"Some vendors are more accustomed to seeing these terms than are others, and some vendors are accustomed to taking advantage of the absence of these terms," he says. "But keep in mind that since protecting yourself in this way does constrain the vendor, the protection you seek is not free. As long as the vendor's request is remotely near reasonable, it's worth the extra cost. If the request is clearly unreasonable, it could be a signal that the vendor has in mind something other than a fair deal."
IT divorce tip No. 6: Take a long look in the mirror
Before you file the divorce papers, it's a good idea to pull back from the brink and ask whether your own actions have contributed to the problem, and if it's not too late to make things right.
"Usually both parties to a conflict contribute something," says Brenner. "Before taking any action, check that you've done everything you can to straighten things out on your side of the fence."
For example, there may be conflicts between your employees and the vendor staff. You may have done a poor job communicating what you want or have had unrealistic expectations about what the vendor can really deliver. Small vendors or solo practitioners may possess valuable expertise but might just be overloaded from time to time and fail respond in a timely manner.
Brenner says many organizations fail to pay enough attention to "vendor relationship management" (VRM), which can affect all of their relationships with outside firms.
"If you're doing proper VRM, conflict between your staff and vendor staff should not be news," he says. "It will never turn toxic enough to threaten the relationship, because you'll have the situational awareness necessary to intervene constructively long before the conflict reaches that point. For clients, it takes real effort to maintain the kind of relationship you have with your IT vendors -- especially those who do custom development. Yet few recognize the full scope of this requirement in their budgets, and even fewer take it into account when making the vendor selection decision, or the outsourcing decision."
IT divorce tip No. 7: Consider counseling
A better alternative to a sudden split (and the resulting lawsuits) is building a dispute resolution mechanism such as mediation or arbitration into the service agreement, says Ethan Katsh, director of the National Center for Technology and Dispute Resolution at the University of Massachusetts Amherst.
With mediation, a neutral third party works with the parties to find a mutually satisfactory outcome. In arbitration, a third party decides who's right, and the disputants are legally bound to honor the decision.
"Mediation has a significant advantage because if any outcome is reached it's because both parties wanted it," Katsh says. "At the end of a successful mediation, both parties walk away happy."
The advantage of arbitration is that you know you'll end up with a resolution, although you may not like the results. Managed well, the dissolution could enable you and your vendor to work together again in the future.
But don't count on it.
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