Slippery Slope

January 12, 2011

I am basking in the glory of finally having completed the Sella Ronda (but I have not yet, as my e-mail spellchecker seemed to think, ‘done Stella in Rhonda’). I am gazing out on the beauty of the Dolomites at sunset with a vino rosso to one side. Naturally, my thoughts have turned to IT contract formation and project methodologies.

You may recall the challenge from Clive Davies to bring together the best brains of SCL in improving drafting – perhaps marrying waterfall and agile and producing a mixed race child of exceptional beauty. You will also no doubt have been reading the judgment in {i}De Beers v Atos{/i} and wondering if the available approaches are in any way helpful (you must await the article from Anna Cook of Wedlake Bell and Simon Croall QC, who acted for De Beers, to get the best insight on that case). These developments put the issues on my mind.

My moment of insight was aided by the piste markings rather than the vino. I began to wonder if one element in most botched contract negotiations was not being overlooked – and perhaps IT lawyers could find a way to add it. You will be familiar with the fact that many ski resorts mark pistes according to their level of difficulty: green, blue, red and black. Sometimes there is but a black run available from the top of the mountain back to the nearest rifugio, but often there is a choice of routes. The sharp slope between narrow rocks or the windy-windy route that makes only the occasional demand upon skill and courage. The key is for the skier to assess his or her ability honestly and choose the appropriate route.

Could the formation of IT contracts and the methodology to be adopted take a tip from this? Should the skills of the parties not be a factor in determining the approach to be taken? If you are an inexperienced negotiator, you can choose a convoluted and careful path, with an instructor close at hand; if all parties are truly expert, a more direct route can be chosen. And most will take a middle way – just as on the ski slopes most ‘cruise the reds’.

Of course, this won’t stop people making bad choices of route and persuading the other party to join them – just as we saw today the expert skier patiently explaining to his companion that she really could snow plough down the black after one lesson, and waiting for Spring was not a viable option. But IT lawyers can help them choose sensibly. This does not involve the suicidal intervention of shouting ‘not that method for you – you are a rubbish project manager/negotiator’ – it just requires the suggestion of a need to involve others given the extreme complexity of the route, which is of course exactly what you do now.

Step aside waterfall and agile and let the skills and knowledge interface take the spotlight. You will not be surprised to learn that I am calling it SKI for short and can be persuaded to explain it more fully at seminars for your clients by promises of large sums of cash.