between US and non-US companies, the non-US companies are more likely to lose, and likely to suffer bigger damages awards, than their American counterparts.

These findings are hardly surprising. Given that native companies will be more familiar with the legal system and have better access to high quality legal resources, we would expect them to come out better in a challenge from an overseas company. What is surprising is the degree of advantage that US companies seem to have, given that theirs is a Western legal system supposedly free of bias.

Some of our clients deal with companies in the Middle East, Asia and Eastern Europe, where they have concerns about the effectiveness and enforceability of contracts.

Now it seems as though the largest economy in the Western world must be added to the list of countries where a fair hearing for overseas companies cannot be guaranteed.

Trainer, train thyself!

2006-11-17T14:40:00.000-08:00

The problem with blogging is that if you miss a week or so, all of a sudden you find that loads of stuff has happened and your blog readers are quietly oblivious. So apologies for the long silence - life has been very, very busy in Devant over the last month, with more late nights than are healthy.

Where to start? Well first, a quick update on the progress of our Commercial Contract Training Workshops. Our last workshop (26th Oct) really inspired me. I met Rob Smith, of Victor Consulting ( www.victorconsulting.co.uk), who was the winner of our B2B Thames Valley 'Guess the Weight of the Contract competition. If you've ever wondered what all those obscure menu options on your Microsoft products actually do, wonder no more. Rob and his team have the expertise to make these products 'sing'. Well, not literally - although maybe with the right sound cards... ;0) Check them out to see what unexplored potential you have in your PC, and how they can help you get the most from your software investment!

This month also saw the launch of our new Training Resources area on the web site. Thanks to Alison, who invested many hours in preparing the sample clauses, this provides an invaluable resource to delegates. Each sample clause gives an explanation of what the clause is for, what it does and what a typical example looks like. It also identifies the other clauses that are linked, and should be considered together. After attending a workshop you'll receive an attendance certificate with your username and password granting you access. And as the materials are added to and updated, you automatically gain access to the updates and additions relevant to your workshop(s).

The next Foundations of Commercial Contract workshop is on Thursday 30th November - if you're interested, email me and I'll ask Jan to send you a .pdf brochure and some registration info.

And I finally managed to upload the latest podcast, about the importance of specifying exactly 'What are we delivering'. The quality of the audio isn't great, I'm afraid - I need to play with the microphone and Garageband on my beautiful new MacBook a bit more to optimise the levels. But hopefully it's clear enough for you to get the message!

What about the 'train thyself' of the title?

Well, I've spent most of the last two days at the annual conference of the International Association of Commercial and Contract Managers (IACCM) - find out more at www.iaccm.com. This was a great opportunity to hear some fantastic speakers at the very forefront of our profession, as well as to network with other commitment management professionals. 'Commitment Management' was the buzz-phrase of the conference, reflecting the change in perspective from the contract itself to the commitment it represents.

In the middle of today's conference session I made a dash through the downpour around Royal Ascot to Bearwood Lakes Golf Club. Not for a swift 9 holes, but to speak to the Thames Valley Chamber of Commerce's SHE plc group. It was a great honour to be able to talk with such a dynamic bunch of women about the importance of thinking about and documenting their commercial relationships.

And in between all this, there has been the 'real work', of course. It's been a stimulating and challenging month, and I look forward to sharing what I've learned with you over future posts!

Are contracts a sales-prevention tool?

2006-10-20T09:52:00.000-07:00

In the last few weeks we've been dealing with several new clients who never previously used contracts in their businesses at all. Some were used to preparing proposals for new sales, and usually included a few words about invoicing and payment terms. A couple even used reference to 'our terms and conditions apply' - without actually having any!!

When pushed, these companies (any many others - maybe you too?) say that they've avoided contracts because they can put off potential clients. They're worried that by showing a customer their terms of business, they're putting barriers in between them and the sale. And that, as we all know, is the last thing that sales people want to do!

Another variation on this theme is the company that does a fantastic sales job and has the client biting their hand off, and then slips their terms and conditions across the table with a mumbled 'So if you could just sign here...' at the last minute. Ideally, for these guys, the client wouldn't actually read the document before signing ('It's all the usual legal stuff...just standard, really...').

So why do we do this? Is giving a client your Ts & Cs before a sale really as off-putting as making a teenage boy take his prospective mother-in-law out for dinner before he can date your daughter?

I guess there are many reasons, but they fall into a few main categories:
- the sales person doesn't understand the Ts & Cs (and doesn't think the client will either)
- the Ts & Cs bear no relation to how the business works
- there is no clear benefit to the sales person (or, in their eyes, the company) to having the client sign these terms
- the Ts & Cs are so one-sided that the sales person is worried they will put off any potential client who actually reads them
- the deal size is so small that the company is happy to bear the risk of everything going wrong

If you have thoughts on this subject, I'd be really glad to receive them - you can either post online, or email me at tiffany.kemp@devant.co.uk. Needless to say, I don't share this reluctance to use Ts & Cs, but I do think that we should work hard to ensure the perceived negatives are addressed. Because we can't expect our professional sales people to do anything that they think is detrimental to the sale - and it's up to us to show them how contracts can be a margin delivery tool rather than sales prevention!

Power to the People

2006-10-01T14:19:00.000-07:00

Those of you who didn't come to the B2B show may not be aware that our first 'public' training workshop is going to be on Thursday 19th October, at Soane Point in central Reading. Although we've been providing in-house training workshops for clients and for select groups of associates, this will be the first time that Devant has advertised open training events that anyone may attend. So why are we 'going public'?

The objective of our 'Foundations of Commercial Contracts' workshop is to put contracts back in the heart of the business, where they belong. When I founded Devant, over three years ago, I had not realised just how reluctant most small and medium sized companies were to deal with lawyers. The general perception was that lawyers fees outstripped their value - to such an extent that a surprising number of companies would sign something they didn't understand rather than pay a lawyer to review it for them.

While I'm no fan of overpriced legal services, I'm equally unhappy about the way that smaller companies are put at a disadvantage by their lack of access to decent legal support. Hence the training. While we're not promising to make anyone into a contract law expert, we do promise that delegates will leave our workshops understanding what the legal stuff means to them - in practical, commercial business terms. And that they'll be able to work out when they really do need professional support. And how to ask for it! After all, there's a world of difference between handing over a 25 page contract to a lawyer and asking 'What does this mean to my business?', and asking your lawyer (or us!) 'What does this clause mean?'.

If you're able to read and understand most of the contract yourself then you can ask for specific advice and assistance - which not only saves you money, it also ensures that YOU are in control of your commercial relationships, rather than the lawyers (or the other party, which is even worse!).

So if you're not among those who have reserved their places on the first workshops (19th Oct in central Reading, 26th Oct just South of J11 M4 at Wyvols Court) then drop us an email (or call on 0118 9889672) quickly to benefit from the 10% discount that applies to these first two workshops only. There are only a small number of places left on each October session, but we will be running further workshops in November and December in case you miss these.

Thanks for Making it a Great Event!

2006-09-28T04:52:00.000-07:00

As you'll have seen from Simon's post below (thanks, Simon, for the pics and the funky slideshow!!) we had a fantastic couple of days at the B2B Thames Valley event this week. Lots of you attended the conferences and seminars, and we were delighted by the number of visitors to our stand who were genuinely interested in how they could improve their profitability through a better understanding of commercial contracts.

The "Guess the Weight of the Contract" competition was very popular, with over 200 entries in total! I can now reveal that the heavyweight tome clocked in at an impressive 2.475Kg!! We'll be notifying the lucky winners, who will receive Devant workshop places and champagne as prizes, over the next few days. Your units of measurement were a great source of entertainment throughout the event. Lots of you thought in 'bags of sugar' and we had several 'about the weight of my second child' comparisons. But my favourite was the lady who thought our contract weighed 'about one and a half medium-sized cats!!'

If you didn't make it to the event you can sign up to one of our first two public training workshops at a special 10% discount - only £360 for an intensive one-day learning experience that will pay for itself many times over. Contact us to book your place, and mention our BLOG to receive your special discount.

We met some fantastic people over the course of the two days in Windsor, and Alison, Jan, Helen and I would like to thank the organisers of B2B Thames Valley (and particularly Scott Hider) for all their hard work in making it such a roaring success.

We'd also like to thank:
- Simon of Hyde End Studios, and Mark of Facer Designs, for their creation of the gorgeous cake-inspired graphics that attracted so much attention to our stand,
- Christina of Tasty Catering (tel. 0118 979 7134) for her delicious cakes that were enjoyed by all, and
- Emma of I-Candi Designs I-Candi Designs for our elegant cake boxes.

B2B Thames Valley Exhibition

2006-09-27T15:41:00.000-07:00

This annual exhibition held at Windsor Racecourse was a great success for Devant. A full report coming soon but in the meantime, turn your speakers on and click the 'play' button below for little pictorial preview of how the show went!

Cakes and Contracts

2006-09-12T13:19:00.000-07:00

Some of you may (secretly) believe that contracts are really rather dull. You would never say so to me, of course, knowing it would hurt my feelings ;0) but the perception is out there, all the same.

At Devant, we don't think contracts are dull at all. For us, they are the DNA of a business - they define the way it interacts with its clients, its suppliers, its business partners and its staff. And, more importantly, getting them right (and, along the way, getting your commercial relationships right), will help you maximise your profits and safeguard your business. Not a bad achievement, really!

So how to help the business world see how truly exciting, essential and (dare I say it?) FUN structuring and negotiating great commercial contracts can be?

Cakes.

Yes, that's right: after much deliberation about the theme for the B2B Thames Valley exhibition (26/27th Sept, Windsor Racecourse, www.b2bthamesvalley.co.uk, in case you missed the earlier post), we've decided on cakes!

Why? Well, cakes are nice. They taste good, bring a smile to people's faces, and make the world a better place. Just like contracts. Well, except the tasting good bit, anyway. So now you're curious, aren't you? How exactly is Devant going to use cakes to make us want to be trained in the art of crafting excellent business relationships? How does a bit of buttercream help us reduce our risks and increase our profits?

Windsor Racecourse, 26th and 27th September. Be there - and find out!

To sign or not to sign?

2006-09-05T05:04:00.000-07:00

A recent project has highlighted for me a dilemma faced by many small and medium sized companies in business today.

Simply put, it goes like this: "We want to encourage clients to do business with us, and make it as easy as possible for them, but we're selling high-value products/services and would ideally like them to sign a contract to protect us both. "

So there are two apparently conflicting aims: to make it easy for the customer to buy, and to make it safe for you to sell.

This became apparent when we started having a discussion about our client's sales process, and how we would get the customer to sign their contract. Their concern was that requiring the customer to sign something would slow down the process and put a barrier in the way of the sale. The alternative was to consider using General Terms and Conditions, that did not require signature by the client.

The challenge here is that, particularly if you are making large sales, you want to ensure that your terms and conditions will actually be the ones that govern the sale. This can be difficult with an exchange of Ts & Cs as the customer will often return a purchase order setting out their own Ts & Cs - which, strangely enough, rarely reflect yours! If the customer actually signs your contract then the problem of the "battle of the forms" does not arise (providing your contract is well drafted!), and it's very clear which terms apply to the deal.

After much debate, we have now prepared a set of General Terms that set out a clear process for determining when a contract has been made. The next step will be working with the sales and presales teams to ensure they understand these General Terms, and know how to use them in conjunction with the proposal and sales process. This training activity is absolutely key to the value of the new General Terms, as without it they are simply another document sitting on the company intranet. And for us at Devant, it's essential to build the contract into the business rather than leaving it on the side (or in the proverbial filing cabinet!).

Given the high level of opportunities being generated in this particular customer's business, I think we'll quickly have the opportunity to put these new terms and conditions to the test - I'll let you know how we get on!

The Show's the Thing!

2006-08-29T05:53:00.000-07:00

It's now just four weeks until the B2B Thames Valley business exhibition and seminar event at Windsor Racecourse (26th and 27th Sept). Those of you who have been involved in preparing for exhibitions will have an idea of the state of our office at the moment - sample graphics, invitations and mailing lists are jostling for space with the real work of putting together great contracts and training programmes!

It'll be the first time we've exhibited at a B2B event, and it looks like it will be great. I'm working on my presentation for the Devant seminar on Tuesday 26th September. I'll be the warm-up act for Bob Geldof, who's presenting immediately after my seminar, so it's important to make it really fun and relevant - I'm glad I don't have to follow him instead!!

If you've not received an invite yet, you can register free for the event at www.b2bthamesvalley.co.uk.

Time out

2006-08-20T15:54:00.000-07:00

After a very hectic Summer, I took some time out this week with the family for trip down to Dorset. It's always a bit scary putting the answering machine on and leaving the office - but I'm really glad I did. We took a trip on the steam railway from Swanage to Corfe Castle - Riley, the dog, wasn't keen on the steam whistle, but the kids loved it!

My husband Simon is a photographer and he posted some more pictures on his blog (you'll need to scroll down a bit).

After an explore of the castle itself we mounted an expedition to the top of a nearby hill for a better view. It was fantastic - the breeze was so strong you felt like you could fly! Now, back to the office, and some new projects waiting in the inbox for Monday.

Small World

2006-07-25T17:57:00.000-07:00

It's been a hectic and multi-national kind of week. When, some years ago, I quit my job negotiating contracts with telcos around Europe on behalf of a large US software company http://www.convergys.com to start Devant, I I thought I'd left my days of wrestling with foreign legal systems behind me. The world of small and medium sized UK businesses would enable me to leave my passport and my language dictionaries at home, I thought. How wrong could I be?

You're an adventurous lot, you English companies! Thanks to my clients' global interests, this week I've been learning about Swiss contract law, arbitration in India, oil exploration in Qatar and software application hosting in Eastern Europe. There is always an element of nervousness when dealing with foreign legal systems, or even doing business under English law with other countries. Fortunately, through our excellent lawyers Charles Russell we have access to a global network of legal advice in English, which truly enables us to support our clients where ever they are doing business.

And, despite cultural, legal and language differences, when it comes to business most companies want the same thing - a fair and reasonable deal that enables them to manage and understand their risks, and maximise the benefits they receive from the relationship.

Shed Nirvana

2006-07-12T06:01:00.000-07:00

Just a quick note - today I received my full refund from B&Q for the returned shed. They even refunded the delivery charge, which I thought was jolly decent of them. Of course' I'd asked them to - but fully expected a 'No'. So it just goes to show that if you ask in the right way, all things are possible!

And yesterday the new shed arrived. It is magnificent, and I am considering moving from Devant's elegant and comfortable offices, just to spend more time there. If you are ever in need of a good quality shed, and don't want to build it from scratch yourself, give Kevin Payne a call - 01205 480 364. He makes to order (so my shed fits my footings perfectly!) and delivers all over the UK.

Building Bridges

2006-07-10T16:02:00.000-07:00

It occurred to me today, as I worked on a couple of new dispute cases, that there are so many different ways to voice a problem - and to respond.

You can go straight for the jugular, leaving the other party nowhere to go except to back down (and feel foolish/abused/weak) or to fight fire with fire. Result? Full scale war, bad feeling on both sides, potentially huge legal bills or stalemate.

Alternatively, you can open by stating your case in a friendly manner, making it clear that the other party, being the reasonable individual they are, will no doubt have come to similar conclusions themselves, and be keen to sort things out. Result? Because most of us like to be perceived as reasonable people (the 'decent bloke' approach), the tendency is that, if approached in an appropriate way, we'll live up to this description of ourselves. Of course, it doesn't always work - but it's often a good way to start.

I had personal experience of this last week, over (of all things!) a garden shed. I'd ordered the shed in B&Q without the chance to inspect it close-up (they have a policy of displaying them on a 20-foot high display frame). When it came to assembly, the desired shed was not quite what I had anticipated. Rather than just (!) fixing together four panels, adding a roof and floor and screwing on the doors, full-scale carpentry was required. And the wood was wonky, to boot. So what to do?

As a seasoned resolver of disputes, I started by jotting down a list of my complaints, keeping these to the facts of why what was delivered did not meet my reasonable expectations, and what I would like to have done about it. Then I called B&Q and spoke to a customer service representative. We had a pleasant conversation, after which she said she would leave a message for the store manager. I expected to hear nothing, but later that day I received a call back (yes, that's right - the very same day!!). This gentleman, Jason, listened carefully to my issues. He asked politely what I would like to do. When I requested that he arrange collection of the shed and refund my card, he agreed. Then he arranged for collection to take place. Now the shed is gone, and I have ordered a new one - not from B&Q this time, but only because I've realised that in the case of garden sheds, as with all things, you get what you pay for. The new one is twice the price of the B&Q shed, but is due to arrive and be fully assembled this week.

Would I buy again from B&Q? Happily. Jason was charming and understanding. He addressed my complaint fairly and resolved it swiftly. Yes, he lost this sale - but has left me with a more positive impression of B&Q than I started with. Not bad, really, considering the quality of the shed! Perhaps I would have received the same polite and friendly treatment if I had gone in all guns blazing. But it wouldn't have been such a positive experience. Well done, B&Q.

Just uploaded...

2006-07-06T09:03:00.000-07:00

Just uploaded...

The second Devant podcast!

Click here to listen.

Firm foundations lead to better dispute resolution!

2006-06-28T06:04:00.000-07:00

I don't know if it's the hot weather, making people more tetchy than usual, but we seem to have had a rush of Dispute Resolution requests recently. These range from simple ('we don't think we had a contract, so we're not going to pay you for your work'), to complex ('Yes, we have a contract but it's so convoluted that the only people who can say for sure what the situation is are the Courts.'), and with sums involved from thousands to millions of pounds.

In all cases, though, there are two common threads that might be useful to highlight.

Firstly, the party who is suffering through the dispute is not entirely clear as to what their legal position is.

In some cases, this is just because they are not experienced at reading contracts, and understanding the ramifications of the various elements of their situation - this is relatively easy to fix, and we have been able to offer assistance in gaining a clear idea of their rights. In others, though, the original commercial relationship was not set up on a firm footing. This means that either there was no contract at all, or the contract was too high-level to be of help, or the contract was complex, self-contradictory and unclear! This is far more challenging, as we are having to pull together lots of other information (how people have behaved, what they have said in emails, etc) to try to determine what the original agreement actually was. A much tougher job than just reading through a nice, clear contract!

The second common thread is that the party who is causing the dispute believes that just by refusing to pay what is owed, they will either avoid payment altogether or at least secure a discount on what they owe through a 'negotiated settlement'.

The outcome of the situation depends on the extent to which these two threads co-exist. The more contractual clarity there is, and the better the suffering party understands their position, the more likely they are to stick to their rights and eventually to agree a favourable result. When you are in an unclear contractual situation there is the tendency to settle for less than you should, simply because working through the detail looks too difficult and expensive.

At Devant, we will always try to establish clarity regardless of the complexity of the situations our clients find themselves in. And, of course, we work hard to obtain the best outcome for the client, which means the optimum balance of time and money invested in sorting things out versus the amount at stake. But it certainly makes life easier if the original commercial relationship was clearly defined! I guess it's the commercial equivilent of the old adage 'marry in haste, repent at leisure'. I prefer to put a more positive spin on things though - how about 'Contract with care, to avoid despair'? Or 'If your contract's cute, you'll avoid disputes'? Hmmm... maybe I should stick to writing contracts, and leave the slogans to the professionals!

The first Devant podcast is born!

2006-06-26T06:04:00.000-07:00

It may not have taken nine months to gestate, but it's probably been that long since my husband first suggested that podcasting would be a great way for Devant to 'spread the word' about how commercial contracting really ought to work. At last, after much thought and more than a few technical hitches, the first ever Devant podcast has been uploaded. I hope to be able to offer lots more resources to help you and your colleagues to develop really great commercial relationships. If you have a spare five minutes (well, eight to be more accurate!), listen to the first one and let me know what you think. And if you have any thoughts about topics for future podcasts, drop me a line.

What kind of partners are we?

2006-05-31T11:05:00.000-07:00

On a fairly regular basis I'm told by a client that they would like 'some sort of partnering agreement' to cement a fledgling business relationship. This week was the latest - two companies who have complementary products and services believe that they could deliver a better solution to their clients by working together than separately. They are, of course, quite right. By teaming up with another business, you can add skills and resources to your portfolio and not only provide a more complete solution to your clients but also (almost as importantly!) keep out actual or potential competitors.

The hitch comes when we start trying to figure out exactly what kind of partners the two companies are going to be. Are we talking about joint marketing? Putting links to each other's web sites, having joint stands at trade shows, and including lines like 'Powered by ..." at the bottom of our brochures? Or a reseller relationship, where one of you can resell the other's products and services? Or even a two-way reseller relationship, where each of you will take the lead in different markets/geographies/client accounts? Or does one of you want to have a full-on, well publicised and marketed relationship that allows each of you to bask in the other's reflected glory, while the other prefers a more 'behind the scenes' collaboration with the partner's staff acting under their banner?

Like most business relationships, different approaches will work for different companies at different stages in the relationship. There is no such thing as a 'right' way to work together. The only thing really matters is that you both agree what kind of partners you want to be! With this client, they and their potential partner are currently in different places - each has a different view of the best way to work together, and until these are reconciled we have to put the champagne on ice and keep the confetti boxed. I'll be working with them both over the coming weeks to see where the middle ground lies, and how they can each use this relationship to maximum benefit - watch this space!

Welcome to the new Devant blog

2006-05-30T06:06:00.000-07:00

Welcome to the new Devant blog. More to come soon!