May 9, 2006

Tim Lister gave a wonderful and entertaining talk on the software patent mess and the litigation quagmire that accompanies failed outsource projects. I always find Tim’s perspective refreshing – the audience was alive and engaged in large part due to his remarkably entertaining style.

I was privileged to have been invited on-stage to address the audience along with Ed Yourdon. I found it interesting that we represented 3 dimensions in the area of software disputes: Ed as an expert witness on several multi-million dollar lawsuits, Tim as an arbitrator with the American Arbitration Association, and myself as someone practicing mediation on project and outsourcing disputes.

I addressed Service Level Agreements (SLAs). There is far too much involved on this subject to describe in detail here. readers may want to refer to a Cutter Report that I wrote that talks to the subject of SLAs as well as the challenges with offshore outsourcing for software projects (labor rates etc.). In my mind, a crux of why so many companies get this wrong (and then find themselves in litigation) has to do with at least two things. 1) A rush to get the deal signed under time pressure (Yourdon describes it as analagous to teenagers rushing into sex.) and 2) Treating outsourcing as a cost-reduction-driven transaction when it is in fact – more like establishing a collaborative relationship where companies jointly engage in design and invention together (especially in software applications development).

Later on, there was an open panel discussion with Tim, Ed, and two other illustrious folks: Bill Zucker from the law firm of Gadsby Hannah in Boston, and Sheleen Quish, the former VP & CIO for US Can Corporation. Tom DeMarco served as moderator of this splendid interchange. For those of you who are interested in this and other topics, I’d recommend getting the CDs of the conference and loading it onto your iPod. It was that good.

A remarkable way that this session closed focused on how to avoid going to war through litigation by dealing up-front with relationship issues. Things like trust, collaboration, reconciling strong feelings, dealing with contradictory perceptions in a healthy manner, and fostering good communication have to be practiced and reinforced. I was struck by my friend Ken Orr’s comment about trust being “the bandwidth of communication.” The session was highlighted by Sheleen’s astute observation about how important it is when companies are in relationship with each other to have a keen sense of when trust is starting to break down. It’s at that point that a thoughtful intervention might be needed in order to prevent destructive breakdowns that lead to lawsuits.

I imagine another way of viewing this as being consciously aware of how high amounts of friction can reach a tipping point, and set off sparks that ignite a relationship where people burn all bridges.