There’s one basic rule to remember when faced with a dispute in an ICT relationship. Act early and act quickly.
Large disputes that are left to fester are much more likely to poison the overall business relationship and be harder to resolve, but companies also need to weed out any minor disputes that have the potential to grow into major disagreements.
Disputes and disagreements won’t go away on their own. The parties to an ICT relationship need to put time and effort into firstly creating the environment in which disputes can be quickly resolved and secondly producing solutions to individual disputes.
Too often, companies ignore the need for a framework within which discussions on dispute resolution can occur.
I find it helpful to include in ICT contracts a set of principles to encourage early resolution of smaller disputes without necessarily prejudicing bigger and more intractable claims.
These principles include the concept of fix-first-argue-later, under which parties will initially share the cost of a resolution without prejudice to their right to dispute the liability for such cost at a later stage.
This recognises that continuity ought to be the core of any service-based relationship.
The governance structure of any relationship ought to set out clearly who is in charge of resolving any level of dispute.
It’s also good practice for each side to appoint an independent (of the service delivery team and end users, that is) senior relationship manager within their firms.
This should reflect that fact that any dispute resolution option is ultimately a business decision into which the legal rights and wrongs are just one input.
I’m also starting to see more interest in expert determination as a way of resolving disputes without resorting to arbitration or litigation.
This can require a leap of faith if the expert process involves, for example, a tightly-drawn process limiting each side to a short written submission of its case and maybe a short verbal presentation, matched by the obligation to accept as binding what the independent expert then recommends.
But, for smaller disputes, the speed and finality of the process can be a small price to pay to avoid the longer-term effects on cost and management distraction that a festering dispute can cause.
So what should you do if you are involved in an ICT dispute?
- Act early
- Define and justify the desired outcome
- Manage and control the information flow
- Quickly create and maintain a constructive dialogue
- look for ways to make the problem go away
- Always protect your position.