(a) Find the feeling (engage, engage, engage) 2/2
Contract automation is best implemented in small steps. If you want an elephant that is not hesitant about change you need to shrink the change steps. An elephant does not enjoy tasks without immediate gratification. It needs reassurance that things will not be so hopeless. ‘Hope’ is elephant-fuel and when a task feels too big, the elephant will resist. Giving the elephant in people a sense of progress and making them feel closer to the finish line than they thought, keeps an elephant from getting demoralised.
The second important reason for making change-management steps small is that your team will usually do all the (ultimately time-saving) implementation work initially on top of existing tasks. Small steps can be fit in, especially if your team members are motivated to do so.
Small, small, small. Successful change-managers aim at small wins: milestones within reach: ‘finalise one clause for in the clause library’. In more recent terminology: use scrum techniques of sprints. Select small milestones that embody two aspects: one, they are meaningful and two, they are within immediate reach.
SWITCH describes a highly successful financial coach: he instructs people in financial trouble to start repaying the smallest amounts of their debt first, instead of their exceptionally costly debts. This reverse of priority (not working on the debts that accrue interest by more than 20-25 percent but to work on the smallest debt) appears to be significantly more effective.
Likewise, instead of trying to reach formal consensus on a model contract template by the model-contracts committee and then await the (inevitable?) feedback from the business, it might be worthwhile to simply start suboptimal, and get both the feedback and consensus-with-amendments thereafter.
Shrunk change steps. When your team members dread change, shrink it down to the maximum extent possible. Don’t let success feel too distant. Have your model clause built in within a day or two (and communicate it). Can you try a new approach on one team member, your ambassador-to-be? Can you spend one minute creating a contract-assembly contract? Imagine that, at the end of your next team meeting, you set a 5-minute timer. Let everyone create one automated contract. What about 30 minutes? three hours?
If you need to translate the new global strategic purchasing agreement or NDA into Spanish, French or Dutch, split the document, sit around the table with the whole legal team for three hours, have one person coordinate consistency with the previously agreed contract drafting conventions, plug in the boilerplate term-and-termination and force-majeure clauses together with the miscellaneous provisions and you should be ready within a few hours. You have your team motivated, a shining example of a leading coalition, and your result.
Tick off two at the start. A head of legal could require a KPI that throughout the first year, every team member creates at least ten contracts with the Weagree Wizard. Then sit together with all of them and create two contracts together. Psychological research proves that if you start with two ticked off of ten, it speeds up meeting your targets (because what looks like a large project suddenly appears to be done for no less than 20 percent). Although figures are impossible to predict, psychological research suggests that your lawyers adopt contract automation at double numbers of created contracts, within half the implementation period (compared to those not getting two ‘for free’ and not sitting together).
Upgrade model contracts: start with the boilerplates. If you are upgrading your model contracts before automation them, your inclination might be to appoint a team to upgrade the single most important flagship agreement (e.g. a corporate’s Strategic purchasing agreement for key suppliers, a law firm’s Share purchase agreement, the company’s Joint development agreement). What looks like the promise of a great leap forward may capture personal opinions of everyone involved (or at least of every lawyer who will need to work with that model contract). They will raise their issues before approving that contract as ‘our future model contract’. Such process may frustrate all progression: all kinds of ‘insignificant’ issues will be raised (as, process-wise, they had not been raised before): “we should abolish writing carbonpaper-copy-error-caused ‘30 (thirty) days’ and use a less fax-machine-era ’30 days’ instead” or “we need to refer to a contracting party as ‘Party’ and not as ‘party hereto’” or “appointment procedure of arbitrators in the arbitration clause is problematic”. Those are not issues that you want to address during the discussions on a Strategic Purchasing Agreement, SPA or JDA. Those are issues that can be tackled quickly and easily (and as a fun-exercise enjoyed by all lawyers involved), if done as a preceding exercise on establishing your organisation’s Contract drafting conventions.
So, the critical steps of your contract-upgrading project could be shrunk, to:
- Require everyone to comment on a sample Contract drafting conventions document first;
- Address the different points of view revealed by such comments, and compromise on the organisation’s own Contract drafting conventions.
- Decide that as a corporate or law firm, the adverse consequences of a mistaken decision will be accepted by all involved (so the ‘issue’ raised by an individual but not assumed in the final Contract drafting conventions has its place).
- Circulate a document with all miscellaneous (boilerplate) clauses, requesting everyone to comment on them or propose alternatives supported by legal arguments.
- Agree on the final set of boilerplate clauses (with allowed deviations under certain local laws).
- Do the same with quasi-miscellaneous clauses (e.g. Confidentiality, Force majeure, Term and termination, Ordering-and-forecasting clauses) – if only based on those disseminated by Weagree: collect comments, agree on final texts, assume risks, confirm as final.
- Entitle one monitoring person in your team to review and correct the subsequently tabled model contracts for what was agreed.
- Refuse to address deviating proposals raised by team members to the extent already settled previously under the Contract drafting conventions, boilerplates or quasi-miscellaneous (instead, schedule a review of either such document in a year’s time).
