Clarity

Across the three parts of this pod, we’re looking at another potential cause of misunderstanding:

Part 1 News - we talk about some responses to the headline that dominated the last show and I ask for your reactions to some less dramatic items, flowing from the new tax year.

Part 2  Myth-busting - We question a common assumption relating to the two biggest challenges in organizational communication, with some help from:

·       Prof. Michael Proulx of The University of Bath and

·       The late Prof. Susanne Corkin.

Part 3  Speaking from experience - We hear more from retired Solicitor Chris Arnheim, this time, on why he thinks it’s ‘dangerous’ for clients not to be clear on what their contracts mean.

I also give you a tip – which I genuinely hope will be obvious.

We finish with a couple of slightly strange examples of situations where it wasn’t even clear whether there was a contract!

Those cases hung on whether there was a firm ‘offer’ and if so, whether it had been ‘accepted’.  That’s the starting point of any contract, but you also need:

·       Consideration – the exchange of something of value to the parties and

·       Intention – to enter into a legally enforceable agreement.

When friends or family members strike a bargain which later falls apart, the court presumes they didn’t intend to create a legal relationship – and it’s up to the party who believes they did to prove it.  In a commercial context, a judge will presume the opposite – which is just as well, otherwise we’d have chaos, wouldn’t we?!

As I say on the show, contracts lay the foundations for our business relationships.  So, of course, they’re a primary cause of conflict.

Breach of contract is consistently among the top reasons for claims to employment tribunals; and customer/client agreements – and, by extension, supply contracts – keep lawyers and the court system busy every day – while costing the parties money, time – and STRESS!

When I was in legal practice, I always tried to encourage my clients to be proactive in relation to their legal rights and responsibilities – because prevention really is cheaper than cure.  It’s a low-risk investment, with potentially high yields– and we could all do with a few of those at the moment, couldn’t we?!

I’ll be honest, it was frustrating sometimes, but I understood why it was a challenge for so many business owners and managers.  We talk a bit about attention on this week’s show – and wen you’re trying to deal with everything demanding your attention every day, it’s tempting to ignore anything which isn’t shouting at you, isn’t it?  I know the feeling – but it’s worth bearing in mind that when      legal agreements start shouting for your attention, it can escalate to screaming pdq – and the noise is highly likely to end up coming from you!! !

So here are a few tips to help you keep your contracts running smoothly – and quietly:

1  Context shapes content:

Yes, I know I said that in the last post, about language – and I’ll say it again, more than once, in future pods and posts.  Here, it’s important (as Chris points out on the show) because it’s what the courts look to these days to make sense of ambiguous agreements.

2  Read between the lines:

This may be obvious to you, depending on your industry, but even the most carefully drafted contractual document (or documents), which hits the sweet spot between clarity, completeness and precision, might not tell the whole story.  The context may well include unwritten terms, implied into the agreement by:

·       Law,

·       industry custom and practice or

·       Previous dealings between the parties.

3  Not all terms are created equal:

‘Minor breaches’ can give rise to a claim, but the contract survives.  ‘Material breaches’, on the other hand,  go to the heart of the agreement.  Whoever finds themselves on the receiving end of one of those can terminate the contract and make a claim for damages, to put them in the position they would have been in had the contract been performed.  Yes, disagreements do arise around whether a breach is ‘material’ or ‘minor’.  so if a term such as a delivery date is vital to you, make it clear – and (it follows) be clear about which terms are vital to the other party (or parties).

4  Don’t be too ‘reasonable’:

‘Reasonable’ is just one example of a word that means different things to different people – and in different contexts.  Long and costly legal battles have been started by the assumption that ‘everybody understands’ this sort of innocuous little word.  ‘Reasonable precautions’, ‘reasonable time’ etc – and many other phrases like that – are ‘equivocal’ – they’re open to more than one interpretation.  The clearer you can be about what you need, or what you’ll provide, the better.  In the case of your obligations, it’s always better to under-promise and over-deliver than the other way around.  We’ll come back to that here and on the pod.

5  Consider alternative dispute resolution:

Despite your best efforts, things can go wrong.  If that happens, some issues will need to be resolved by the courts; but many disputes can be settled in other ways, including through mediation.  Not only is that generally cheaper and less stressful than litigation; the collaborative nature of a mediated settlement means you also stand a much better chance of preserving valuable commercial relationships.  If that’s important to you, it’s worth building mediation into an agreement.  Although if it’s too late for that, you can always propose it to the other party (or parties).

All these things are worth an investment of your attention – which is the subject of next week’s show, after the Easter weekend.

On the programme, I ‘wish you a happy Easter weekend’; but of course, I realise not everyone marks that occasion – and even if you do, you might not be having the time off.  I don’t think I’ll be able to take the whole weekend myself!  Either way, I hope you can join me next week.

In the meantime, if you need help with any aspect of conflict management at work, come and talk to me!  All my details are on the website.