Upside of the pandemic is that it has created partnerships, more trust on deals, writes Mark Le Blanc
I was on a call last week with a group of in-house counsel discussing how COVID-19 had affected them and their businesses. The discussion surrounding communication, mental health and work-life balance were expected.
Yet three comments stood out and piqued my interest:
- “It forced us to look at and manage risk differently.”
- “We need to focus on partnering with others.”
- “Barriers were gone with the loss of formality, as we were ‘virtually’ invited into coworkers homes and lives.”
As lawyers, we have been schooled and trained to manage every possible risk we can identify. Then along comes COVID-19. All of a sudden we are asked to consider and comment on the risks of deals and strategies that are about to be unfurled at the speed of the Millennium Falcon starship.
As we look at urgent COVID-related matters and deal with these while continuing to do our regular day-to-day work remotely, the usual thorough and detailed legal review is not possible, nor is any deep business analysis. Instead, we must look at and consider only the most critical elements of the deal or strategy. Crossing the T’s and dotting the I’s is not on the table. We have had to peel deals and strategies back to their critical issues to assess risk at the highest level. This has also meant that we have had to accept a certain amount of low-level risk going unmanaged, at least by Legal. Most bigger deals still warrant a thorough legal review, but many do not.
One example for us was with a COVID-19-related deal. It was a deal for a virtual studio; both the IT and Legal vetting were done in a matter of days, and many of the standard-contract Terms and Conditions were looked at only superficially. We focused on the key deal terms only, and both parties knew there were many issues that would have to be identified and resolved on the fly. As a result, we accepted the risk of many unknowns and moved forward.
As we have moved fast, and into unknown waters, we have partnered with other aligned organizations, both formally and informally. To do something entirely new, or something we normally would do ourselves but no longer can with COVID-related restrictions, we’ve needed the capabilities of others to deliver. As well, it has given us a broader perspective with which to wrestle an issue to the ground quickly, and allows for reduced risk: because we share the effort and work, and because, as partners, we are more aligned in interest.
Those of you familiar with my columns will know that personal networks have been critical to supporting partnering.
Informally, this has resulted in more industry-based discussions with other in-house and business leaders. More formally, we entered into Memorandums of Understanding and Letters of Intent with other organizations to jointly deliver on objectives and deliverables. There was some sharing of control and perhaps some sense of resulting increased risk, but the increase in speed to deliver more than made up for it.
One example in the broadcast space (which I work in) is the sharing of TV crews across networks to shoot video, and sharing feeds for news and COVID-related events. That’s something that rarely happened in the past. Ultimately, our organizational value comes from our perspective, and not from ownership or control of the underlying footage. The deals with the afore-mentioned partners were more standardized and much quicker to execute. We were aligned and have higher trust.
Loss of formality
As we jump from one Zoom or Teams meeting to another, we get a glimpse into the homes of our coworkers and lawyers on deals. We see elements of their lives that we would not otherwise see, and share those of ourselves. Formalities are dropped, and we begin to see the real person a bit more, as in the background her dog barks or we see a canoe paddle leaning against a wall. More likely, we also see them in a T-shirt or even a ballcap, or simply with unkempt hair. We are not styled or in suits.
This sharing of ourselves as we are in our lives outside of work removes some of the barriers we traditionally put up in our work environments, which make us a little less open and can keep agreements and deals a bit further apart. Removing some barriers speeds up deals and moves us all closer to alignment. We are more willing to accept and trust -- and trust removes much of the deal friction that reduces speed and productivity. Trust allows us to accept more risk.
Being thrust into a global remote work environment by COVID-19 has been an enormous challenge for most of our businesses. Some businesses and business models may never recover, and there are a whole new set of risks for lawyers to assess and manage going forward. But, we have no doubt all found out that we can move fast when we have to. Specifically, we have found that not all risks need to be managed, we need to partner more, and we can benefit from being less formal. All of this fosters trust, which accelerates the speed of business, increases the likelihood of success and reduces the likelihood of unproductive behaviour (i.e., legal action) in the event of failure.
A lawyer striving to reduce the likelihood of legal disputes is truly modern and invaluable.