For 25 years now, one of my side-lines has been to be involved as an expert witness, arbitrator, broker, adjudicator in disputes between arts and entertainment organisations and software suppliers of ticketing systems and similar marketing and CRM tools, web developers and even sometimes infra-structure providers. Who would have thought that things like electricity or computer cabling could be so disruptive? Who would have thought that such large sums could turn on who said what, when, who meant what, when? I won’t be quoting any names here.  And to be fair, some system supplier’s ownership and not-for-profit model such as Tessitura put them into a different situation.

working relationships are breaking down with a different perspective from those on the users side

The challenge, however, has always been that the people on the supply side come at situations where working relationships are breaking down with a different perspective from those on the users side, particularly it seems in not-for-profit organisations. I have sympathy with the users, because the marketing messages of suppliers will often have talked about working in “partnership” with their users, emphasising their commitment to joint success, their friendliness, and the diligence of their support, promising to go “the extra mile” to achieve customer satisfaction. Well they would wouldn’t they?

Some of the disputes I been involved in have been exacerbated by that simple disconnection between the offer and the promises of the marketing and sales team, and what is then delivered by the implementation team. One major ticketing system supplier seemed always to start their implementation by forgetting everything ever said during the sales process, and with their technicians and support staff unable to complete tasks demonstrated by their sales technician. You can imagine it was a confidence deflator every time.

That said, most of the disputes actually come down to communications and to expectations. It is easy to blame communications. One arts organisation had explained a major change to their website to their web developers in a long telephone call; unbeknownst to them, they were using jargon which had multiple interpretations, of which they only knew one, but their developer only understood a different one to them, and expensively did the work to deliver that. When he presented the results he was astonished to find they were disappointed, and blamed him and his team. Eventually, both parties agreed there was no evidence of any precision in what was specified or any check for understanding, and no arrangement to review iterations as the development went along.

most of the disputes actually come down to communications and to expectations.

So clearly getting communications right is crucial. Of course dialogue is helpful, and a record of what has been said and agreed is essential, but those checks for understanding are the vital ingredient. One of the biggest disputes financially I was involved in, as an expert witness, turned effectively on what one side understood by what the other said, and the unstated implications.

In another example, one supplier was asked if their system “could do X” and their response was “yes” – a frequent response from them to queries; but when clarification was sought, they explained ”if you specify what you want, we will pass it to our development team, they will cost it, and, if you approve, they will develop it, depending upon our other development commitments for the delivery date”. Their “yes” meant that their system had the capability to have the required functionality added in future, and nothing more.

But as indicated in that previous example, communications involve time. It is not being unfair to say arts and entertainment organisations often ask for something when they are up against a deadline or have suddenly realised a gap in their available functionality, and they want an instant answer and an immediate solution (sometimes for something they have already started to announce to their customers). But suppliers need time, perhaps because the person being talked to at the supplier doesn’t have the authority to make a decision, but essentially because it has to be checked out with the development team and possibly with the people who make decisions about priorities for them. This can mean that the simple dialogue wanted runs out over a week or more, coming back with a much more complicated, and not necessarily helpful, answer.

communications involve time

That leads us to expectations. For all their promises, most suppliers are commercial businesses intending to be profitable (you’d be surprised how many are not) and that will determine how far they can go and in particular, what things cost. During procurement processes, I can understand the disappointment of subsidised arts organisations that find they cannot afford the tender from their preferred system supplier, but I cannot understand when they think the supplier should do them a favour and charge them less (and which of course they won’t tell any other venue about)!

Having worked in business development for a supplier and knowing the way costs are calculated and the internal accounting for charges, I know it is not worth querying costs where the time allocation and day rates are clearly quoted. I know the day rates vary, sometimes ludicrously, between suppliers but the only solution is to choose a supplier with lower rates if you can’t afford the ones with higher rates. The rates might well be determined by where the developers are based – England? US? Slovenia? India? Argentina? – and their experience and competence; there are still developers who make their mistakes on their users. The rates will also be affected by the overhead of the supplier’s organisation.

Yes sometimes suppliers will re-negotiate terms, especially around license fees and similar, but I only see this where the supplier wants to keep the client, there is a degree of mutual respect, and certainly no abuse being aired. Expectations of civilised behaviour are to the fore.

situations need more like marriage guidance than dispute resolution

But expectations can lead us into situations that seem to need more like marriage guidance than dispute resolution. I have heard ”our supplier just doesn’t understand us” and “if only they would change their behaviour and their attitude to us, everything would be alright”. Clearly there is a wide range of expectations you can have, but it is important to understand where the supplier is coming from, how they make their decisions, and, fundamentally, what drives their business. I don’t like to say it, but trying to remove emotional tensions from what are practical business issues is the best way to make progress.   On one occasion the venue produced multiple sides of A4 in small print with detailed chapter and verse of what had been going wrong with their supplier’s staff, tape recordings of some of the conversations, and a desire to be proved nit-pickingly correct on each item. They could not understand when the supplier queried their behaviour and attitude, questioning why the obvious issues had not been raised at the beginning, as they unfolded.

It can often seem that a breakdown in practical relations happened months earlier and that both sides continued, with emotional tensions increasing, when both should’ve identified the issues and required resolution of them when the issues first emerged. Hindsight is a wonderful thing.

After a breakdown, in my experience suppliers always want to understand what to do better in the future, often by talking about how they can make their working partnership with arts organisations better. My answer always lies in better dialogue, more account management, closer liaison on a formal basis with those responsible in a venue. And I find myself saying to the arts organisation that they are dealing with a specialist supplier and their staff need to have the skills and competencies to have the dialogue with that supplier on the right terms.

Suppliers’ staff will make mistakes and may not be as efficient and diligent as we want, but they are human beings who work for someone else, from whom we are taking a ‘mission-critical’ service.

Suppliers’ staff are human beings who work for someone else

Some arts organisations seem to think it will concentrate the minds wonderfully of their suppliers if they withhold payments for invoices and dispute payments. Now I have known system suppliers take many months to notice this – their “accounts department” not being connected to account management in support. But unfortunately many arts organisations are of the smaller end of the income flows in the larger international system suppliers and it is unlikely to impact on their behaviour and attitudes. So that is not the way to get attention. Once again, to get attention, it is about dialogue and effective communication with the right people at the right level.

Some arts organisations seem to think that legal action or threats of it will also concentrate the minds wonderfully of their suppliers; unfortunately suppliers seem to be very good at having lawyers who will tortuously consume time and money while not achieving resolution. It is depressing to be called in when situations have reached that stage.

suppliers seem to be very good at having lawyers who will tortuously consume time and money

My basic advice is always that arts and entertainment organisations need to decide what they want – are they willing to end their contract with their supplier and seek a new one? Colleagues Ron Evans in the US and Andrew Thomas in the UK point out that is what they often find – it has already gone too far, breakdown has already happened, confidence has already been lost, and the arts and entertainment organisation is going to start again with a new supplier, hopefully trying not to repeat the traits over the relationship with the previous one.

But often what arts and entertainment organisations want is to recover from the bad situation and the dispute. To the disappointment of many, that means leaving behind the issues of the past and concentrating on what is going to happen in the future. I use the expression ”reset” to describe as if starting at the beginning again. It is most important to define what will be the behaviours in the future, how communications will be managed in the future, and exactly who will be responsible for what, If there is to be a real chance of success. Sometimes that means that key individuals involved in the dispute have to step aside – they are carrying too much baggage from the past to make the future work without looking back. Sometimes that means people are involved who have not in the past been directly engaged in these matters, fresh heads, not coloured by the detail of the past and the nitty-gritty of previous problems, but crucially simply empowered to take things forward.

Oh, and partnerships are like marriages, where give-and-take is involved, lots of listening, being careful to say what you mean, and mistakes are forgiven, and collaboration is learned. It may be that some suppliers and some arts and entertainment organisations are never going to find a comfortable way to be working in partnership, but it would be good if they could find a comfortable way to not work at loggerheads.

Roger Tomlinson

August 2016