Changing Mindset Sample Clauses

Changing Mindset. Experienced contract negotiators have mental “do” and “don’t” lists developed through hard experience. Similarly, contracts contain language that reflects scars of prior battles. Many of these provisions are designed to prevent a rare failure rather than designed to address fundamental issues that affect success. The accumulation of these provisions clogs the contract with terms that obscure the fundamental business transaction and do little to help the parties achieve success. Moreover, they may have been drafted to stop a problem that doesn’t even exist in an IPD project. Drafting an IPD agreement requires forgetting as well as creating. The IPD craftsman should draw on experience, but not be bound to it, because IPD presents a different set of issues that require new responses. If all of the parties and their principal representatives have prior IPD experience, you can begin by developing the intersection of interests—or if they are all highly experienced with IPD and with each other—may move directly into documenting the agreement. But in current practice, a significant number of the participants (including their counsel) will have little IPD experience and will not understand what IPD is and why IPD works. Thus, they will raise concerns and propose solutions that are valid in other contexts, but are antithetical to IPD principles and undermine the IPD agreement. Once taken, these positions are not easily abandoned and can derail or complicate negotiations. Three examples where prior contracting experience can actually impede IPD negotiation are set forth below. (a) Standard Construction Agreements