Mapping your contracting process – part one

By Jason McQuillen and Martin Brenig-Jones

Why map process flow?

Not many lawyers would consider themselves masters of process. When lawyers talk about their work, they typically focus on ‘high-value’ activities such as advocacy and counselling. But the truth is process is a massive part of what lawyers actually do on a day-to-day basis.

Process in the practice of law, stated simply, comprises collating information, packaging it and delivering it to the client as a legal product. It’s obvious that good process is critical to the effective practice of law – it just seems that lawyers don’t think about it so much.

Jason McQuillen

Jason McQuillen

Historically, lawyers have been accused of resisting change and being slow to adopt initiatives and ideas from outside the profession. Efficiency and standardisation is looked upon with suspicion, with a perception that it is some kind of trade-off between efficiency and quality, and that the law is somehow ‘too complicated’ to be standardised. Hardly fertile ground for introducing Lean Six Sigma, one might think.

A deeper consideration of the principles and motivations behind Lean Six Sigma demonstrate that it has a natural synergy with law and, applied with thought, can deliver significant benefits to clients.

The relevance of Lean Six Sigma and process mapping

Lean Six Sigma is the coming together of two methods with a combined focus on:

  • Understanding the customer’s perception of value;
  • Improving process flow to reduce defects and waste; and
  • Using data to fuel continuous improvement in a systematic way.

It can be said that ‘Lean’ is about identifying and removing unnecessary process steps and reducing delays and ‘Six Sigma’ is about consistently getting products and services right for the customer. It provides a toolkit for analysing and improving any process, whether that be production of automobiles, financial transactions, customer service centres, sales and marketing campaigns, HR processes such as recruitment – or production and review of a contract.

Process mapping is one tool for understanding how work actually gets done. It provides a visual representation of every step, task, input and resource used to complete a business process. Production and review of a contract is just a process with a beginning (taking instructions and understanding objectives), a middle (exchange of contract drafts) and an end (finalisation and sign-off).

Benefits of process mapping

Process mapping leads to better resource management through:

  • Identifying duplication and wasted effort;
  • Providing opportunities for disaggregation of tasks to ensure that the right level of legal resource is used at each stage; and
  • Better understanding and clarifying handoffs and internal/external relationships and interfaces.
Martin Brenig-Jones

Martin Brenig-Jones

Law firms are sometimes scorned for cracking an egg with a sledgehammer. Clients are often left wondering whether it is really necessary for the highly paid (and expensive) partner to complete a given task, or whether a more junior lawyer could do it just as well. Pursuing that line of argument further, is a lawyer actually needed? In fact, does the task even need to be done? Process mapping flushes out this type of inefficiency and over-resourcing.

The opportunities for law firms to gain efficiencies through a more transparent process are clear. The elephant in the room, however, is that sometimes law firms are incentivised to duplicate effort (eg, have multiple lawyers attend a meeting) or aggregate tasks (have the lawyers proof-read) as they charge their clients by the hour.

In addition to better resource management, process improvements in contracting also leads to more consistent outputs, taking the ‘art’ out of contract reviews. This in turn reduces risks as process becomes standardised with clarity of steps.

William Edwards Deming, the father of quality evolution, placed enormous emphasis on the importance of process. He said: “Eighty-five percent of the reasons for failure to meet customer expectations are related to deficiencies in the systems and process… rather than the employee. The role of management is to change the process rather than badgering individuals to do better.”

Finally, process mapping assists in identifying where the value lies. Typically only 10-15% of the steps in a process add value, and usually these steps represent as little as 1% of the total process time (taking into account delays and the time where the product or service is static).

Lean Six Sigma provides a definition of a value-added step:

  • The customer would be interested and care about the step; AND
  • The step must change the product or service in some way, or be an ‘essential pre-requisite’ (more generously, ‘does it move the matter forward?’); AND
  • The step must be actioned right first time and is not being carried out as a result of an earlier failure.

This is an interesting test for lawyers – how many steps in the typical contract drafting and review process add value according to this definition?

When to process map

Process mapping will challenge the status quo, and ‘that’s the way we’ve always done it’. When done well, it will illustrate new and innovative ways of working. It is ideal for long-term relationships.

When lawyers (whether internal or external) map with clients, it allows them to work more closely and enter into true collaboration. The client’s steps and the lawyer’s steps can be mapped together so that there are clearly defined roles and hand offs.

According to Denning: “The result of long-term relationships is better and better quality, and lower and lower costs.”

If you add faster turnaround to that, you get closer to the holy trinity of products and services delivered at the right quality, time and price. For in-house departments, mapping facilitates onboarding of new staff more quickly as they can see and understand how work gets done. For law firms, it also assist in pricing matters more accurately due to the certainty it provides.

  • In our next article, we will provide guidance and tips on how to map the contracting process.

Jason McQuillen is head of managed legal services at Radiant Law and a commercial law specialist, and Martin Brenig-Jones is a director at Catalyst Consulting, an expert in Lean Six Sigma, and co-author of Lean Six Sigma for Dummies

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