ArticlePDF Available

Cooperation through clarity: Designing simplified contracts

Authors:
  • Simplification Centre

Abstract and Figures

This paper reports a case study of an innovative contract simplification project. The context is an energy industry facility to be built in northwestern British Columbia, Canada, where it is important to gain social license from Aboriginal communities by sharing employment opportunities. However, the complexity of contract documentation was seen as a barrier to local small contractors. This project transformed a complex document set by using principles of clear information design, both at the structural and detailed level. The principles used are explained in the form of a pattern library that lists potential solutions to common communication problems for contract documentation.
Content may be subject to copyright.
Cooperation through clarity: designing simplied contracts • 2016 1
Cooperation through clarity:
designing simplied contracts
Robert Waller, Jenny Waller, Helena Haapio, Gary Crag
and Sandi Morrisseau
This paper reports a case study of an innovative contract simplication project.
The context is an energy industry facility to be built in northwestern British
Columbia, Canada, where it is important to gain social license from Aboriginal
communities by sharing employment opportunities. However, the complexity
of contract documentation was seen as a barrier to local small contractors.
This project transformed a complex document set by using principles of clear
information design, both at the structural and detailed level. The principles
used are explained in the form of a pattern library that lists potential solutions
to common communication problems for contract documentation.
Bringing clarity to contracts
In recent years there has been growing interest in applying the principles
of clear information design to contract documents. This reects a growing
realisation that, in addition to accurately recording requirements and
business terms, they also need to work as communication tools. Considered
as communications, they are judged not only for their accuracy and legal
soundness, but also by the degree to which they enable a good working
relationship, cooperation and effective contract management.
As Tim Cummins (2016), CEO of the International Association for Contract
& Commercial Management (IACCM), remarks:
‘Contracts today are too complicated. The process through which they are created
remains a mystery to many and the resulting content is often unintelligible. Yet
effective communication lies at the heart of trading relationships and trading
relationships are increasingly at the core of a technology-driven world, so we need
practical instruments that gather and record commitments and obligations… In
just a few years, we will look back and wonder why it took so long to make our
contracts intelligible to the mass of people they affect. As contracts become more
important, social and economic pressures are combining to force a rethink in how
we design, structure, compile and disseminate our formal agreements.’
Roxenhall and Ghauri (2004) identied a number of purposes of contracts
in business relationships, but found little relation in practice between the
style of contract document and the type of relationship – for example,
they expected to nd (but did not) very clear, lucid contracts in cases
where the relationship was a concrete, transactional one. This points to
contract documentation as an immature area of practice, and to the need
2016
This is a manuscript of an article
accepted for publication in the
Journal of Strategic Contracting and
Negotiation.
To cite this article, please refer
to the published version: Robert
Waller, Jenny Waller, Helena Haapio,
Gary Crag and Sandi Morrisseau
(2016), Cooperation through clarity:
designing simplied contracts,
Journal of Strategic Contracting and
Negotiation. Published online before
print September 27, 2016
doi: 10.1177/2055563616668893.
Acknowledgements
Thanks to the many people we
consulted during this project and
the editors and reviewers from
the Journal of Strategic Contracting
and Negotiation, for their helpful
comments.
The authors
Rob Waller and Jenny Waller,
Simplication Centre, London.
Helena Haapio, University of Vaasa,
Department of Economics and
Business Law / Lexpert Ltd, Helsinki,
Finland
Gary Crag and Sandi Morrisseau,
Nexen Energy ULC, Calgary, Canada.
To contact the authors:
rob.waller@simplicationcentre.org.uk
Cooperation through clarity: designing simplied contracts • 2016 2
to introduce more reliable, more professional approaches to document
drafting and design.
Consumer contracts have to some degree led the way, which is unsurprising
given that they have to address the whole population, with obviously
different ability levels. Regulations such as the European Consumer Rights
Directive1 require the use of clear and comprehensible information for
consumer contracts, and experimental studies have demonstrated that
loan documents and credit card agreements can benet from a new, more
user-friendly approach (US Consumer Financial Protection Bureau CFPB,
2011; Siegel and Etzkorn, 2013). Further projects have aimed to simplify,
for example, an online game’s terms of service, a rail network’s disclaimer,
and a law rm’s standard terms of engagement (Clarity2010 Blog, [no
date]; UK Ofce of Fair Trading OFT, 2011). Several projects have looked
into the simplication of online Terms & Conditions, end-user licenses, and
privacy policies through the use of icons (for a summary, see Lannerö, 2013;
for updates, see also CommonTerms, [no date]). For example, Creative
Commons licenses use simple icons which can be clicked on to reveal a
plain-language version of the license terms: the icons inform users about
the possibilities and limitations of, for instance, sharing or remixing the
licensed content (Creative Commons, [no date]).
Research and experiments in commercial contracting and public
procurement show that the principles of clear communication design can
be applied beyond consumer contracts (for commercial contracts, see, e.g.,
Passera, 2015; Passera and Haapio, 2013; Haapio, 2013a and 2013b. For
public procurement, see Passera et al., 2013). These studies, and the present
one, result from collaborations between contract experts and designers.
Information designers are experts in clear communications, applying
principles of clear writing and visual design to make information easy to
understand and apply. These principles are underpinned by user-testing,
research studies, theoretical models and the application of concepts from
neighbouring disciplines such as cognitive psychology, applied linguistics,
and vision research. Information designers typically work on functional and
transactional documents such as forms, user guides, signs and interfaces,
and their toolbox includes simplied language, typographic structuring,
icons and diagrams.
In this paper we present a project to apply information design concepts to
a set of complex contract documentation used by a global energy company,
Nexen Energy ULC (Nexen), a wholly-owned subsidiary of CNOOC Limited,
to enhance its engagement with small contractors from local and Aboriginal
communities in northwestern British Columbia, Canada.
1 2011/83/EC, http://ec.europa.eu/consumers/consumer_rights/rights-contracts/directive/
index_en.htm
Cooperation through clarity: designing simplied contracts • 2016 3
Introduction to the Nexen project
Because of the level of risk, the complexity of the work, and the scale of
projects, contract documentation for the oil and gas industry inevitably
appears complicated to a non-expert. In practice this is not necessarily a
problem, because in professional settings individuals become skilled in
navigating and interpreting information that might be quite challenging at
rst view.
However, complexity is starting to present itself as a problem as Nexen
embarks on a new project in a new area, with new political and social
pressures. Aurora LNG is a joint venture between Nexen Energy and INPEX
Gas British Columbia Ltd. They are studying the design, construction and
operation of a liqueed natural gas (LNG) facility and marine terminal on
the coast of British Columbia. An important aspect of its success is obtaining
social licence – the development of a trusted relationship with local and
Aboriginal communities, who want to share benets from employment
and business opportunities. The Aurora LNG team seeks to accomplish this
through collaboration and a commitment to developing strong, mutually
respectful relationships. However, the complexity of the current contract
documents is seen as a barrier by smaller companies from local and
Aboriginal communities.
Social and cultural background
In Canada, Aboriginal Peoples are the First Nations, Métis and Inuit whose
rights are recognized and afrmed in Canada’s Constitution Act 1982. It
would be too simplistic to group all Aboriginal communities together –
there are signicant differences between, for example, Treaty Indians who
are from bands who signed one of eleven treaties between 1871 and 1922,
and those who remain outside this process. Additionally, there are Métis
communities with mixed First Nations and European ancestry. And there
are the Inuit who are the Aboriginal people of the Arctic. Corporations need
to be sensitive to these distinctions when managing community relations
– for example, they cannot assume that simply employing an Aboriginal-
owned contractor will be acceptable, if that contractor is from a community
other than the one that controls the work site.
The Aurora project represents a change for Nexen from dealing largely
with treaty communities in the oil sands area of northeastern Alberta, to
‘non-treaty’ communities in northwestern British Columbia (BC).
In the areas of BC where the Aurora project is being developed, the kinds
of services Nexen, as operator of the Aurora LNG project, is seeking from
local communities may include catering, land clearance, guiding services,
platform construction for drilling equipment, guides and medics and marine
and land studies. While it would be easy enough for individual project
Cooperation through clarity: designing simplied contracts • 2016 4
managers to bring in established rms from outside, Nexen recognizes that
it needs to work with local communities to build capacity, so they match
the outside competition. Aboriginal people are interested in participating
and working with industry to share in the benets of resource development
taking place on their traditional territories.
So the importance of earning social licence is critical. As one commentator
puts it, ‘Social licence can never be self-awarded, it requires that an activity
enjoys sufcient trust and legitimacy, and has the consent of those affected.’
(Morrison, 2014).
Capacity building will have to take a number of forms, which may include
training and mentoring. It may also involve making allowances for any
educational disadvantages suffered by remote communities, including
Aboriginal communities. Dominique Collin, reporting on Aboriginal
nancial literacy, suggests that many small and medium-sized enterprises
(SMEs) offering such services in Canada are likely to share the same kinds
of challenges: ‘Aboriginal individuals, entrepreneurs and communities have
been affected by nancial literacy challenges in many of the same ways that
lower-income people and remote populations have’ (Collin, 2011, page 3).
Interviews with contractors and procurement sta
Early in the project we conducted interviews over several days with a range
of stakeholders:
Representatives from 7 Aboriginal-owned contractors in the oil sands
region of Northeastern Alberta
10 Nexen staff responsible for Aboriginal and community relations
3 members of Nexen’s legal team
3 members of Nexen’s procurement team.
The interviews followed a structure which was shared in advance:
Your experience of what happens at the moment
What needs to change
What a simple and inclusive bidding/contracting process would look like
What the documentation would look like
What Nexen would gain from simpler, more inclusive contracting
processes
What might be lost
Any barriers you can foresee.
Although the Aurora project is in BC, the Alberta-based contractors were
able to give us good insight into their experiences of bidding for work from
companies such as Nexen.
Cooperation through clarity: designing simplied contracts • 2016 5
In all except one case where permission was refused, interviews were
recorded and transcripts obtained for analysis. In the account that follows
we identify the source of comments as contractors (C) and Nexen staff (N).
The contractors were speaking generally, not specically about Nexen’s
contracts (in fact, most of them were not currently working with Nexen).
Both groups agreed that the documentation was a problem:
‘Doing the bids is an overwhelming task. We’ve been doing it for 10 years and we
still have to read everything in case something’s missing.’ (C).
We identied several strategies for managing this complexity:
Ignoring anything they cannot understand;
Guessing at meaning based on a perception of what is likely to be
normal practice;
Paying for expensive expertise such as legal advice;
Staying up late and working through it;
Giving up and not bidding.
With the exception of retaining outside counsel (which adds cost), these
strategies are worrying and indicate a potentially dysfunctional relationship
between buyer and bidder. The bidder’s attempt to bid for the right work,
and comply with the terms of business is partly based on guesswork.
And the buyer can only hope that the price has been based on a correct
understanding of the scope, and that nothing will go wrong.
In practice, the success of any project will depend on human qualities of
cooperation, mutual effort, communication and trust – which are actually
qualities prioritised in Aboriginal culture.
Four challenges for better documentation
The interviews, together with our analysis of the documents and the
bidding process, pointed to four distinct challenges for the project:
The challenge of one-size-ts-all;
The challenge of simplicity;
The challenge of functionality;
The challenge of relationship.
The challenge of one-size-ts-all
In most companies detailed attention is paid to the documentation for
signicant projects where the risks are high. Procurement staff are assisted
by their legal departments to ensure that contract wording is watertight,
and that key risks are covered. This can mean that not only are the general
Cooperation through clarity: designing simplied contracts • 2016 6
terms and conditions written in a necessarily formal legal style, but so are
other documents that dene requirements and scope.
The same standards may then be applied to other projects which are
smaller and less risky, and where suppliers are mostly SMEs. But there is
an increasing recognition that this one-size-ts-all approach may not be
appropriate in certain circumstances.
Recent research in both private and public procurement reveals that the
issues raised in our interviews with Aboriginal companies are not unique
to this community, but are typical of SMEs generally (Haapio, 2013a and
2013b; Patajoki, 2013). If the bidding process or documents seem too
complicated or time consuming, the SMEs are unlikely to bid. Further, if the
bidders do not understand the contracts they enter into, misunderstandings
easily lead to a breakdown in relationships and poor or late delivery.
At Nexen, front line managers acknowledged the realities of working with
First Nations contractors on small-scale, low risk projects.
‘Often the risk prole and the consequence prole of that work is not that critical
quite frankly. Primarily, I need to know that they are going to follow our safety
rules, that their people are trained and are keeping their equipment in good repair
and that their health insurance is up to snuff. But that is such early work, it’s not
that they are going to take down a multi-billion dollar facility because there’s no
facility there yet.’ (N)
Instead, it is argued, the emphasis should be on the use of simpler contracts
that better suit this audience, and that reect the level of risk involved.
Nexen is not the rst company to consider simplifying contractual
documents. There are a number of precedents to act as a point of reference.
For example, the in-house legal team at Scottish & Newcastle plc, the UK
brewery, developed a new contract format they call Pathclearer. They found
that in many cases, detailed contract terms were unnecessary because
they are covered by general law, and that too much detail could actually
be an obstacle to doing business (Colquhoun, 2007; Weatherley 2005. See
also Siedel and Haapio, 2011: 119-121). They moved from conventional
contracts – tens of pages and exhibits full of dense text – to a brief letter
agreement that drastically reduced the length and complexity of the
document set.
In another case, Agilent Technologies implemented a ‘50/50/500 Plan’
for simpler contracts, with numerical goals: reduce the length of most
common agreements by at least 50 percent; reduce negotiation cycle time
by 50 percent; and provide more empowerment on contract terms for
deals of $500,000 or less. One case was telling – a services division had
consolidated six different exhibits describing six different services into one
document. This seemed to be a simplication from their point of view, since
they did not need to worry about which set of terms and conditions to use
Cooperation through clarity: designing simplied contracts • 2016 7
when preparing quotes and processing customer orders. However, less
complexity for Agilent meant more complexity for customers: rarely did a
customer require more than one of the services described in the contract. So
as part of their 50 percent simplication goal, Agilent broke the document
apart and re-drafted it into six separate documents, none longer than three
pages. The resulting experience was much less complex for the customer.
(Barton, 2008)
Perhaps the best known and earliest simplied contract was the 1993 New
Engineering Contract (NEC) (Barnes et al., 1986; Broome, 2012), described
on the NEC website as
‘… a radical departure from existing building and engineering contracts, being
written in plain language and designed to stimulate rather than frustrate good
management.’ (NEC, [no date], their emphasis)
It tackles the challenges posed by complex construction projects by
prioritising clear and accessible content, recognising project roles, and
focusing on management rather than rights and responsibilities. Its
philosophy is to prioritise the positivity of co-operation over compliance
enforced by threats.
At the heart of the NEC is a new creed that Project Management techniques can
be successfully written into a main contract to produce more co-operation, more
efciency and fewer disputes. There is also, of course, the implicit assumption that
the terms of the contract can affect the way in which the contractor performs the
work. The boldness of the new approach cannot be overstated.’ (Uff, 1991, our
emphasis).
Uff’s last comment may be taken as a warning that implementing simplied
contracts may not be straightforward. The new approach represents a
paradigm shift – a fundamental change in the way we perceive contracts
– and as such may be seen as an existential threat by practitioners of the
traditional approach. McInnis (2001) analyses the debates that met the
NEC in some detail – for example, between those who were concerned
that new simpler wording would lose the certainty of precedent, and
those who believed that greater certainty would in fact result from clarity
of expression. These issues may partly explain why the NEC approach,
although widely used in construction, has not spread far into other sectors.
The challenge of simplicity
Earlier we discussed the need to build capacity and capability amongst
small business owners. This means, in effect, building what we might term
‘contract literacy’ – a familiarity with the processes and documentation used
by large corporations. But general literacy may also be a problem.
Like many advanced countries, Canada report major problems with literacy
skills:
Cooperation through clarity: designing simplied contracts • 2016 8
‘The majority of jobs in Canada require at least IALS Level 3 literacy skill, yet 43%
of all students leaving Canada’s high schools still do so with Level 1 and 2 skills1.
Some students obtain their grade 12 diploma but don’t have the skills that the
level of education implies.’ (Harwood 2012, page i).
Around 15% do not complete high school – this rises to 34% in First
Nations communities overall and 50% on reserve (George, 2008), which
means that a considerable number of otherwise capable and intelligent
people are hard to reach through complex documents.
These statistics help us to set a realistic readability2 baseline for our target
audience, to ensure that the level of difculty of the text is audience-
appropriate. For communicating with the general population, Microsoft
guidelines recommend a Flesch Reading Ease score of between 60-70
(higher scores are easier) and a Flesch-Kincaid Grade Level of between 7-8.
In the light of the statistics above, we would aim for the lower end of these
recommendations. For example the Canadian Health and Wellness Centre
(www.chla-absc.ca) recommends a Grade score of 6-8 for effective health
materials.
In practice, readability scores should not be interpreted too rigidly –
the formulae are not designed for use with highly structured text, and
it is inevitable that for any specialist purpose, such as contracting and
engineering, technical terms are bound to be present. But we can mitigate
the risk that something might not be understood, by providing denitions
and guidance notes for example.
The factors inuencing readability are well researched and summarised in
any number of plain English how-to guides (for example, Cutts, 2013). The
central rules for simple language include short sentences, common words,
personal pronouns (‘you’ and ‘we’) and active verbs.
In the event of substandard performance, insubordination, illness, professional inadequacy,
incompetence, misconduct, non-compliance with the Rules of Work or otherwise unacceptable
conduct by any Personnel, as determined in the sole discretion of Owner, Owner may require
the replacement of such Personnel by notice to Contractor and Contractor, at its sole cost, risk
and expense, shall replace such Personnel as soon as possible.
Figure 1. A clause typical of many companies’ general terms and conditions.
The clause quoted in Figure 1 has a readability level of Grade 12. The plain
English rewrite in Figure 2 brings the action to the front, personalises the
language, simplies the list of transgressions and returns a readability score
of Grade 3.7.
2 By “readability” we mean specically the calculations carried out by Microsoft Word using the Flesch
Reading Ease and Flesch-Kincaid grade level tests.
Cooperation through clarity: designing simplied contracts • 2016 9
We can ask you to replace any of your people if, in our view, they:
Are doing a poor job
Misbehave
Disobey the Rules of Work
Become ill.
We will give you notice, and expect you to replace them as soon as possible,
at your own expense and risk.
Figure 2. The clause from Figure 1 rewritten in plain English.
Whether or not it is legally watertight, the rewrite is more likely to be read,
understood, communicated on within the contractor’s team, and acted
upon.
The challenge of functionality
Of course the documentation is not just there to be read in the sense of
decoded. It has to be used effectively to guide those bidding for the work
and eventually doing it. Contracts typically include information that might
be considered work instructions – the scope and requirements documents
are very obviously in this category, so are various sections of the general
terms and conditions for many contracts. For example, they typically
cover obligations to pack goods correctly, practices when working on site,
reporting obligations, systems for inspecting and accepting work, and the
information required on invoices. Managers need to be able to nd and
use this information, so what happens in practice is that it gets repeated in
other documents, such as invoicing instructions that might accompany a
purchase order. This can lead to version control problems when revisions
are made. We should note that making sense of apparently discrepant
information requires inference, one of the most complex of literacy
challenges.
The ability to use documents effectively is known as ‘document literacy’ –
a form of literacy that goes beyond reading the words to include strategic
reading – searching documents for answers to questions, assembling
information from different documents, and determining the relevance
of information. Effective documents are structured around their users’
strategic needs to access different information at different times for
particular purposes. A good user manual, for example, includes numerous
access devices such as contents lists, index, headings, icons, section tabs
and alternative layouts to suit different content structures.
The challenge of relationship
The fourth challenge was the role the documentation plays in building good
relationships with stakeholders.
Cooperation through clarity: designing simplied contracts • 2016 10
Nexen actually has a reputation for excellent front-line relationships:
Any contact I’ve had with anyone in Nexen has been really good. I think they have
a good attitude.’ (C)
‘The Nexen culture is instinctively inclusive.’ (C)
However, Nexen managers realised that this could be undermined by the
formality of the documentation.
‘The tone of our communications can be really formal…First Nations can be really
sensitive to the tone. It’s better face-to-face – the ‘no emails between strangers’
rule.’ (N)
Relationship-building documentation would not only be more accessible
in terms of its language and design but also more culturally aware, for
example by replacing the directive nature of legal language with a more
invitational tone acceptable to Aboriginal groups, and offers of personal
contact by phone or meetings.
The rst prototype
Early in the project we developed a prototype of one simple document to
respond to these four challenges, to illustrate these learnings, and to get
feedback from our interviewees within Nexen and among the contractors.
PROPOSAL REFERENCE: NXC-123456
TITLE: North Pines Project, Trucking Services
Page 2 of 21
Logo
CONFIDENTIAL AND PROPRIETARY
February 25th 2014
REQUEST FOR PROPOSAL
PROPOSAL REFERENCE NO. NXC-123456
North Pines Project
Trucking Services
Dear Sir or Madam:
Example ULC (“Owner”) hereby invites your organization to submit a competitive Proposal for
Trucking Services. The proposed form of contract is attached hereto (the “Contract”) and
should be consulted for details of the Services (as such term is defined in the Contract). The
Services are to be priced on a reimbursable basis as further described in Exhibit B (Commercial
Terms) of the Contract.
Attached to this Invitation Letter are the following documents:
1. Acknowledgement of RFP;
2. Instructions to Candidates;
3. Proposal Letter; and
4. Contract,
(collectively, the “RFP”).
Please confirm receipt of this RFP and indicate your intention to Proposal by returning the
Acknowledgment of RFP to the undersigned by fax or email within two (2) working days of
receipt. If you do not wish to Proposal, you must delete the RFP and fax or email the completed
Acknowledgment of RFP indicating your intention not to do so. Your courtesy of formally
declining to Proposal is appreciated.
All information contained in this RFP is the confidential and proprietary information of Owner
and must be treated as such by your organization and not used for any purpose whatsoever
except for assessing whether or not you will Proposal and for preparing your response.
For direction in completing your Proposal, please refer to the Instructions to Bidders and the
attached form of Proposal Letter. It is important that you comply with all requirements by
completing the documentation as specified and submitting a Proposal in accordance with the
RFP. Failure to do so may result in your Proposal not being considered.
Each bidder will be informed as to whether or not its Proposal was successful.
All Proposals must be received at the address noted in the “Instructions to Candidates
no later than noon (12:00 p.m.) Calgary time on Marc h 11th 2014.
Yours truly,
EXAMPLE ULC
Lee Patrick
General Manager, Contracts
Figure 3. The RFP covering letter before our transformation.
Cooperation through clarity: designing simplied contracts • 2016 11
The initial invitation
Figure 3 shows a Request for Proposal (RFP) covering letter. We chose this
as an initial prototype since it sits outside the formal bidding document,
has limited information to convey, and can be taken as the normative voice
of the organization as it talks, sometimes for the rst time, to potential
suppliers. In other words, this letter should represent the organisation at its
clearest.
It is immediately apparent from the words ‘hereby’ and ‘hereto’ in the rst
sentence that this letter is legally framed – it is written in the same style
and tone as the terms and conditions, the core legal component of the
contract. The content is dominated by procedural compliance, rather than
the services being requested.
Mr A Supplier
[Address 1]
[Address 2]
[Address 3]
12 February 2016
Dear Mr Supplier
.
We need site clearing and trucking services
We need contractors to provide trucking services for our North Pines
project. For more details about the work, see page 2, called About the
work.
You can find out more about working with us at
www.example.com/working-with-us.
Are you interested?
If you are interested in this work, please fax or email us the
blue Let us know form (page 3) by [date and time].
What happens next
When we have your reply, we may send you:
A proposal form, with notes about how to complete it
A copy of our Terms and Conditions. These are supplied for
information purposes only.
We look forward to hearing from you.
Lee Patrick
Lee Patrick
Contracting Manager
Read about the work:
page 2
Let us know if you
are interested: page 3
Let us know by:
12 March 2016
12 noon
Any questions?
Phone me direct on
123 456-7890
or e-mail:
leepat@example.com.
Logo
Figure 4. A draft of the new letter prototype, using a ctional project and location.
Figure 4 shows a draft transformed letter which addresses our four
challenges:
The challenge of one-size-ts-all: we avoid formal language, which might
be appropriate for larger organisations and projects, and instead focus on
describing the job and bidding process in simple terms.
Cooperation through clarity: designing simplied contracts • 2016 12
The challenge of simplicity: we use plain English throughout, in a
conversational style.
The challenge of functionality: information is chunked, with clear action
oriented headings that make the structure clear. Coloured coded icons link
to enclosures and spell out the process.
The challenge of relationship: the letter is now personalised, and includes an
invitation to phone direct with queries. The implied power relationship is
more balanced (‘We need…’, ‘Are you interested?’).
Accompanying documents
The original letter is accompanied by substantial documentation, including
a 44 page set of general terms and conditions. Our alternative starts with
a simple three page document set: the covering letter (Figure 4), a one
page summary of scope, and an expression of interest form (Figures 5
and 6). The result is less intimidating, and makes it more likely that small
contractors in the new area of operation would respond. Obviously the
general terms and conditions would eventually be supplied, but only after
the bidder has expressed interest in the opportunity. This uses a principle
known to information designers as progressive disclosure – the gradual
revelation of complexity in steps, as the user demonstrates they are engaged
with the topic.
The summary of scope includes a description of the overall context for the
services that are sought, with a location map. There is also decision support,
in the form of a simple description of the task, the people and equipment
needed. The form makes it clear what action is needed and by what date,
and removes the need to write a formal letter in response.
Cooperation through clarity: designing simplied contracts • 2016 13
Figures 5 and 6. Pages 2 and 3 of the new letter prototype, using a ctional project and location.
Transforming the full Request for Proposals (RFP)
These prototypes were initially developed to demonstrate what an
alternative approach might look like, before we moved on to consider how
the full document set might be transformed.
The full document set for a typical contract comprised:
RFP instructions;
Signature document;
Exhibit A – general terms and conditions;
Exhibit B – commercial terms (such things as rates, prices, rules for
invoicing), with various attachments;
Exhibit C – scope (what is required and the manner of its delivery), with
various attachments;
Exhibit D – equipment (what is to be provided by Nexen, and what by
the contractor).
The function of these documents is not entirely distinctive. Many issues are
dealt with in both Exhibit A and one of the others (invoicing for example).
This might work if B, C and D were plain language operational documents,
governed by corresponding legal clauses in A (and that is one direction the
redesigned contracts could take). But the default tone of voice is technical
and legal throughout the whole document set, not just the general terms
and conditions. This means that contract documents are hard to write, just
More about the work
North Pines
The
North Pines project is about building a
storage depot
plant near North Pines, Alberta.
We need to clear
30 acres of land near North Pines.
This includes:
Tree
-felling
Clearing the ground
Preparing the ground for a storage depot.
We
welcome expressions of interest from anyone with the right equipment and
experience to carry out this work. We especially welcome interest from local
contractors who know the land and how to work in this environment.
The work may require:
A team of around 10 people
Chainsaws and other cutting equipment
A truck
A back-hoe.
Please note that this is just a request for information at present, a nd this letter
is not a tender, and does not commit either you or us to a contract.
If you have any
questions please contact me:
Lee Patrick
Phone:
123 456-7890
Fax:
123 456-7891
E-mail: leepat@example.com.
North Pines
Let us know if you are interested
If you are interested in this work, please send this form back to us by
12 noon
on 12 March 2016,
so that we can send you more information
Email:
suppliers@example.com.
Mail:
Procurement, Example ULC, 123 4th Street, Calgary AB AB2 3CD
Fax: (123) 456-7890
I am interested in project
EX-123456:
Site clearing and trucking services
Signature
Date
Contact name:
Company:
Full legal name and
jurisdiction
Address
Phone
Fax
Email
Would you like us to contact you by
Canada Post Email either of these?
Yes Please give us your supplier number
No We will write to you with more information
Cooperation through clarity: designing simplied contracts • 2016 14
as they are hard to read. Assembled from component parts, the result may
not cohere as well as it should, and rules of considerate writing get broken.
We have already mentioned the problem of divergent versions when
information is repeated. Another common problem is what we might call
false precision, where, for example rm quotations are required for services
that ‘shall consist of but not be limited to the following’. Or where, although
the contract is on a call-off basis and may in theory not lead to any actual
work at all, all equipment is apparently required to be on site for the
commencement of the contract. The bidder ‘knows’ at a common sense level
that this clause should not be taken literally, but they also need to know
that other clauses cannot be so ignored – those about safety or insurance,
for example.
A genre perspective
The term ‘genre’ refers to common document types for which we have
names – words like ‘magazine’, ‘novel’ or ‘catalogue’ call to mind a
particular combination of typical format, language style and appropriate
reading strategy. Genres like these have evolved over many years, as
producers of particular kinds of information seek to attract users (Waller
1991). For example, whereas a novel typically presents uninterrupted text
intended for a long spell of comfortable reading, a catalogue prioritises
quick search. So a good catalogue provides structural cues such as colour
coded sections, or headings that can be easily spotted in a quick scan. A
catalogue that fails to do this results in few sales.
Where documents seem not to work well, it is often because an imbalance
in power relations has not encouraged document producers to take account
of the needs of users in the same way. Traditional administrative forms,
for example, are notoriously poor because users have little choice but to
cope. They are, in effect, a poorly evolved genre, designed without a user in
mind. The user is similarly absent from the traditional format of contracts
and other documents with a legal status.
In the absence of training, or theoretical knowledge about document
design, the genre perspective enables document producers to make use
of their personal experience and cultural awareness. They can identify
common document types which most closely match the needs of their own
users, and use them as a starting point for their document transformation.
The example genres we listed at the start of this section are clearly
inappropriate, because their content and anticipated user behaviour is
very different from that of contracts. For example, a novel locks readers
into an undifferentiated linear path, while a magazine is loosely structured
for casual browsing. In contrast, users of contracts need a document that
leads them systematically through essential content and that reliably leads
Cooperation through clarity: designing simplied contracts • 2016 15
to correct action. It needs to be comprehensive, accessible and easy for
document producers to maintain. The document genre which has best
evolved to solve this set of problems is the user guide.
Good user guides work because they are designed around the user’s
experience. When we buy a product or service, we need to know how
to set it up, how to integrate it into our habitual routines, and how to
x something that has gone wrong. We rarely read a user guide straight
through – instead we move in and out of the guide in response to tasks
and events. So the best guides have clear systems of hierarchical headings,
diagrams and icons, and layouts that allow readers to skim quickly in search
of answers to questions.
Contracts as user guides
In our transformed contract documents, we took inspiration from the user
guide genre. We searched for information in the contract documentation
that is focused on practical actions, and extracted it to create three generic
user guides:
Guide to Pricing: the content for this guide was derived mostly from
Exhibit B (commercial terms). It explains what quoted costs should cover
(for example, whether the hire of equipment includes the operator, fuel
and maintenance), how to deal with change requests and similar issues.
Potentially this guide could be developed in several versions to suit
different audiences – for example, a technical version for more complex,
sophisticated projects, and a simple, didactic version to help smaller
businesses learn about pricing.
Guide to Project Management and Reporting: At various points in the
document set, there are scattered references to reporting requirements.
These include regular reports to be sent every month, and incident reports
that need to be sent if there is an accident, spillage, labour dispute or
similar event. This is largely a generic document, but it could be customised
to include actual dates and reporting lines for the project in hand.
Guide to Invoicing: Nexen already had an excellent guide to suppliers called
‘How to get paid’. We took the view that, since this should be completely
consistent with the requirements separately specied in the contract, it
should be merged into a single guide. This could then be referenced by the
contract rather than repeated there.
Figures 7 – 9 illustrate our application of the user guide genre to the Guide
to Invoicing.
Cooperation through clarity: designing simplied contracts • 2016 16
1
Guide to invoicing
Where to send your
invoices
Send your invoices to:
Example ULC, Attention: Accounts Payable,
Box 1234, Station X, Calgary, Alberta A1B 2C3
Courier delivery: 123 4th Ave, Calgary, Alberta A1B 2P3.
You can also use e-invoicing for faster payment.
To register, contact us at e-invoice@example.com
When to invoice
Invoice us at the end of each month.
Make sure you invoice us regularly, and within 60
days of delivering the
goods or completing the services.
Include all the goods provided or services completed during the period.
When we will pay
We aim to pay you 30 days after we have received your invoice, so long
as it
has the correct information an
d back-up documentation.
Remember: you must back up your invoice with documents that prove the
goods or services were delivered, to avoid payment being delayed or
even refused.
Rejected invoices
If your invoice does not have the correct
information, we will have to return it
to you. The 30 days payment term will then start from when we receive your
corrected invoice.
How we pay you
We prefer to pay you by direct deposit.
To enrol for this, please call us on (
123) 456-7890
or email us at
vendor-banking@example.com
You mail
an invoice
You mail
an invoice
We receive
your invoice
30 days
You mail a
new invoice
We receive
the correct
invoice
We receive
your
invoice
We return
the invoice
for correction
30 days
Payment date is
30 days from when
we get correct invoice
Payment date is
30 days from when
we get correct invoice
You mail
an invoice
You mail
an invoice
We receive
your invoice
30 days
You mail a
new invoice
We receive
the correct
invoice
We receive
your
invoice
We return
the invoice
for correction
30 days
Payment date is
30 days from when
we get correct invoice
Payment date is
30 days from when
we get correct invoice
Logo
Figure 7. The draft of the guide to invoicing
Figure 7 shows the focus on action, and the use of graphic support through
icons and visualisation (the timelines show the payment date, and the
effect of a rejected invoice). It is designed to be clear to someone whose
job is to create invoices – although this is a routine task, this person may be
responsible for billing several clients, each with their own rules for correct
invoicing.
To make the job even easier, an invoice template (Figure 8) is provided.
Because it provides a place for all the correct information, using it helps
the supplier to know they are compliant. And the required reference
information is further dened in a separate illustration (Figure 9).
Cooperation through clarity: designing simplied contracts • 2016 17
2
Any problems?
Questions about invoice coding
or to get your PO number: call the
ExampleCo
representative who requested the goods or service.
Changes to your Vendor Information
: (such as your legal name, contact
n
ames, address, bank). Call Accounts Payable Customer Services on
(
123)456-7890.
Past due invoices:
Call Accounts Payable Customer Services on
(123)456-7890.
Invoice template
Below is an example invoice showing the information required for a correct
invoice. See the notes that follow it.
Your invoice does not have to look exactly like this, but must contain the
same information.
You can download a template from
www.example.com/templates.
Example Energy ULC
[insert division]
Attention: Accounts Payable
Box 2727, Station M
Calgary, Alberta T2P 5C1
Your Company Name
Your address line 1
Your address line 2
Post code
Tel: 012 345 6789
email: accounts@yourcompany.ca
INVOICE
Our invoice number 12345
Invoice date 31 October 2015
Example company code 123
Example contract number 123456
Example PO number 12345678
Example cost centre code 123
Example cost element 123
Example reviewer name A Jones
Invoice currency Canadian Dollars
Item number Description Amount
1 A200 widgets 30,000.00
2 Site engineer 3,740.00
Subtotal 33,740.00
GST 5% 1,687.00
TOTAL $35,427.00
Terms of business: 30 days from receipt of this invoice.
Our GST number: 123456789.
20% of these services were carried out outside Canada.
Contractor’s
signature
I certify that:
• the services listed in this invoice are
complete.
• the invoice is correct.
• no other invoice has been issued for
these services.
Signed
Name
Position in company
Your Company
List everything you
are invoicing for.
Include item numbers
to link the invoice t o
the Supporting
Information sheet.
Provide your
GST/HST and/or
PST registration
number(s).
Please give full
contact information in
case we need to call
you.
Call your ExampleCo
representative if you
need more
information such as
Purchase Order (PO)
number, or company
code.
You only need this
information if some of
the work was done
outside Canada.
This information is
only needed for non-
PO or blanket order
invoices
Show the GST/HST
and/or PST you are
charging on separate
lines. Include it even if
it is zero.
Don’t include any
sales tax that you
have paid to your
suppliers.
Please sign each
invoice.
Use the full name of
the ExampleCo entity
you are working for
as it appears on your
contract.
3
Reference
information to put
on your invoice
Your company name and address.
A clear heading saying ‘INVOICE’.
A unique invoice number that you have not used for any other invoices.
Invoice date.
The ExampleCo company code.
You will find the company code on your Purchase Order.
Your ExampleCo contract number, if you have one.
[note here about where to find it].
Your ExampleCo Purchase Order (PO) number and associated line item
numbers.
Only include one PO number per invoice.
If you have more than one PO, you need to send us a separate invoice
for each one.
For non-PO or blanket order invoices only:
ExampleCo cost centre code.
ExampleCo cost element.
ExampleCo invoice contact name.
You will find this information on your Contract documentation, or call your
ExampleCo Representative.
Invoice currency.
This must match the currency on your Purchase Order or Contract.
GST/
HST or PST
If you are invoicing for expenses or subcontractors
(whether at cost or
with a mark
-up), do not include GST paid by you to any suppliers or
subcontractors.
If the services are GST or PST zero
-rated or exempt, supply
documentation to support this. Include GST and PST as zero dollars ($0)
amounts on the invo
ice.
Note
: Other than the GST/HST or PST which you are required to charge on
the invoice
, you or your subcontractors are solely responsible for paying any
other taxes, duties and similar amounts assessed by government, and for all
filing requirements.
If you are a non
-resident of Canada for Canadian income tax purposes, you
must
identify in each province the amount payable for services rendered or
performed in Canada, excluding related expenses.
Example Energy ULC
[insert division]
Attention: Accounts Payable
Box 2727, Station M
Calgary, Alberta T2P 5C1
Your Company Name
Your address line 1
Your address line 2
Post code
Tel: 012 345 6789
email: accounts@yourcompany.ca
INVOICE
Our invoice number 12345
Invoice date 31 October 2015
Example company code
123
Example contract number
123456
Example PO number
12345678
Example cost centre code
123
Example cost element
123
Example reviewer name
A Jones
Invoice currency Canadian Dollars
Item number Description Amount
1 A200 widgets 30,000.00
2 Site engineer 3,740.00
Subtotal 33,740.00
GST 5% 1,687.00
TOTAL $35,427.00
Terms of business: 30 days from receipt of this invoice.
Our GST number: 123456789.
20% of these services were carried out outside Canada.
Contractor’s
signature
I certify that:
• the services listed in this invoice are
complete.
• the invoice is correct.
• no other invoice has been issued for
these services.
Signed
Name
Position in company
Your Company
Figure 9. Reference information is
explained in more detail using a
checklist format to reinforce the fact
that this is a rm requirement.
Figure 8. Rather than rely on a verbal
description of a correct invoice, we
include an example invoice that
would be compliant if used or copied
by the supplier.
Cooperation through clarity: designing simplied contracts • 2016 18
Icons, check boxes and colour-coding
The RFP document is designed as a form to be returned with the proposal,
ensuring bids are easily comparable, and reducing the burden on bidders to
produce a perfectly formatted submission.
It asks bidders to submit various proposals and reports with their bid. To
make it difcult to miss these actions, we include icons to cue a document
requirement, and we provide check boxes for bidders to conrm they
have taken the required action (Figure 10). A concern was raised that this
might seem patronising, but our collective view is that this gives valuable
reassurance to a new bidder that their bid is complete.
14
9. Quality management
Provide a Quality Management Proposal with the following information.
Your Quality
Management
program
Tell us about your Quality Management procedures, including:
(i)
the procedures used for the identification of non-compliance to standards
and codes, and for the correction of such non-compliance.
(ii
)the procedures used for obtaining approvals for engineering and design
changes.
(iii)
the procedures for working on live equipment.
(iv)
inspection and test procedures to be used for all inspections and tests,
and the manner in which the data from such inspections and tests are
recorded, and
If y
ou propose to use a subcontractor, explain how you will monitor their
compliance with the your Quality Management Program.
Check the box
I have enclosed a Project Proposal document with my response to this
Request for Proposals.
Figure 10. The RFP form includes icons to cue documents to attach, and checkboxes to conrm the action has
been noticed and carried out.
We use light blue areas (or light grey if printed in monochrome) for places
where a response is needed (Figure 11).
Cooperation through clarity: designing simplied contracts • 2016 19
3
Reference
information to put
on your invoice
Your company name and address.
A clear heading saying ‘INVOICE’.
A unique invoice number that you have not used for any other invoices.
Invoice date.
The ExampleCo company code.
You will find the company code on your Purchase Order.
Your ExampleCo contract number, if you have one.
[note here about where to find it].
Your ExampleCo Purchase Order (PO) number and associated line item
numbers.
Only include one PO number per invoice.
If you have more than one PO, you need to send us a separate invoice
for each one.
For non-PO or blanket order invoices only:
ExampleCo cost centre code.
ExampleCo cost element.
ExampleCo invoice contact name.
You will find this information on your Contract documentation, or call your
ExampleCo Representative.
Invoice currency.
This must match the currency on your Purchase Order or Contract.
GST/
HST or PST
If you are invoicing for expenses or subcontractors
(whether at cost or
with a mark
-up), do not include GST paid by you to any suppliers or
subcontractors.
If the services are GST or PST zero
-rated or exempt, supply
documentation to support this. Include GST and PST as zero dollars ($0)
amounts on the invo
ice.
Note
: Other than the GST/HST or PST which you are required to charge on
the invoice
, you or your subcontractors are solely responsible for paying any
other taxes, duties and similar amounts assessed by government, and for all
filing requirements.
If you are a non
-resident of Canada for Canadian income tax purposes, you
must
identify in each province the amount payable for services rendered or
performed in Canada, excluding related expenses.
Example Energy ULC
[insert division]
Attention: Accounts Payable
Box 2727, Station M
Calgary, Alberta T2P 5C1
Your Company Name
Your address line 1
Your address line 2
Post code
Tel: 012 345 6789
email: accounts@yourcompany.ca
INVOICE
Our invoice number 12345
Invoice date 31 October 2015
Example company code
123
Example contract number
123456
Example PO number
12345678
Example cost centre code
123
Example cost element
123
Example reviewer name
A Jones
Invoice currency Canadian Dollars
Item number Description Amount
1 A200 widgets 30,000.00
2 Site engineer 3,740.00
Subtotal 33,740.00
GST 5% 1,687.00
TOTAL $35,427.00
Terms of business: 30 days from receipt of this invoice.
Our GST number: 123456789.
20% of these services were carried out outside Canada.
Contractor’s
signature
I certify that:
• the services listed in this invoice are
complete.
• the invoice is correct.
• no other invoice has been issued for
these services.
Signed
Name
Position in company
Your Company
Figure 11. Coloured backgrounds are used to cue responses in the RFP form.
Communicating what we did: design patterns for clearer contracts
There are various possible ways to communicate information design
techniques so others can use them.
Templates are one possibility, but assume a consistent context of use
within the organisation they were designed for. Because they embody the
organisation’s particular practices and processes, someone adapting them
for use elsewhere needs to discern the reasons behind the designs so that
they retain or adapt only what is essential.
Earlier we introduced the concept of genre – and the user guide genre
was an important inspiration. But this is not a robust enough concept for
general use. There are many poor user guides, and some genres include
features that are vestiges of historical technologies, with no real function
today (for example, the half-title and title pages of a typical book). And
some useful techniques might come a mix of different genres or they might
be an original creation.
Cooperation through clarity: designing simplied contracts • 2016 20
Instead, we prefer to use design patterns to describe useful techniques in
terms of the functional problem they aim to solve.
Originating in architecture (Alexander et al., 1977), design patterns have
become widely used in software engineering and interface design (Tidwell,
1999), and in more recent times, among some information designers
(Waller, Delin and Thomas, 2012; Farkas et al., 2011). Haapio and Hagan
(2016) have proposed a pattern library for contract design, and Gerding
(2013) proposed a design pattern approach to contract content. Creating
design patterns is a naming exercise – identifying a useful, repeatable
solution to a common problem, then giving it a name and a description so it
can join a designer’s repertoire of potential solutions to similar problems.
Table 1, at the end of this document, lists the main design patterns we have
used in the transformed Nexen documents. We present them here as a way
to summarise our learning from this case study, and to list techniques that
might be applied to other contract documentation with similar user needs.
They are dened at a high level – we do not, for example, reiterate the rules
of plain English, or legible typography.
Conclusion
This case study has described an innovative approach to contract
simplication in response to the needs of some members of a particular
audience, Aboriginal small businesses in BC, Canada. Similar needs will
be felt wherever contracting parties come from different cultural and
professional backgrounds. And, as the creators of the New Engineering
Contract showed, simplied contracts also address a need felt in any
industry where the users of contractual documents include not only
procurement and sales professionals but also the managers and workers on
the job.
Contract simplication and visualization is sometimes discussed in the
abstract, with few examples and practical cases to illustrate what is actually
being discussed and proposed. The innovative document designs published
here, together with the design patterns that explain them, are intended to
move the debate forward and lead to further, more detailed research on the
topic.
This is by no means the rst instance of contract simplication, but rather it
continues a growing trend towards greater clarity as a priority. The project
used a multi-disciplinary approach that combined the best professional
practices of specialists in procurement, legal drafting, project management,
community relations, and information design. Importantly, it also consulted
users, to give them a voice in the creation of the new document set.
Cooperation through clarity: designing simplied contracts • 2016 21
References
Alexander C, Ishikawa S, Silverstein M, Jacobson M, Fiksdahl-King I and Angel S (1977) A
Pattern Language - Towns, Buildings, Construction. New York: Oxford University Press.
Barnes M, Abrahamson MW, Palmer HA and Barber JN (1986) Towards simpler contracts.
Proceedings of the Institution of Civil Engineers 80, pp. 818–821.
Barton D (2008) Using Measurements to Drive Organizational Value. Contracting Excellence,
November 2008, International Association for Contract and Commercial Management
IACCM. Available at: http://www2.iaccm.com/resources/?id=8030 (for members only)
(accessed 14 December 2015).
Broome J (2012) NEC 3 New Engineering Contract: A User’s Guide. London: ICE.
Clarity2010 Blog (no date) Available at: http://blog.clarity2010.com (accessed 5 April
2016).
Collin D (2011) Aboriginal Financial Literacy in Canada: issues and directions. Paper
prepared for the Task Force on Financial Literacy. http://open.canada.ca/vl/en/doc/
collections-2011704136x (accessed 5 April 2016).
Colquhoun G (2007) A Clearer Way to Deal. The Journal, January 2007, p. 45.
CommonTerms (no date) Related work. Available at: http://commonterms.org/Related.aspx
(accessed 5 April 2016).
Creative Commons (no date) About the licenses. Available at: https://creativecommons.org/
licenses (accessed 5 April 2016).
Cummins T (2016) Contract & Commercial Management 2016: the year in prospect.
Commitment Matters Blog, 5 January 2016. http://commitmentmatters.
com/2016/01/05/contract-commercial-management-2016-the-year-in-prospect/
(accessed on 5 April 2016)
Cutts M (2013) Oxford Guide to Plain English. 3rd Edition). Oxford: Oxford University Press.
Farkas D, Larson J and Naranjo S (2011) LabelPatterns.org: A comprehensive pattern library
for consumer-decision labels. 2011 IEEE International Professional Communication
Conference, 1–9.
George PN (2008) Aboriginal adult literacy: Nourishing their learning spirits. University of
Saskatchewan, Aboriginal Education Research Centre, Saskatoon, SK & First Nations and
Adult Higher Education Consortium, Calgary, AB. Accessed 5 April 2016 from http://
fneii.ca/NourishingSpirits_LitReview_en_1_.pdf
Gerding EF (2013) Contract as pattern language. Washington Law Review, 88, 1323–1356.
Haapio H (2013a) Next Generation Contracts: A Paradigm Shift. Helsinki: Lexpert.
Haapio H (2013b) Good Contracts: Bringing Design Thinking into Contract Design. In:
Proceedings of the 2013 IACCM Academic Forum for Integrating Law and Contract
Management: Proactive, Preventive and Strategic Approaches (ed. J Chittenden), Phoenix,
AZ, 8 October 2013, pp. 95–136 . Ridgeeld, CT: International Association for Contract
and Commercial Management.
Haapio H and Hagan M (2016) Design Patterns for Contracts. In E Schweighofer et al
(Eds), Proceedings of the 19th International Legal Informatics Symposium IRIS 2016 (pp.
381–388). Vienna.
Harwood C (2012) State of the Literacy and Essential Skills Field, Ottawa: Canadian Literacy
and Learning Network.
NEC (no date) History of NEC3 . Available at: https://www.neccontract.com/About-NEC/
History (accessed 5 April 2016).
Lannerö P (2013) Fighting the Biggest Lie on the Internet. Common terms beta proposal.
Metamatrix, Stockholm, 30 April. Available at: http://www.commonterms.net/common-
terms_beta_proposal.pdf (accessed 5 April 2016).
McInnis A (2001) The New Engineering Contract: a legal commentary. London: Thomas
Telford.
Cooperation through clarity: designing simplied contracts • 2016 22
Morrison J (2014) Business and society: dening the ‘social licence’, The Guardian, 29
September. Available at: http://www.theguardian.com/sustainable-business/2014/
sep/29/social-licence-operate-shell-bp-business-leaders (accessed 5 April 2016).
Passera S (2015) Make your contracts visual and user-centered. In: FIMECC UXUS nal report
1/2015 – User Experience and Usability in Complex Systems – UXUS. FIMECC Publications
Series No. 8, pp. 181–186. Available at: http://hightech.mecc.com/results/nal-report-
uxus-user-experience-and-usability-in-complex-systems (accessed 5 April 2016).
Passera S and Haapio H (2013) Transforming Contracts from Legal Rules to User-centered
Communication Tools: A Human-information Interaction Challenge. Communication
Design Quarterly 1(3): 38–45. Available at: http://sigdoc.acm.org/wp-content/
uploads/2012/09/CDQ-April-1-3-FINAL.pdf (accessed 5 April 2016).
Passera S, Pohjonen S, Koskelainen K and Anttila S (2013) User-friendly Contracting Tools
– A Visual Guide to Facilitate Public Procurement Contracting. In: Proceedings of the
2013 IACCM Academic Forum for Integrating Law and Contract Management: Proactive,
Preventive and Strategic Approaches (ed. J Chittenden), Phoenix, AZ, 8 October 2013,
pp. 74–94 . Ridgeeld, CT: International Association for Contract and Commercial
Management.
Patajoki U (2013) Towards a Successful Contractual Relationship. Public Service Procurement
from a Small Business Perspective. Master’s Thesis, Aalto University, School of Science,
Degree Programme in Information Networks. Available at: http://tuta.aalto./en/
midcom-serveattachmentguid-1e47559bc2ceb62755911e4a2f4dd39aba9b4fdb4fd/ulla_
patajoki_masters_thesis_nal.pdf (accessed 5 April 2016).
Roxenhall T and Ghauri P (2004). Use of the written contract in long-lasting business
relationships. Industrial Marketing Management, 33(3), 261–268.
Siedel G and Haapio H (2011) Proactive Law for Managers: A Hidden Source of Competitive
Advantage. Farnham: Gower.
Siegel A and Etzkorn I (2013) Simple. Conquering the Crisis of Complexity. New York &
Boston: Twelve.
Tidwell J (1999) Common ground: A pattern language for human-computer interface design.
http://www.mit.edu/~jtidwell/common_ground.html (accessed 5 March 2016).
Tidwell J (1999) Common ground: A pattern language for human-computer interface design.
http://www.mit.edu/~jtidwell/common_ground.html (accessed 5 March 2016).
Uff J (1991) Figaro on ICE – the ICE 6
Edition and the New Engineering Contract.
Construction Industry Law Letter.
UK Ofce of Fair Trading OFT (2011) Consumer Contracts – What you need to
know. OFT1318, March. Available at: http://webarchive.nationalarchives.gov.
uk/20140402142426/http://www.oft.gov.uk/shared_oft/market-studies/consumercon-
tracts/OFT1318_Consumer_Contracts_1.pdf (accessed 5 April 2016).
US Consumer Financial Protection Bureau (CFPB) (2011) CFPB Aims to Simplify Credit Card
Agreements. Agency Announces Plans to Pilot Test Prototype Agreement; Invites Public
to Weigh In. 7 December. Available at: http://www.consumernance.gov/pressrelease/
consumer-nancial-protection-bureau-aims-to-simplify-credit-card-agreements (accessed
5 April 2016).
Waller R (1991) Typography and discourse. In: Handbook of Reading Research, Vol. II (eds R
Barr, ML Kamil, PB Mosenthal and PD Pearson), pp. 341–380. New York: Longman.
Waller R, Delin J and Thomas M (2012) Towards a pattern language approach to document
description. Discours 10. Available at: http://discours.revues.org/8673 (accessed 5 April
2016).
Weatherley S (2005) Pathclearer: A More Commercial Approach to Drafting Commercial
Contracts. PLC Law Department Quarterly, October–December, pp. 39–46. Available at:
http://www.clarity-international.net/documents/Pathclearer%20article%20in%20PLC-3.
pdf (accessed 5 April 2016).
Cooperation through clarity: designing simplied contracts • 2016 23
Table 1. Some design patterns for contract design
Pattern name Challenge Typical solution Typical issues Example from this project
PATTERNS THAT SUPPORT STRATEGIC READING
Skimmable
headings
People need to skim read
to get a sense of what the
content covers, and to nd
answers to questions.
Prominent headings that
they can move quickly
between.
There need to be frequent
headings for this to work
– several to a page, and
perhaps even one per
paragraph.
Figure 5: All the Guides have
headings in the left-hand
column.
Section start
pages
The start of each
document sections needs
to be easily found. They
also need have internal
unity, so they can be
copied and distributed.
Start each section on
a new page, with a
prominent heading. Do
not worry about ‘wasting’
space at the end of the
previous page.
Section start pages can
have a special layout,
perhaps including notes or
a contact name for help.
Figure 9: most of the
transformed documents use
a new page for each section
start. Simple documents are
not necessarily shorter.
Alert icons Contracts are quite long
and calls to action (eg,
reporting requirements)
can be missed on a quick
read.
Wherever there is an
important action, include
an icon. It can be used to
draw attention on a rst
read, or as a search target
on a later review.
It can sometimes be
tempting to pepper a
text with icons, so be
consistent and reserve
them for important
events that form project
management stages.
Figure 11: we use a
document icon to represent
a required information to be
attached. It helps bidders
check they have submitted
everything needed.
Colour coding 1 It can be hard to navigate
a long or unfamiliar
document.
2 Users may need to
quickly identify a page or
section that is referred to
elsewhere.
1 Colour coding provides
an ambient cue that you
are still in the same section
– a colour change is a
quick alert that you have
moved on.
2 Colour provides a good
search target, similar to
icons.
You can’t rely on colour
alone to signal a dierence,
because the document
may be copied in black
and white. So use it along
with another cue such as
heading or icon.
Around 8% of males have
some degree of red-green
colour blindness.
Figures 4–6 use coloured
icons to link enclosures to
the covering letter.
PATTERNS THAT SUPPORT EXPLANATION
Timeline It is dicult to use words
alone for explanations
that involve sequences
of events perhaps
with dependencies
or alternative routes.
Sometimes it is unclear
whether two time periods
overlap or are sequential.
Use a timeline diagram
showing key events in
sequence, with number of
days/months/years/.
A time line can be
elaborated with branches
for alternative decisions or
loops for re-worked stages.
Figure 7: the Guide to
Invoicing uses timelines to
contrast a normal payment
process with a rejected
invoice.
Exemplars It may be dicult to
reliably describe a
requirement or rule which
is not commonplace or
intuitive.
Provide an example or
demonstration.
Examples can be taken too
literally by readers. Provide
commentary stressing
what is essential to follow,
and what is just illustrative.
Figure 8 shows one of
the exemplar invoices we
illustrate to show what
information to include.
Cooperation through clarity: designing simplied contracts • 2016 24
Pattern name Challenge Typical solution Typical issues Example from this project
Layered
explanations
There may be two
audiences for the same
content, or part of the
content cannot be
changed.
Use parallel columns to
juxtapose commentary or
plain English text alongside
the core content.
You may need to make it
clear that only one version
has legal status.
For reasons of space we
have not illustrated this, but
we developed experimental
formats with layered
explanations.
Hints Although an instruction
might seem clear, in
practice users make errors.
Provide hints that help
users. For example, when
asking for a password,
websites might hint ‘this is
in the email we sent you’.
This an important
relationship-building idea
that gives your document
a helpful and cooperative
tone.
Figure 9 oers a hint about
where to nd the PO
number.
PATTERNS THAT SUPPORT AN EFFECTIVE USER RESPONSE
Checklist Users want to comply with
your process but need to
check they have covered
everything.
Provide a checklist they
can use before sending in
their bid, invoice or other
submission.
Figure 9 includes a checklist
to help contractors submit
acceptable invoices.
Highlighted
response space
Users want to comply with
your process but need to
check they have lled in
correct information in a
form.
Highlight the places where
they need to respond,
using colour, bold boxes
or icons.
It can be dicult to
assess how much space
is needed, so users need
permission to go beyond
the allocated spaces is they
need to (eg, in margins or
on extra paper).
Figure 11 from an RFP
highlights response areas in
colour (or grey if printed out
in mono).
Distributed
declaration
Users sometimes sign
forms at the end, implying
they have read everything,
but they haven’t.
Distribute separate
declarations with
checkboxes or signatures,
indicating they have
considered individual
requirements.
This may only be needed if
the separate requirements
are critical or if experience
shows they have not been
understood.
Figure 10 shows a section-
level declaration.
PATTERNS THAT SUPPORT READER ENGAGEMENT
Topic icons Long documents can be
o-putting and not invite a
careful read
Provide graphics that break
up the text, and highlight
particular topics.
Use this technique
sparingly, with meaningful
graphics. Otherwise it can
look trivial or over simple.
Figure 7 uses icons to draw
attention to deadlines,
payment and a warning
about correct invoicing. It
makes the page look and act
like a user guide.
Background
information
Users may not know
why you are asking for
information, or may want
to do wider research about
the project.
Provide contextual
information about your
operation, in the same way
as you might if met face
to face.
This is an important part of
relationship building and
puts the bidder or supplier
more fully in the picture
as a participant in your
project.
Figure 5 gives general
background about the
project, and a map.
... • Compor a partir das variáveis forma, tamanho, valor, orientação posição, textura e cor (BERTIN, 2011), através dos recursos: enfatizar ou minimizar; comparar ou ordenar; agrupar ou classificar; selecionar ou omitir; optar pelo reconhecimento imediato ou tardio; apresentar de forma interessante; hierarquizar, ligar ou separar, igualar ou diferenciar etc. (MIJKSENAAR, 1997;BONSIEPE, 1999;WALLER et al., 2016). • Criar relações significativas entre objetos e espaços gráficos (ENGELHARDT, 2002). ...
... • Estabelecer prioridades entre as funções: descrição, narração, persuasão e exortação, instrução e provisão de informações, dar prazer ao leitor, desde que a provisão de informações e instrução seja o critérios prioritário (TWYMAN, 1985). • Definir prioridades entre os objetivos comunicativos da linguagem esquemática (narração, instrução, exploração, simulação) no contrato eletrônico, principalmente em oferecer instruções (RAJAMANICKAN, 2003;BARTON et al., 2013;WALLER et al., 2016;PASSERA, 2018). ...
... Por isso, a visualização de contratos visa expandir o uso de outras linguagens, objetivando a comunicação clara e efetiva, conforme a PD 3:PD 3 Uso das linguagens gráficas verbal, pictórica e esquemática de forma complementar • Identificar as informações principais e secundárias do contrato, hierarquicamente.Escrever textos curtos, concisos, objetivos e escaneáveis(SCHADE, 2018;LIMA, 2009). • Usar textos em primeira pessoa(WALLER et al., 2016). • Usar menus de navegação, cabeçalhos pesquisáveis, destaques tipográficos e listas com ...
Article
Full-text available
Resumo As relações comerciais assumiram novas caraterísticas com a Internet que possibilitaram o comércio virtual regido por contratos eletrônicos como mediadores dos direitos e obrigações entre usuários e empresas. As recomendações de isolamento social, devido à pandemia da COVID-19, têm impulsionado ainda mais o comércio eletrônico. Entretanto, as interfaces desses contratos, na generalidade dos casos, com textos longos, complexos e difíceis de usar, são confeccionadas sem uma compreensão das necessidades de comunicação das partes envolvidas e da forma como elas interagem e interpretam essas informações. Este artigo, inspirado na Design Science Research (pesquisa da ciência do projeto), busca os fundamentos do design de informação e de interação presentes na literatura, sintetizando e organizando Proposições de Design que possam constituir um artefato para apoiar soluções de problemas na compreensão dos contratos eletrônicos, tomando como caso um site de reservas de hospedagens. Palavras-chave: Visualização de Contratos, Contratos Visuais, Design de Informação, Design de Interação. Abstract Comercial relationships took on new characteristics since the rise of the internet, which enabled virtual commerce through electronic contracts as mediators of rights and obligations between users and companies. The recommendations for social isolation due Covid-19's pandemic increased the e-commerce. However, the interfaces of these contracts, in most cases, with long pages of texts, complex and difficult to use, are made without an understanding of the communication needs of the parties involved and the way they interact and interpret that information. This article searches fundamentals of information and interaction design and, inspired in the Design Science Research, synthesizes and organizes Design Propositions from literature that can constitute an artifact to solve problems that occur in the understanding of electronic contracts, taking as case a hotel booking sites.
... Asian Social Science Vol. 17, No. 11 2021 easing into the culture of co-operating and providing solutions to common communication problems (Waller et al., 2016). This has long been recommended by Yousuf et al. (2008), who asserted that more effort needs to be focused on communication and organization in team meetings to ensure individuals are aware of their roles and responsibilities and improve their commitment towards achieving expected goals. ...
... According to Riz, the positive impact of well-managed communication did not only create a meaningful co-design experience, but more importantly, led to the success of the AR mobile application"s development. This aligns with Waller et al."s (2016) assertion that the clear understanding of roles, responsibilities, and information design is a key success factor in shaping a culture of cooperation and providing solutions to common communication problems. ...
Article
Full-text available
With the rapid development of educational tools, co-design has been on the rise. Co-design is instrumental in successful product development as it merges two key perspectives, namely consumers’ insights and professionals’ knowledge. The roles of users, designers, and developers are now blurred as educators have begun to construct their own tools for teaching based on problems and ideas conceived in their classrooms, thereby assuming roles as designers and to some extent, as developers. A more common practice in recent days is educators’ co-designing of tools with system developers to achieve their targeted goal. This study attempted to explore the process of co-designing an augmented reality (AR) mobile application and the role of a system developer in mediating the design process with non-designers, namely academic members of the Faculty of Medicine and Health Sciences, Universiti Putra Malaysia. This study further aimed to delineate the nuances of the AR mobile application co-design experience from the perspective of the system developer. Semi-structured interviews, observations, and document analyses were conducted to examine the detailed process of co-designing and developing the AR application as well as to understand the developer’s interaction with the consumers. The main findings of this study suggest that the waterfall model of the Software Development Life Cycle was in use during the co-design process. This cycle generally involves five stages, namely (i) planning, (ii) analysis, (iii) design, (iv) implementation, and (v) maintenance, which are iterative in nature. The designer’s role in mediating the co-design process encompassed balancing their knowledge and experience with the needs of consumers that do not necessarily match the designer’s expectations. This was achieved through (i) precise communication, (ii) commitment to the delivery and quality of the AR mobile application, as well as to building cohesive working relationships, and (iii) motivation to work with co-designers during the development process. The findings shed light on the value of co-design and the complex role of designers in mediating the design process with non-designers, which when accounted for, can lead to more feasible project development.
... Projects we have been involved with (e.g., Waller et al. 2016;Passera et al. 2016;Doyle and Passera 2021) allow traditional legal drafting to sit alongside clearly presented information about operational matters aimed at business readers. Operational clauses might be about ordering, payment and delivery, while legal matters include such things as applicable law and dispute resolution, along with wording dealing with exclusion or limitation of liability. ...
Chapter
This paper addresses a debate that frequently arises when contract simplification is discussed. For business users, a clear contract is one that helps them understand the deal, implement its terms and encourages a productive business relationship. Legal teams, on the other hand, often worry about their responsibility to protect their client against excessive risk and potential litigation. For them, a clear document is unambiguous and legally watertight, resulting in complex documents that can be hard for non-lawyers to use. In this paper we discuss a layered approach that can reconcile competing definitions of clarity, functionality and user needs, and we speculate about the role of information design and emerging technologies in the development of human-centred layers to traditional contract wording.
... Addressing certain aspects such as regulations and unique protocols, time and budget constraints, complexity of the project, and the owner's expertise will help to determine the most suitable project delivery method. Critical factor 6, "irregular documentation and tracking of reworks and change orders", which results from triggering factor 8, can be addressed with mitigation strategies such as (a) encouraging collaboration between the contractor and the design team [110], (b) enhancing interdisciplinary coordination during design [110], (c) ensuring clarity in contract documents [111], and (d) applying project documentation and management software tools such as Procore [112]. ...
Article
Full-text available
Construction projects are complex as various project entities involve and collaborate with each other. This complexity not only causes issues such as project delays but also makes it difficult to manage projects. Previous research has often used productivity and efficiency interchangeably, but they are not the same. The field of construction efficiency has not been fully studied to understand its entire potential in a practical context. Toward this end, this research aims to support efficient construction project management by exploring the inefficiency factors as well as identifying the perception gaps between different occupations and the interrelationships between the factors. Twenty inefficiency factors were identified through a comprehensive literature review; then, the importance of the factors and the perception gaps among stakeholders were studied by analyzing online survey data using Rii (relative importance index), Welch’s t-test, and factor analysis. In addition, interviews with field engineers and managers allowed us to explore cause-and-effect relationships among the factors and determine triggering and critical factors based on their chain reactions. This research found that a major perception gap among project stakeholders was in the factor of unrealistic scheduled dates. The research contributes to project risk management and strategic planning for construction project efficiency.
... This is being built up remarkably quickly through the efforts of key pioneers, conferences, and pathfinder projects. Organisations are naturally conservative and risk averse, and legal departments especially so, but each innovative project that sees the light of day 43 For examples of pattern libraries for contract design see Waller et al (2016) and the IACCM Contract Design Pattern Library <https://contract-design.iaccm.com> accessed 29 July 2020. ...
Chapter
Full-text available
Contracts with a high proportion of boilerplate or small print are not designed with readers in mind, and so few people read them. We need to go beyond surface-level optimisation (plain language and legible type) to develop a transformational approach rooted in an understanding of user needs and behaviours. The roles of strategic reading, literacy, context, and inference are reviewed to explain why users trip over unexpected contract terms. Viewing contract-related problems as‘cognitive accidents’ changes the perspective from legal accuracy to duty of care. Processes are key, with multi-specialist teams, user-centred methods, and risk assessment combining to arrive at new design patterns, leading in time to a new genre of human-readable contract.
... According to Chall (1958) and Klare (1963) in Kouamé (2010), FRES is the most tested and the most reliable formula compared to the other traditional readability formulas. However, FRES is not perfect as it includes limited variables in their calculations such as sentence length, word difficulty and word syllables (Bailin and Grafstein, 2016, Selzer, 1981, Schriver, 2000, Lang, 2004, Waller et al., 2016. Generally, traditional readability formulas are criticised for their inaccurate results, either by overestimating the level of reading difficulty (Klare, 1976) or oversimplifying the reading process (Selzer, 1981). ...
Conference Paper
Full-text available
Standard forms of contracts are usually written in the traditional legal drafting style. They are difficult to read and understand by construction practitioners. This study aims to objectively assess the impact of contract drafting styles on the readability level of the revised and clarity-accredited standard form of consultancy contract in New Zealand and compare it with its predecessor version. Clauses from both contract versions were evaluated using a traditional readability formula-Flesch Reading Ease Score (FRES). Results revealed that although the revised version is accredited as clearly written by the Plain Language Commission, only 11 clauses in the revised version are predicted to be accessible to readers ages 14 years old and younger. The results showed that clauses in the revised version are readable at 'difficult' reading grade level, while clauses in the predecessor version are readable at 'very difficult' reading level. But the revised version is easier to read than its predecessor, even though the successor comprises more clauses, words and sentences than its predecessor. Our results provide a further explanation about contract readability from an objective readability prediction perspective with the use of readability formula.
... This is being built up remarkably quickly through the efforts of key pioneers, conferences, and pathfinder projects. Organisations are naturally conservative and risk averse, and legal departments especially so, but each innovative project that sees the light of day 43 For examples of pattern libraries for contract design see Waller et al (2016) and the IACCM Contract Design Pattern Library <https://contract-design.iaccm.com> accessed 29 July 2020. ...
Preprint
Full-text available
This paper addresses the issue of incomprehensible consumer contracts – the small print. I argue that when people suffer loss because they did not understand a contract condition, we should view it as a cognitive accident. This changes our perspective to one of duty of care, and risk management. I argue that processes are as important as templates or models, and I speculate about what an emerging genre of human-readable contract might look like.
Article
Research shows that strategic dispute resolution and early intervention reduce direct and indirect costs of conflicts. Minimal costs are involved in preventing and de-escalating disputes, compared with the costs of arbitration and litigation, for example. In this context, the traditional view of contracts as legal documents or reactive enforcement mechanisms is too narrow. Contracts can be used proactively, ex ante, too, enhancing the parties’ chances of success and preventing unnecessary problems. In Europe, this is part of what is known as Proactive Law; in the US, Preventive Law. On both sides of the Atlantic, it can also be framed as practicing proactive contracting or proactive contract design. Well-designed contracting processes and documents can prevent misaligned expectations and disappointments so that unnecessary disputes can be avoided. Early intervention methods of dispute resolution, such as mediation, can be used to de-escalate the dispute and promote cooperation. Along with other crucial elements, contracts can provide pre-agreed procedures and resolution mechanisms if changes, delays, or disturbances occur or a conflict situation arises. Building on our previous work on civil and commercial mediation and a managerial-legal view on contracts and their design we illustrate, with examples, how proactive contract design, combined with early intervention procedures and monitoring systems as well as post-award management processes can be used to better deal with the commercial, legal and human elements of a dispute. With a focus on commercial business-to-business contracts and related conflicts we explore how design methods can be used to address the root causes of legal disputes and to operationalize an effective dispute prevention and resolution system.
Article
Full-text available
Pattern libraries, originating in architecture, are a common way to share design solutions in interaction design and software engineering. Our aim in this paper is to consider patterns as a way of describing commonly-occurring document design solutions to particular problems, from two points of view. First, we are interested in their use as exemplars for designers to follow, and second, we suggest them as a means of understanding linguistic and graphical data for their organization into corpora that will facilitate descriptive work. We discuss the use of patterns across a range of disciplines before suggesting the need to place patterns in the context of genres, with each potentially belonging to a “home genre” in which it originates and to which it makes an implicit intertextual reference intended to produce a particular reader response in the form of a reading strategy or interpretative stance. We consider some conceptual and technical issues involved in the descriptive study of patterns in naturallyoccurring documents, including the challenges involved in building a document corpus.
Conference Paper
Full-text available
Consumer-decision labels are relatively small panels of information, placed where consumers make decisions, that help those consumers make informed choices and, at times, motivate desired behaviors. They provide information about environmental impact/sustainability, nutrition, health, safety, the quality and suitability of consumer goods, and other domains. Design patterns are expanded guidelines that follow a problem-solution structure, provide more context than standard guidelines, and are supported when possible by citations to relevant research and professional literature. Pattern libraries are sets of coordinated patterns that strive to comprehensively support the design process in a particular domain. Pattern libraries have proven successful and are now used in such domains as urban planning, object-oriented programming, software user interface design, and web design. LabelPatterns.org is a newly launched website currently hosting over 75 design patterns that support the design of consumer-decision labels. It also offers other kinds of information about these labels and related messaging. The patterns and the website were begun as student projects in the Department of Human Centered Design & Engineering at the University of Washington, USA. It is now being managed and expanded by a volunteer project team.
Conference Paper
Law as a profession has much in common with architecture and engineering. In contexts as diverse as business transactions, legislative work, and mediation, lawyers have been called legal architects or engineers. We propose seeing contracts as things or artefacts – something to be designed – and borrowing from architects and engineers the idea of design patterns: solutions to recurring problems. Our examples illustrate how design patterns may relate to contract forms, templates, or clauses, but also go way beyond. The paper concludes with an agenda for an open design pattern library for contracts, seeking to help share examples and best practices that enable better contract design and communication. Full text available at: http://ssrn.com/abstract=2747280
Article
In this paper, we illustrate how merging contract design with information design, especially visualization, can help to transform contracts (and people's perceptions about contracts) from legal rules to communication tools. We argue that improved human-contract interaction can maximize the value of commercial relationships, minimize risk, and prevent workplace frustration. Viewing contracts as boundary objects and changing their design to overcome the current challenges offer unexplored opportunities for both research and practice.
Article
While contracts are signed in most business dealings, they are seldom used. These contracts are drawn up for different purposes: as a communication tool, to reduce uncertainty, or simply because it is customary. This study investigates how contracts are used in long-lasting business relationships and what factors influence the use of contracts. A number of studies claim that the negotiation process and the relationships developed during that process influence the subsequent use of contracts. In many cases, parties conduct business without contracts as they develop trust-based relationships. A conceptual framework is developed, which is then used to analyze three in-depth case studies. Findings show that the contract itself, rather than the negotiation process, has the greatest influence on how the contract is used.