Oceaness is a services business. It primarily provides the intellectual resource of Dr Duncan Mather, whether through his direct involvement into your organisation, or through materials he has created, devised, refined or developed. Other skilled personnel resources can be secured and provided according to needs and subject to their availability. This is why much of what is presented here refers to Oceaness as “we” rather than as “I”.
Legal Counsel or Director (Interim)
Hands-On Support Embedded into your Business
A full-time In-House Legal Counsel often cannot be economically justified, but the need to “get the legal’s right” is still important.
We give you the hands-on use and services of qualified mature and experienced solicitors who’ve spent their careers in industry, remotely or in-office, embedded into your enterprise on an interim, a part-time or an ad-hoc basis to best suit what your situation needs.
In this way we not only undertake the role and tasks of an in-house lawyer, but also help you establish and implement internal processes that suit your business to protect you from commercial risks. We’re there beside you shoulder-to-shoulder to contribute, not there to be part of any beauty parade of legal services.
When an assignment is completed, we remain available to support and advise you whenever events may take an unexpected turn, or to further improve and educate those who run or administer the business.
The work of the In-House Legal Counsel usually includes advising the Board and the firms’ management. Typical its scope will include;
- Advising on all commercial agreements
- Preparing new commercial agreements
- Defining the scope and requirements for contract management
- Advising on tendering documentation
- Advising the Board on legal implications of management decisions
- Supporting Company Secretarial duties
- Guiding the management of litigation
- Guiding the efforts of debt recovery
We’re also on hand to provide support throughout the negotiation process to help you identify and counter the risks, consider the best options, and help you devise a strategy of your own to put you in the best possible position. As well as doing the work, we can also advise and guide you on good Contracts Administration laying the necessary paper-trail to mitigate possible litigation.
Negotiations often involve legal representatives, whether internal contracts managers or external lawyers sometimes drafted-in specifically to raise the stakes or intimidate. You know your business better than anyone, but sometimes having a lawyer beside you helps, ideally ahead of the negotiations, as well as when they take place face-to-face, and then afterward to see that the documents properly record your agreement. It is vitally important that the lawyer is involved to;
- Correct what might be deliberately misleading or incomplete statements
- Clarify the legal position if the other party suggests you are at fault
- Advise you from experience, when commercial or negotiation tactics are being used against you
- Carefully scrutinise the written words of an agreement; too often what is presented after a meeting does not truly reflect what you thought had been said and agreed
And it happens all too regularly so let’s not be coy about it; the lawyer should also be there to defend you from intimidation and bullying.
Just to “put a contract in place” through procurement is not enough. To minimise the opportunity for conflict, cost and schedule over-runs, you need a strategy and a plan. We provide detailed support in a way you may not be used to because we’ve been there as engineers before getting here as lawyers.
We work with all size of enterprise from major multi-nationals and plc’s, to small private businesses. Whether you are the developer or the contractor, we’re able to help you create contracts that are effective, wherever you want to;
- Deliver your project safely, on-time and on-budget
- Minimise the delays and costs of avoidable disputes
- Avoid the disruptive effects of petty, scurrilous or malicious claims
- Accept that equitable rewards are due to those who provide services
- Understand that risks should be placed where they are best minimised
Whether presented with a bespoke contract or a modified standard form such as NEC, FIDIC, LOGIC, BIMCO, MF or the like, we have extensive experience and expertise to highlight the pitfalls and help you reach a fair and equitable agreement.
Unlike some, often major legal practises, we do not condone the development and imposition of one-sided contracts, where all risks lie with the contractor and all options rest with the developer. We have witnessed at first hand the rising introduction of malicious contract structures, whether in response to market conditions or encouraged by those of an aggressive disposition. We have learnt that their negative effect is invariably counter-productive, undermining any project at the outset. Having promoted and embarked upon such a path, the leading promoter – whether an aggressive developer, surveyor or legal advisor – who has justified and promoted his approach as the way to offer “best value”, then has no option but to continue to defend it, regardless of the deteriorating economic benefits and often undermined quality of delivery.
The truth of best value does not rely on lowest tendered price and shifting of all risk further and further down the contracting chain. Instead it is better characterised by;
- Mutual trust and co-operation amongst all parties
- Fair and equitable pricing; not ripping-off the client and not grinding-down the contractor
- Realistic timing assessments, established in good time, not through last-minute brinksmanship
- Delivering on promises in timely fashion, not making excuses
- Using intelligence to improve the project rather than to enhance one’s own strategic benefit
It is too late to put the paperwork in place after events leave you stranded. If you ever need to pursue a legal claim, only evidence, not reasonableness, will win you the argument …
The most effective agreements are those that are easiest to be understood by all sides.
Once they are agreed it is important that both sides then deliver on the obligations each has committed to. Recognising these and ensuring either that you deliver or that the other side deliver at each stage, is the core role of contract administration and includes;
- Identifying each obligation/promise in the agreement and when it is to be delivered
- Identifying and monitoring the need for formal notices
- Monitoring delivery understandings and clarify any ambiguities formally
- Identifying and raising issues before they disrupt or interfere with delivery
- Putting in place and maintain the necessary safeguards such as insurances and bonds
- Structuring proper evidence gathering of changing requirements
Whether an agreement proves to be a good contract or not, often doesn’t become apparent until long after the lawyers have moved on, when those left behind have to deliver the promises made by the salesmen.
Project management itself has become far more of an art-form than it used to be, so it can be difficult to keep your eye on the core principles which best assure success. Our hands-on experience in both project and contract management can help guide and inspire your personnel to keep the managerial function in perspective. We aim to avoid over-managing projects. High demands for scrutiny burden the team with unnecessary administration. The focus instead needs to be on economical, safe, timely delivery that also protects your commercial position.
In mediation it is the parties themselves who ‘control’ the outcome, rather than it being imposed upon them. It is the mediators role to facilitate discussion and dialogue in a structured way, helping them to come to a voluntary settlement. Unless the parties agree with the mediator to arrange the mediation differently, the mediator makes no decisions.
This enables mediation to be speedy, confidential, and generally a less adversarial process. It is non-binding, but aims to create a Settlement Agreement describing the outcome which can be treated as a legally enforceable record and standalone contract. It is particularly suited to situations where parties want to preserve their future working relationship, as well as circumstances where all sides want to avoid the inevitably rising costs of litigation.
An evaluative mediation is much more involved than a facilitative one but may be more appropriate if the parties are prepared to let an independent and impartial third-party look at the detail of their dispute grievances. The mediator is asked to use their insight and judgement to devise a fair settlement based on the facts presented. The mediator then offers a form of solution to resolve whatever is the problem. It remains for the parties to decide whether they will accept the mediators solution and commit that to a formally defined settlement agreement capable of legal effect.
The parties must agree in advance what can be the basis of that mediators’ review and opinion. This then frames the rationale to be adopted in evaluating the merits of the case. For example, is the mediator to consider what they alone believe to be a “fair” or “just” outcome without further justification as to why this is so? Or should it be the evaluation of a financial balance that might accept some parts of a claim whilst rejecting others?
Clearly, the informed insight of a capable mediator is crucial, whether that insight relates to the subject matter and industrial context alone or to the legal rights-&-wrongs, or ideally both.
If you would wish to consider an evaluative mediation, please get in touch to discuss how this can be framed to suit all of those to be involved.