Why the Future of Work Requires an Integrated Approach to Business Law & Consulting:
This approach and diagram were presented by Jacqueline Horani at the World Commerce & Contracting Vibe Summit 2023. This is a continued overview of the discussion.
Today's law firms need to go beyond merely simplifying contracts. We need a holistic approach to understanding the entire organization if we are to create meaningful agreements that not only anticipate status-quo legal risk, but also consider what is actually attempting to be achieved and what happens within and outside the organization after the ink is dry.
It's beyond time for us to step outside of the closed legal office (an isolated department within or separated from the company's broader work) and incorporate the skills and tools obvious in the consulting world to improve our clients' agreements.
Everything we do as a business is based on agreements (the heart of contracts), which really means relationships.
You're making agreements every day with your colleagues, your collaborators, your employees/independent contractors, your vendors & suppliers, the clients/customers you serve, and community stakeholders. Each of these reflects a relationship with various degrees of authenticity, alignment, clarity, and explicitness, and each agreement is impacted by what happens within your company outside of any contract.
Over the past 6 years I have been researching alternative models of governance, distributed decision-making, shared authority and self-management, Teal models of business, and leading consulting practices focused on human-centered organizations and the future of work. I've been using this research and experience to help my clients discover ways to root out exploitation and oppression from their contracts and business practices. My interest stems from my passion for organizational management, consulting, and branding/design work, but my curiosity was why the legal field was so slow to approach (let alone adopt) what has already been proven on the forefront of business.
To be sustainable, successful companies businesses need to pay attention to their values, transparency, employee and vendor treatment, carbon footprints, user experience, and broader impact. This is not an exception or meant to only target certain groups of customers, the entire landscape is shifting as people become more aware of what is happening in the world, inequality, and the true cost and incentives of corporate decisions. People are paying greater attention and that's a good thing because honestly, most of these changes should be made out of respect for human rights and human life, regardless of any business case.
But the truth is, that companies all around the world, from major manufacturing to food production to health care have already proven that transitioning out of an extractive model to a distributed, circular, or regenerative model achieves greater financial success and impact.
So why do most legal offices continue to see their role in advising companies or drafting contracts as a repetition of the status-quo arms length one-sided aggressive posture that has defined our paradigm for the past centuries?
When we look at contracts we continue to use templates that have been passed down over and over again for decades or longer, often including clauses we can't quite figure out but figure they must have been important if the prior attorney included it. Yes, I know most 'good' attorneys will defend that they always review the claims and make sure to take out anything that isn't relevant to their client, but what they continue to miss is how much risk and opportunities they aren't evaluating and guiding their clients on by focusing so much on 'protecting' their clients from the legal risks they see in front of them.
The purpose of a contract is to help both sides of the agreement achieve and fulfill their goals. Yet as lawyers we spend so much time focusing on drafting for a judge or defending ourselves, or making sure we don't get screwed over. We're here to help our clients successfully achieve their goals, and a win/win approach is far more sustainable and effective when we start to look at the risks and opportunities across time and the organization.
In my work over these years, I developed and designed this wheel of Interdisciplinary Consulting to identify all of the different aspects we as lawyers need to be thinking about and integrating when evaluating, drafting, and revising contracts or policies for our clients.
My goal with this approach is to help my clients implement solutions that actually understand and reflect how their companies operate. With this wheel, I identify and bridge the gaps between the vision, values, and strategy of an organization with the agreements, contracts, and policies that make them possible (or limit their reality). My skills and experiences in business allow me to effectively zoom in and out of each of these layers to find the places of disconnection and bring their entire system into greater alignment. For my clients, that means greater impact and success.
You see the orange pie slice called 'Contracts'? That's the slice of the organization we lawyers see as our role and domain. Normally when clients come to us, that's what we see as our scope. We'll get the contract, identify clauses to revise or remove after looking through the terms, we might consider asking about the process or the specific service being offered in the deal, and maybe get a few questions answered. But really our eyes are totally on that contract document.
As lawyers we need to look up and around at what's going on in the entire organization to accurately identify the true risks and opportunities facing our clients. When I'm working with clients to really create sustainable contracts I move between each of the layers within this wheel. We're working to not just transform the document itself, but help to leverage and transform the success of the contract across everyone impacted, and that means taking into consideration and account the alignment (or lack of) the entire company.
Each of these slices of Interdisciplinary Consulting is it's own field of consulting: Operations consulting, HR consulting, Branding/Marketing consulting, etc. Unless you're working with a major company or well-funded startup, most clients don't have the financial capacity to hire a dozen consultants to guide their work. I'm not expecting you to bring on a team of consultants into your law practice or suddenly become an expert in every field. However, just like how we need to have a basic understanding of tax and liability when advising businesses, I believe we all need to develop a basic understanding of each of these areas so we can effectively understand and guide our clients.
If you are working with an organization that has one or more of these roles, talk to them! Understand what they are trying to do, where they get unnecessarily slowed down, what they wish they could do, and what problems they need to have stopped or interrupted.
As lawyers, we should be moving through this wheel asking:
what is going on from that lens for the client and
how might what we do in the contract impact or integrate that slice of the organization.
So, for example in operations, one of the first things I ask my clients about is what is the process (let's say for a customer agreement) of how that person finds you, hires you, pays you, receives a service from you, and what happens after that? A lot of times this slice itself reveals a LOT of information for myself and the client, because many clients aren't fully clear on their process. That means that a contract that might seem legally valid and fine on it's face isn't specifically tailored to their process or service. This means there is a huge amount of risk hiding underneath this document that we don't usually dive into when drafting or revising contracts. When the process isn't clear to the customer, or when the company isn't clear on it's own process, there are multiple opportunities for confusion, misunderstanding, or tension to start brewing.
While a particular situation might not have come up yet for a company, each side to the agreement is primed for conflict or tension to arise because the existing contract is almost always written from an adversarial one-sided 'protective' lens. Confusion in the process leads to scope creep, time wasted emailing clients back and forth to address and clarify, tension between the parties, disappointment or feelings of unfairness, and other costly and preventable situations. So when we move through this wheel we're working to extract ourselves from our legal box and integrate more of the human relationship interactions that are behind every single contract and agreement. Because that's where our real risks and opportunities lie.
When we don't consider the risks other than for future litigation we ignore the reality that small preventable tensions build up and lead to lost revenue, bad PR, negative word of mouth, far more often than they lead to a trial. It's those same repeated micro-tensions throughout the agreement term that increase the risk of a trial, because the only ones who litigate are so fed up with a repeated violation of rights, values, or expectations that they are willing to invest in the fight. Even if the extremely adversarial and one-sided terms in our contracts might be technically valid today, many laws are changing to be more consumer friendly and create more equity in contracts. So many lawyers will choose to rather spend more time keeping up on laws tracking and making minute changes to maintain their existing approach rather than embrace a different model that is explicitly aimed at future sustainability
We don't want to create contracts that generate or contribute to greater frustrations, confusion, burnout, or overwhelm within the system itself.
We can instead move through considering each lens of this wheel and incorporate it into our contract redesign process to allow not only improvement of the contract, but the alignment of the system of the organization as a whole. Greater alignment results in a better user experience on all sides and is reflected in our contracts through plain language, visually design, and clear expectations.
Some lawyers may say, 'well, this doesn't apply to my client because we have a mass of customers without alternative vendors' or 'my clients or their customers don't care about how the contract looks' or 'this isn't worth the cost to my clients'.
I say, if you can help that organization transform their agreements, strategy, and operations from this holistic lens you'll help them shift their contract into a wildly valuable asset to the company. And that is definitely worth the investment to companies who allocate so much to their marketing and branding budgets.
Companies are ready and waiting for the legal field to be informed, competent, and available to guide them on what the consulting field has been saying for years. Your clients aren't afraid of this process, they're thankful you'll be able to deliver this much value.
You can thank me later.