(Former) in-house legal counsel's perspective on IT conflicts

My CHANGED VIEWS: In-house legal counsel's perspective

A step back in time. As a young attorney at one of the largest law firms in The Netherlands, I was involved in litigation relating to the purchase and development of an expensive IT system. I was fully involved, locked-in, and convinced that I should be aggressive and sharp to win.

My culture told me not to show my cards, create a good fight. And I was good at it. I liked the excitement and the competitiveness.

CHANGED VIEWS

As a mediator, 20 years later, having experienced litigation as an in-house counsel (and before as an ICT advocaat), I have come to change my views somewhat. Especially on early stage conflicts.

'I have come to realise that, compared to law suits, mediation is often a cheaper, longer-lasting remedy - providing a more satisfactory solution to parties in the case of disappointing deliveries of the product. Depending, of course, on the complexity and willingness of the parties.'

IT CONFLICTS: SYSTEMS AND SOFTWARE

How would I now tackle this IT conflict, as mediator? 

Steps to take: verify intentions and investigate the real interests and goals of the parties involved. And this takes the most time and effort. More sessions are normally necessary. As mediators we guide and facilitate the process - not taking a standpoint, merely creating an atmosphere in which parties can slowly start to speak freely.

In the end with the intent to (possibly) settle and solve long lasting and expensive disputes.

WHAT DO PARTIES WISH FOR: TRUE INTENTIONS

One of the phases is to unveil what parties really wish for. Was it to get monetary damages, get recognition of what was done to them, get respect, or an apology? split the damage? Be fully reimbursed? Or a combination thereof. Sometimes these are unspoken wishes.

After this phase we would look for joint interests - and differing interests. Testing the waters. Call it exploring.

NO CLEAR WINNER

In this particular case - my client (in litigation) had a hidden agenda - he wanted the right to freely use parts of the system for two years. And that would have been enough to drop any claim. We never got it. Entangled in arguments, overheated debate and Court proceedings over many years; the Judge ruled no party a real winner and split the damages. This litigation cost my client (and the counter-party) a large amount of money.

DIFFERENT ROUTE?

In mediation, things would have been different. Guided by a mediator, parties we would have expressed their views, ventilated what they felt they were entitled to and communicated what was felt was just. How we could be simply reimbursed - no out of pocket costs but free use of the software & system would have been a very simple and economic solution. The outcome laid down in a settlement-agreement, or "vaststellingsovereenkomst". 

So - when in a potential litigious matter, try a few rounds of mediation first. You may end up with the 5 year free use of the IT system; and additionally be reimbursed with additional money as damages.  

Robert de Wilde is a mediator, facilitator and former attorney in The Netherlands/Netherlands Antilles. 

For info on company mediation and facilitation: send an email to robertdewilde@me.com or go to Contact