Walk the Week - Contract 3.0 - Prevention rather than Cure

I saw a recommendation recently on LinkedIn by a friend and former colleague Mark Smith to a fascinating book Outlive The Science & Art of Longevity by Dr Peter Attia. The theme of the book, which I am still reading, is that we are currently in a mode called “Medicine 2.0” (after “Medicine 1.0” which lasted until the mid-nineteenth century) where the aim of health care is to fix problems, but only after the symptoms appear. Instead, we should be moving to “Medicine 3.0” taking the approach of Chinese medicine and seeking to prevent the problem arising in the first place. “Medicine 2.0 focuses on lifespan…..Medicine 3.0 pays far more attention to maintaining healthspan, the quality of life”. It strikes me that this approach applies equally to a number of other professional situations. We seek so often to deal with the symptoms rather than the root cause of problems. The book cites Bishop Desmon Tutu: “There comes a point where we need to stop just pulling people out of the river. We need to go upstream and find out why they are falling in.”

Take, for example, an IT services contract where the delivery of the services goes wrong in some way – for example a misuse of or even loss of key data leading to risk and service failure. I have unfortunately been involved over my career in a number of such situations advising both customers and suppliers. ??What generally happens first after the issue manifests itself is that the supplier and its subcontractors are asked to investigate the situation and produce what is called a “root cause analysis (RCA) Report”. This delves deeply into the technical and sometimes business reasons as to why the situation occurred and its consequences and recommendations to fix the problem and prevent its reoccurrence. It can be defined as “the process of discovering the root causes of the problem in order to identify appropriate solutions. RCA assumes that it is much more effective to systematically prevent and solve underlying issues rather than just treating ad-hoc symptoms and putting out fires.”

This is all fine, but it still is reactive – taking place after the problem has occurred. See this useful article Root cause analysis explained with examples and methods which discusses techniques and methods to conduct an effective analysis. Interestingly it proposes “Instead of looking at the specific day or hour that something went wrong, we look at a longer period of time and gain a historical context.” It concludes “We typically use RCA as a way to diagnose problems but it can be equally as effective to find the root cause of a success. If we find the cause of a success or overachievement or early deadline, it’s rarely a bad idea to find out the root cause of why things are going well”.

This is more the theme I want to explore. Why wait for the symptoms of the problem or illness to occur? Instead find ways to look for and identify personal, business, technical or contract issues and prevent them from becoming problems in the first place. See for example this LinkedIn article How to anticipate problems and solve them before they occur which suggests:

·?????? “By anticipating and solving problems before they happen, you can improve the efficiency of your business by eliminating disruptions and delays caused by difficulties that have already occurred”.

·?????? “This requires a proactive mindset that focuses on prevention rather than reaction”.

·?????? “To anticipate problems, you need to identify the areas in which they are most likely to occur.”

If you go back to a problem contract delivery where say the initial project is late, how can that be recognised, anticipated and prevented? There are I suggest a number of ways this could be achieved in practice by lawyers and commercial advisers and other professionals.

1 In the original contract negotiations drill down into and test the project plan and the viability of achieving it.

2 Spend time understanding the requirements and solution and testing if these can be delivered.

3 Use an Agile process to better manage delivery and meet expectations around the solution.

4 Test the plan and solution with independent experts in your organisation before signing the contract – and listen to what they say, implementing changes to the contract or associated processes that they recommend.

5 After contract delivery run regular “deep dive” reviews to proactively look for any possible issues before they occur and see how these may be prevented.

6 If things look like they may be going wrong bring in skilled colleagues to help the business-as-usual team and prevent the issues from developing into real problems. ?

One of the inherent reasons why such problems in contracts delivery are not identified early enough in my experience is a sense of loyalty within the project or delivery team which will not allow or contemplate the risk of failure. This encourages a blinkered approach and a refusal to recognise reality. The risk for say a lawyer becoming involved in such a driven team is that they “go native” and can’t see the real upcoming challenges with any perspective until it is too late.

See this article How to effectively solve or prevent problems before they occur? which distinguishes between:

·?????? Reactive problem solving is about putting out a fire after it has occurred. For example, after it has developed. and

·?????? Proactive problem solving identifying and resolving them well before they occur. For example, vaccinations to prevent disease.

It proposes 10 Step proactive solving problem-solving method including:

·?????? Identify the outcome you want to achieve

·?????? Detect problems before they arise by addressing early warning signs

·?????? Create a sense of urgency

·?????? Consider fixing the system as a whole

·?????? Identify the cause and effect of future problems.

It concludes “Therefore, adopt the mindset or preventative system. Take personal responsibility and accountability for issues. Preventing problems to occur takes time and commitment”.

So I suggest that we should not just be looking for a “Medicine 3.0”, but a “Contract 3.0” and a “Legal 3.0” where our professional energies are focused on preventing rather than fixing problems.

See some apt quotes on this topic below – which show that it is by no means a new idea.

“The doctor of the future will give no medication, but will interest his patients in the care of the human frame, diet and in the cause and prevention of disease.” Thomas A Edison.

“He who cures a disease may be the skillfullest, but he that prevents it is the safest physician.” Another American inventor and businessman Thomas Fuller.

“The time to repair the roof is when the sun is shining.” John F Kennedy.

“An ounce of prevention is worth a pound of cure.” Benjamin Franklin

“Intellectuals solve problems, geniuses prevent them.” Albert Einstein.