APPENDIX 5

CONSULTING AND INTELLECTUAL PROPERTY

Intellectual property refers to creations of the mind: inventions, literary and artistic works, symbols, names, images and designs used in commerce.1 The term “intellectual property” is used essentially to indicate those industrial, scientific, artistic and other creations that can be legally protected. As a rule, ideas themselves cannot be protected, but their description or formal documentation can be. Various legal instruments are available for the protection of intellectual property, including copyright, industrial designs, trademarks and patents. In certain cases, several types of protection are available for a particular creation.

Copyright protection arises automatically from the moment of creation of the copyright work. Protection under patents, designs and trademarks, on the other hand, is subject to registration. The registration of a patent may take several years as patents are granted only after lengthy investigations. The owner of intellectual property may generally grant a licence permitting a third party to use intellectual property on agreed terms. In return, the licensee may agree to pay a lump sum or to make royalty payments. Protection is usually awarded on a territorial basis. Therefore, a firm that wishes to obtain patent or trademark protection in several countries will, as a rule, need to apply for protection in each country. However, certain international conventions, such as the 1989 Madrid Protocol relating to the international registration of trademarks, provide for a single international registration, although protection will be granted only in the countries designated by the applicant under the conditions set forth by the national laws of these countries.2 The cost of protecting intellectual property internationally can be substantial. For example, one company has recently spent some US$10.6 million to extend its trademark protection from North America and Western Europe to the rest of the world.3

Until recently, most management and business consultants had only vague notions of intellectual property issues and paid marginal attention to them. At best they tried to avoid infringing copyright when using publications and training material authored by others. Consulting contracts often included copyright-related and similar provisions that did not conform to legislation. Consultants involved in

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research and development, product design, technology transfer and marketing issues were of course aware of intellectual property, but they tended to refer such matters to specialized lawyers.

During the 1990s, the attitudes to protection and utilization of intellectual property changed dramatically in most of the world’s leading businesses, in particular in the IT, e-business and telecommunications sectors.4 Intellectual property started being viewed and used as a strategic business tool, to generate income, thanks to active patent-licensing policies, protect core technologies and business methods, increase the market value of companies by assigning the correct value to their intellectual property, and develop strong patent portfolios in negotiating cross-licensing agreements with important business partners and even competitors.5 Thus, IBM managed to increase its annual income from intellectual property from US$30 million in 1990 to US$1.54 billion in 2001. Microsoft increased its patent portfolio from 5 in 1990 to some 1350 issued patents in 2000. Intel is known to have concluded a number of advantageous cross-licensing agreements since inventions of new semiconductor technologies are impossible without acquiring dozens of licences to use patented technologies. Dell secured 42 issued and pending patents on its business model. With progressing commodification of consulting services (see Chapters 1 and 2), many consultants have found it useful to secure legal protection of their own products. All these developments coincide with the advent of the knowledge-based economy, where new knowledge needs to be not only created, disseminated, shared and sold, but also legally protected. Intellectual property management and economics have become major elements and tools of knowledge management and corporate strategy.

Thus, in a relatively short time, intellectual property has become a burning issue for consultants. In a nutshell, consulting firms may face intellectual property issues in the following principal contexts:

●in advising clients on business and marketing strategies, activities and projects involving intellectual property;

●in creating and applying knowledge that can and ought to be legally protected;

●in creating new knowledge jointly with clients and subsequently jointly managing and exploiting this knowledge;

●in using legally protected knowledge created by others and in transferring this knowledge to clients.

This appendix aims to outline briefly the key current issues in intellectual property protection and management, to facilitate their general understanding and correct appreciation by consultants. These issues may concern the consulting firm itself, its client company, or both. This appendix addresses only the main forms of protection of intellectual property rights. It does not deal with areas of specialized interest such as, for example, the protection of databases or plant breeders’ rights. In addition, it does not specifically deal with the protection that may be afforded by law against unfair competition, namely dishonest or fraudulent practices in trade or commerce that are susceptible of injuring competitors or customers. However, unfair competition law may be the only form of protection available against the

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misappropriation of intellectual property where protection may not be claimed under specific intellectual property rights.

For handling specific issues of intellectual property, it may be necessary to turn to specialist lawyers and technicians, who often specialize in only one field such as copyright, patents, trademarks or Internet-related issues (which are particularly complex).

Trade secrets

Information that is not known to the trade, and that gives the consultant or his or her client a competitive edge, is generally known as a trade secret. Trade secrets may include customer lists, business methods, manufacturing processes, industry data and any other information with economic value. The protection afforded by law to trade secrets is often the only type of protection available. Trade secrets are protected against further disclosure by persons to whom the information was disclosed in confidence as well as against misappropriation by third parties. Trade secrets are not subject to any form of registration. However, they enjoy protection only to the extent that adequate measures are taken to keep the information confidential. The protection ends once the information becomes publicly available. In addition, there is no protection against someone discovering the information through independent means.

It is essential for businesses to develop and implement adequate measures to keep trade secrets confidential. This concerns both the clients’ and the consultant’s own trade secrets, which often are not explicitly discussed or referred to in contracts and when starting assignments. Talkative consultants may then unintentionally reveal confidential information to their social contacts or other clients. When disclosing a trade secret to a client or another consultant (e.g. a subcontractor), the consultant should obtain an express undertaking to keep the information confidential (see also contract terms in Appendix 4).

A frequent and often strategically important choice faced by clients and consultants is: Shall we aim to keep a new method or technique secret (limited legal protection, but no need to reveal the secret) or shall we secure a patent (strongest protection, but precise description of the method will become publicly available, the procedure will be long and costly, and it may be easy to copy our method)? Are we fast enough in developing our technologies and business methods to be always ahead of competitors, to be sure that they will always be late in copying us?

Copyright6

The purpose of copyright is to prevent others from taking unfair advantage of a person’s creative efforts. Copyright can usually subsist in any production in a literary, scientific or artistic domain, whatever may be the mode or form of its expression. All of these productions can usually be protected only if they are the author’s own intellectual creations. In addition, copyright generally protects expression rather than ideas. Examples of copyright works that may be relevant to

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consultants include computer programs, sound recordings, videos, books, manuals, training course materials, and other writings such as proposals, technical reports and other materials produced by the consultant.

Copyright gives the author of the work the exclusive right to reproduce, adapt, translate, distribute and perform his or her work. However, the law permits certain acts that would otherwise infringe copyright in order to provide a fair balance between the rights of the copyright owner and public interest. These exceptions are usually permitted in certain special cases that do not conflict with normal exploitation of the work and do not unreasonably prejudice the copyright owner’s legitimate interests. Commercial use of a work is usually not a permitted act.

Consultants frequently incorporate portions of sound recordings, videos, photographs, written materials and other works protected by copyright into their own presentations and materials. As regards publications, the use of limited passages from the publication of another author is usually authorized under certain conditions so long as the consultant gives credit by clearly identifying the publication and its author. If the use of another author’s publication exceeds the bounds of what is permitted, the consultant must, in addition to giving credit, obtain the copyright-holder’s permission (usually this will be the author or the publisher). Such permission must always be secured to use other types of works such as sound recordings, photographs, cartoons, animations and videos. The permission may usually be obtained from the copyright-holder or from a collecting society entrusted with the administration of copyrights and collection of fees on behalf of authors.7 The permission is sometimes subject to the payment of a lump sum or royalties. As noted above, copyright protects expression rather than ideas. Thus, it is usually lawful to use (unprotected) ideas if the presentation is changed. However, while it may be legal, it is unethical to use someone else’s unprotected ideas without giving credit (unless independently arrived at).

A particular issue is raised by works created by employees or by consultants for clients. The latter are usually known as works-for-hire. In certain legal systems, copyright in a work created by an employee is owned or controlled to a large extent by the employer if the work was created by the employee in the course of his or her employment. As regards works-for-hire, the client will usually be permitted to use the work only for the purposes resulting from the agreement between the consultant and the client, unless agreed otherwise by the parties (see also contract terms in Appendix 4).

In most countries, copyright protection generally exists from the moment of creation of the work. The term of protection of copyright varies depending on the country and on the type of copyright work, but will generally not be less than the life of the author plus 25, 50 or even 70 years after his or her death. Copyright protection is generally free of charge.

The Bern Copyright Convention administered by the World Intellectual Property Organization, and the Universal Copyright Convention lay down minimum standards for protection and provide for reciprocity of protection between the countries that have ratified the conventions. Both conventions have a significant number of members. While the Bern Copyright Convention provides that protection

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of copyright shall not be subject to any formality in the contracting states, the Universal Copyright Convention permits contracting states to require compliance with formalities, including registration and payment of fees. As a prerequisite to obtaining protection in a country with formalities, works must bear the copyright symbol © accompanied by the name of the copyright owner and the year of first publication placed in a visible location on the material.8 In any event, it is advisable for the consultant to place such a notice on his or her materials since it reminds third parties that the work is protected and informs them of the owner of the copyright.

Registered industrial designs

The law of registered designs protects drawings and shapes that can be used to produce an article industrially. An industrial design is the ornamental or aesthetic aspect of an article. This implies that it must appeal to the eye. The law does not protect any technical features of the article to which the design is applied. A design may usually be protected only if it has not been previously published or registered. The protection of designs is subject to registration9 and is awarded on a territorial basis.

Trademarks

The main function of trademarks is to identify the goods or services of an enterprise and to distinguish them from the goods or services of others. The goodwill associated with a trademark can be very important. Any sign that has a distinctive character and is not deceptive can usually be registered as a trademark.10 Signs that are devoid of any distinctive character because they are too simple, or that contain a direct reference to a product or service, usually may not constitute trademarks. In addition, if there is a likelihood of confusion with an earlier trademark registered with respect to identical or similar goods or services, the trademark will not be registrable. Examples of signs that can constitute trademarks include words, letters, numbers, graphical representations, three-dimensional marks, and combinations thereof.

Protection must be applied for, and is subject to the payment of registration and renewal fees, though unregistered signs may sometimes benefit from limited protection under trademark or unfair competition legislation.11 A trademark can be registered with respect to specific classes of goods and services.12 The owner of a trademark has the exclusive right to use the trademark in relation to the classes of goods or services for which it is registered. Protection may be jeopardized if the trademark is not used or asserted against infringers. Generally, the trademark is infringed if an identical or similar sign is used with respect to identical or similar services. In certain legal systems, the law prevents others from taking unfair advantage of trademarks enjoying widespread recognition, known as trademarks of repute or well-known trademarks, by providing that the trademark is also infringed by its use with respect to non-similar goods or services.

Trademark protection is territorial, and priority in a trademark is generally determined according to the date of filing or (less frequently) first use in the relevant territory. Thus, an applicant may be prevented from securing registration in certain

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jurisdictions of interest because others may have acquired rights in those jurisdictions thanks to earlier filing.

The use of the trademark ™ symbol or service mark SM symbol means that the owner is claiming trademark rights. Service marks perform the same function as trademarks, but they are used with respect to services rather than with respect to goods. In most legal systems, trademarks may also be registered with respect to services and service marks do not exist as a separate category. The registered symbol ® is used with respect to registered trademarks. Although not mandatory, the use of these symbols is recommended to inform third parties that trademark protection is claimed.

Some consultants have started using trademarks to protect the denominations of their diagnostic, assessment, problem-solving, training, self-development and other materials and instruments. For example, the Web page of Andersen (www.andersen.com) in 2001 contained KnowledgeSpace®, Global Best Practices®, Value Dynamics®, Human Capital Appraisal™, Fit-Cost-Value™ and Market IntegrationSM. In some cases even common words and their combinations have been used by consultants as registered marks or trademarks. For example, one consulting firm has put a trademark symbol ™ on “Managing Organizational Change”, thus trying to protect its exclusive right to use this “original and unusual” denomination of one of its instruments.

Patents

Patent law relates to inventions and is the strongest instrument of protection. It confers a monopoly of generally 20 years to exploit the invention in return for disclosure of details with respect to the invention. After expiry of the term of protection, anyone may use the invention. Thus, patent law protection is incompatible with trade secrets protection, which requires the information to be kept confidential.

The invention must be capable of industrial application. This requirement is usually met if the application of the invention produces technical effect, namely if the use or working of the invention produces certain tangible and physical consequences. In certain countries, software leading to technical change may be patented under certain conditions. In addition, the invention must be new. An invention is new if it does not form part of the state of the art, which includes all technical knowledge available to the public at the time of application for protection, whether through publications, writings, other patents or even oral descriptions, irrespective of the part of the world where the information becomes available. Therefore, before demonstrating or describing his or her invention to others, the consultant or the client should ensure that this will not jeopardize the application by compromising its novelty. Finally, the invention must involve an inventive step. This requirement is generally met if the invention is not obvious to a person skilled in the art.

The owner of the patent has the exclusive right to make, use, sell, distribute and import the invention. The law usually provides for a system of compulsory licences to prevent abuse of the monopoly by the patent owner. For instance, such a licence

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may be applied for under certain conditions if the invention is not used to a sufficient extent.

Licensing rates vary from industry to industry, but are usually between 1 per cent and 5 per cent of the gross sales of products or services that employ a patented technology. Another approach, the “25 per cent rule”, sets royalties as a percentage of net profits.13

Patent protection must be applied for, and is granted on a territorial basis, though international registration is provided for under certain international conventions, such as the Patent Cooperation Treaty of 1970 and the European Patent Convention of 1973. The registration process usually takes several years due to the lengthy investigations needed to establish whether the prerequisites for protection are met. The cost of protection may be very substantial, especially if protection is sought in a number of countries.

Historically, the breadth of patent protection has been tempered by a number of exclusions, including so-called mental steps, mathematical algorithms, abstract ideas, laws of nature, mere chemical formulas, fundamental truths, original causes, principles, motives, systems of bookkeeping and others, because they do not satisfy the requirement of industrial application or technical effect. Business methods were part of this list. Also computer software “unassociated with physical elements or process steps fell outside the scope of the patent statute because it was considered either the implementation of a mathematical algorithm, or a business method”.14 However, in a now famous ground-breaking 1998 decision in State Street Bank v. Signature Financial Group, the US Court of Appeals for the Federal Circuit ruled that a data-processing system configured for management of a “hub-and-spoke” mutual fund system, which apparently amounted to a “method of doing business”, was patentable. Since the State Street decision, numerous business method patents have been registered in the USA. Examples of such patents include electronic payment processes, incentive and reward models, Web advertising and user interface arrangements. While business methods are generally still not eligible for patenting in Europe, it cannot be excluded that the position will change in the future.

The inclusion of business methods among patentable intellectual property following the State Street decision can be viewed either as a courageous innovation that will boost new developments in IT and the knowledge-based economy, or as a decision that opens a Pandora’s box. A rush to get business and Internet methods patented has started. It is therefore no surprise that this move has provoked an animated debate in professional and business circles.15 There are fears that trivial and obvious methods may be granted legal protection, that patenting of business methods is a wrong policy which will hamper progress especially in e-business and new fields more generally, that patents may be granted on methods that have already been in use but have never been patented, that business methods and software patents should in any case have a much shorter life span than other patents (Jeff Bezos mentions 3–5 instead of 20 years) and that a public comment period before the patent is issued should allow for the business and Internet community to provide “prior art” references to the patent examiners and help to avoid the proliferation of bad patents.16

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This is a matter of direct interest to management consultants involved in the development of new business approaches, methods and programmes and systems – to be followed closely.

Intellectual property rights and the Internet

The Internet is an open, borderless medium, which permits communications and transactions between a potentially unlimited number of parties located anywhere in the world. These transactions increasingly involve intangible materials that form the subject matter of intellectual property rights. Thus the Internet represents a new challenge for the protection of these rights. There are frequent tensions between the global nature of the Internet and the system of intellectual property rights, which essentially involves protection on a country-by-country basis. In addition, it is often difficult to determine the applicable law and the court having jurisdiction in case of infringement of intellectual property rights.

Since the Internet allows for an unlimited number of copies of a protected work to be made and distributed virtually instantaneously, it is an environment particularly propitious to the infringement of intellectual property rights. Copyright may be infringed by simple actions such as appending protected materials available on the Internet to an email sent to your clients or incorporating protected images or photographs into your Web site. Users may infringe trademark rights by including in their pages a logo or icon that is registered as a trademark in certain jurisdictions. The practice of posting hypertext links on your Web site, enabling the user to access another site at the click of a button, may also infringe intellectual property rights in certain cases. Technological protection devices are being developed. Currently, encryption and watermarking are the most commonly used techniques. Encryption consists of providing information in a scrambled form so as to control the access to it by (for example) charging a fee for the decryption key. Watermarking is a way to include in a work information concerning the rights-holders, with the aim of dissuading others from appropriating someone else’s work.

The Internet enables the transmission and use in digital form of text, computer programs, sound, images and audiovisual works, all of which are protected by copyright. Copyright may also subsist, for example, in the structure and layout of a Web page. Intellectual property legislation generally lags behind technological change, and is therefore difficult to apply to the new issues raised by the Internet. For example, under the traditional conception of copyright, copyright can be theoretically infringed by each temporary copy of a copyright work as it is transmitted over the Internet.17

Many of the above-mentioned business method patents issued recently relate to the Internet. They provide protection for various techniques used by companies to promote and sell products and services over the Internet, such as techniques for sales and purchasing, online auctions and advertising.18

An increasing number of transactions are realized entirely over the Internet, with no other contact occurring between the supplier and the customer, either through personal visit, mail, telephone or other means. Accordingly, trademarks enabling

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suppliers to distinguish their products or services from those of other suppliers on the Internet are a key instrument of electronic commerce. However, the use of trademarks on the Internet upsets all traditional conceptions and definitions of rights. For instance, in countries where trademark protection is subject to prior use, can Internet use constitute prior use? While the answer appears to be positive, proving prior use may represent a challenge if the trademark was used exclusively on the Internet.

In addition, it is unclear how a trademark may be infringed by its use over the Internet. Should there be a link between the user of a sign and the country in which the trademark enjoys protection, or is it sufficient that the sign can be visible on a computer screen in the country? The latter interpretation could potentially lead to trademark infringements in countries where the owner of the sign was not even considering doing business. While it has been suggested that users could place disclaimers on their sites to avoid creating a link with particular countries, there would be practical difficulties in identifying the relevant countries. In the bricks- and-mortar world, the territoriality of trademark rights sorts out the problem of conflicting rights: two different people in two different countries can hold rights over the same sign with the same legitimacy. On the Internet, borders are abolished and the rights become conflicting.19

A frequent type of potential infringement is the unauthorized use of trademarks as metatags. A metatag is a keyword embedded in a Web site’s HTML code, which enables Internet search engines to categorize the contents of the site. In this case, the trademark is not used to distinguish particular goods or services. It is used to make a search engine list a particular Web site in response to search instructions, and the user may see the contents of the Web site by clicking on the search results. The trademark is not readily apparent to the human eye. Courts in some jurisdictions have found use of trademarks as metatags to constitute a trademark infringement. Under another practice, known as the “sale” of trademarks as keywords, a search engine “sells” a keyword to an advertiser. Whenever the keyword is entered into the search engine, an advertisement automatically appears along with the search results. While trademark owners have challenged this practice in court, it is still unclear whether it will be treated as a trademark infringement.

Another issue is raised by the bad faith registration of domain names identical or similar to well-known marks, known as “cybersquatting”. Domain names on the Internet are generally issued on a first-come first-served basis and, therefore, it is possible to apply for an Internet domain name even if you are not a company with that name. The cybersquatter’s intent is generally to resell the domain name to the trademark owner for a profit. Various remedies have been suggested, notably giving the exclusive right to use a trademark as a domain name to the trademark owner.

Harmonization of national legislations is essential to achieve adequate protection of intellectual property rights on the Internet. Examples of harmonization efforts at the international level include two treaties concluded in 1996 under the auspices of WIPO to deal with some of the challenges posed by the Internet, namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. In addition, in 1999, the Internet Corporation for Assigned Names and Numbers (ICANN)20 created a mandatory administrative dispute-resolution system with

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respect to top-level domains such as .com, .net. and .org. Disputes arising from abusive registrations of domain names (for example, cybersquatting) may be resolved by administrative proceedings brought by the holder of a trademark before an approved dispute-resolution provider.

Products of joint consultant and client work

Increasingly, the results of consulting projects are the products of joint work by the consultant and the client. If new knowledge suitable for legal protection is created, the key questions are with whom should the intellectual property rights be vested and who should benefit from them. Whenever such questions can be anticipated, a sufficiently precise and detailed reference should be made in the contract, to avoid later conflict or feelings of bitterness.

The issues to address include the following:

●Applicable legislation may determine the copyright-holder, but since the client will finance the work it may be agreed that the client will be licensed to use it and draw the financial benefits from this use. The use may be limited to the client’s field of activities and/or to a geographical area. Conversely, the consulting firm may want to retain the right to use the products of its work in other projects, which may be restricted to clients who are not the current client’s competitors.

●Consideration should be given to the importance of actual intellectual inputs to the project; for example, the product may be based on an already existing method or programme owned by the consultant and constitute only an adaptation to the client’s particular conditions.

●It should be made clear who will be responsible for soliciting legal protection and who will bear the costs, which are modest for copyright but may be much greater if patents or trademarks are involved.

●The agreed arrangement should be fair and reflect the sound principles of knowl- edge-sharing between consultants and clients, thus paving the way for creative and mutually beneficial future collaboration.

Finally, it is worth recalling that intellectual property, as any other issue in business, is not only a matter of law and business, but of ethics. A definition of “fair knowledge protection practice” may not always be available from the legislator and will depend on the consultant’s or his or her client’s value judgement, especially in new fields where law tends to lag behind technology, the market and social expectations.

1See www.wipo.org (visited on 4 Apr. 2002) and WIPO intellectual property handbook (Geneva, WIPO, 2001).

2There are, however, exceptions to this rule, one example of which is the Community Trade Mark (CTM). CTMs have effect throughout the European Union and may be registered with the Office for the Harmonisation of the Internal Market established in Alicante, Spain.

3FT Director, Financial Times, 21 June 2001.

4See, e.g., WIPO: Primer on electronic commerce and intellectual property issues at ecommerce.wipo.int/primer/index.html. (visited on 4 Apr. 2002).

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5For a recent overview of the trends see K. G. Rivette and D. Kline: “Discovering new value in intellectual property”, in Harvard Business Review, Jan.–Feb. 2000, pp. 54–66.

6A distinction must be drawn between the common law concept of copyright, based on economic rights, and the civil law concept of droit d’auteur, which stresses the importance of the “moral rights” of the author. For instance, copyright to a work is not transferable as such in civil law countries, although a similar result may usually be reached thanks to the grant of an exclusive licence to use the work.

7Examples of such collecting societies include the Performing Right Society (PRS) and Phonographic Performance Ltd (PPL) in the United Kingdom.

8In the United States, copyright protection exists from the moment of creation of the work. However, registration of the work with the US Copyright Office in the Library of Congress provides the owner of the work with a number of advantages and is a prerequisite to the exercise of certain rights, such as the right to sue for infringement. Therefore, registration is considered as good practice.

9It is worth noting that, in certain systems, for instance the United Kingdom, unregistered designs are also protected if certain conditions are met. In the United States, designs are protected as a special category of patent.

10The other types of marks that can be protected are certification marks and collective marks. Certification marks are signs used by several undertakings under the control of the owner of the sign. They indicate that the services or products meet certain quality standards, share the same geographical origin, manufacturing process or other common characteristics. Collective marks are intended to distinguish the products or services of the members of an association from the products or services of others.

11It is worth noting that, in certain countries, one may acquire the right to use a sign with respect to specific goods or services through continued use for a certain period of time without registration being required. However, while such prior use of a sign is opposable even to the owner of the same trademark or a similar trademark, it usually does not mean that others can be prevented from using the sign in relation to the same goods or services. Limited protection for unregistered signs may also be available under unfair competition law. For example, passing off, or attempting to pass off, the goods or services of one person as the goods or services of a competitor by using a sign similar or identical to that of such competitor, may be prohibited under unfair competition legislation if certain conditions are met.

12There are 34 classes for goods and 8 classes for services.

13Rivette and Kline, op. cit., p. 62.

14For detailed information see Business methods patents: Navigating the sea of controversy, and W. J. Marsden and J. A. Huffman: EBoom or EBust? “Business methods” patents and the future of Dotcommerce, at the Web site of Fish & Richardson (www.fr.com, visited on 4 Apr. 2002).

15See, e.g., An open letter from Jeff Bezos on the subject of patents

(www.amazon.com/exec/obidos/subst/misc/patents.html, visisted on 4 Apr. 2002).

16A number of important issues are raised in “Patently absurd?”, in The Economist Technology Quarterly, 23 June 2001, pp. 42–44.

17The EU Copyright Directive adopted in 2001 provides, however, that temporary copies that are necessary for the transmission of digital data do not lead to an infringement of copyright.

18For example, one such patent was awarded in 1999 to protect Amazon’s “one-click” technology, which allows a customer to place an order by clicking only one button.

19The question of territoriality of trademark protection also arises in relation to judicial injunctions. By ordering that an infringing use of a sign be ceased on the Internet, a court would in fact extend trademark protection provided by one country to the entire world, giving a “global effect” to its injunction. It is to be hoped that the courts will find a way to impose a localized prohibition through their injunctions, for example by prescribing the use of disclaimers or adequate technical means.

20The ICAAN is a technical coordination body for the Internet created by a broad coalition of its business, technical, academic and user communities.

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APPENDIX 6

USING CASE STUDIES OF MANAGEMENT

CONSULTING

1.Approach to using case studies

In teaching and learning consulting approaches and methods, the case method offers many advantages. It permits trainees to learn from experience and introduces consultants to various real-life situations that they could not experience or observe directly in their professional practice. It provides illustrations of consulting principles and methods, many of which are difficult to understand fully without having seen how they are applied in practical work with clients. Trainee consultants can work through the situations described in case studies and discuss how they themselves would act, work with the clients as well as with fellow consultants, and seek solutions. Both hard and soft methods of management and consulting can be taught and learned through the case method.

Consistent with the principles of the case method, case studies do not describe the complete case, including the final solutions and their consequences, thus leaving space for analysis, discussion and the search for solutions. Following the discussion of a case, the actual solution adopted in practice can then be made available and compared with the conclusions reached by course participants.

There are, then, case histories that describe consulting projects from A to Z. Some of them have been developed by consulting firms as learning materials from their own projects. This, however, is often difficult and rather delicate, since a true case history would in most cases have to reveal some facts about the client or the consultant (personalities, behaviour, competencies, relationships, flaws) that organizations often prefer to treat as confidential, or simply want to conceal because they are not proud of them. Indeed, in consulting it is not always easy to write a case history that everybody who knows the project is happy with.

A limited number of case histories of consulting are publicly available from the literature or on the Internet. A number of publications (some of them are listed in Appendix 3) have scrutinized the successes and failures of consulting in the past decade. These publications include material that not only provides entertaining reading but can also be used to study consulting. For example, the history of consulting to Figgie International, published by O’Shea and Madigan in Dangerous company,

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is full of lessons and can serve either for self-study or as a basis for discussing consulting approaches, strategies, methods, communication with management, roles and responsibilities, project monitoring, consultant selection and evaluation, control of costs, etc. In recommending case histories to learners the trainer or training adviser should keep the purpose in mind and also make provision for discussing the key issues arising. Inexperienced learners might draw wrong conclusions and develop a distorted picture of the consulting profession from sensational histories of extraordinary successes or failures.

2.Where to look for case material1

●Your personal or your firm’s experience is the best source of case material, provided that there are no barriers to translating this experience into meaningful learning material (confidentiality, the client’s agreement, willingness to reveal delicate issues, ability to conceptualize and see issues of wider importance to learning behind particular events and facts).

●Case clearing houses; for example, Harvard Business School Press (see www.hbsp.harvard.edu) distributes case materials on consulting to the Hewlett-Packard’s Santa Rosa Systems Division written by Michael Beer and Gregory C. Rogers, and other relevant cases. A selection of consulting cases can be found in the case database of the Management Consulting Association attached to the Leonard N. Stern School of Business of the New York University (www.stern.nyu.edu).

●Books on the consulting industry (see Appendix 3).

●Business and professional journals, books and Web sites provide from time to time case histories that represent good material for the study of consulting. A few recent examples:

–A case study of “e-consulting” (Vanessa Richardson and Julia Lawlor: “Resolving the consultant clash”) appeared in the 13 Feb. 2001 issue of the Red Herring Magazine (www.redherring.com).

–Consulting to small business is the subject of a case history “When consultants attack: A client’s story”, in Consultants News, Apr. 2001 (www.KennedyInfo.com).

–Consulting to a family business is the subject of “The ghost in the family business” by Warren D. Miller, in Harvard Business Review, May–June 2000, pp. 34–51.

–Learning from failure is the purpose of W. Czander’s case history “A failed consultation”, in Consulting to Management, June 2001, pp. 26–31.

–“Waking up IBM: How a gang of unlikely rebels transformed Big Blue” by Gary Hamel, in Harvard Business Review, July–Aug. 2000, pp. 137–146, describes how IBM caught the Internet wave and what roles internal change agents/consultants played in this major transformation process.

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–Case histories demonstrating the impact of people management on financial performance of offices of professional service firms in different countries can be found in D. Maister: Practice what you preach: What managers must do to create a high-achievement culture (New York, The Free Press, 2001).

3.Guidance on the case method

Concise guidance on the case method itself is provided in Chapter 14 (“Case method”) by John Reynolds, in J. Prokopenko (ed.): Management development: A guide to the profession (Geneva, ILO, 1998). See also C. R. Christensen: Teaching and the case method (Boston, MA, HBS Press, 1987).

4.Case history of process consulting

Process consulting is particularly difficult to explain and understand if the description is reduced to general concepts and principles. Therefore in the remaining part of this appendix we give the full text of a case history of process consulting, the Apex Manufacturing Company case, written by Edgar H. Schein and taken from the first edition of Process consultation: Its role in organization development (Reading, MA, Addison-Wesley, 1969).

Apex Manufacturing Company

1.Initial contact with the client and defining relationships

The contact client from the Apex Manufacturing Company was a divisional manager one level below the president. The company is a large manufacturing concern, organized into several divisions. The contact client indicated that there were communication problems in the top management group resulting from a recent reorganization. Because the company expected to grow rapidly in the next several years, they felt they should work on this kind of problem now.

He spoke openly about his concern that the president needed help in handling certain key people, shared his worries that the president and his key subordinates were not in good communication, and indicated that recent company history suggested the need for some stabilizing force in the organization. I asked him whether the president knew he had come to me and what the president’s feelings were about bringing in a consultant. The contact client indicated that the president as well as other key executives were all in favour of bringing someone in to work with them. All saw the need for some outside help.

Eventually, after many months of working with the president and his six key subordinates, I arrived at a point where all of them saw me as a potentially useful communication link. They asked me quite sincerely to report to each one the feelings or reactions of others whenever I learned anything I felt should be passed on. At the same time they were quite open with me about each other, knowing that I might well

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pass on any opinions or reactions they voiced to me. They did not want me to treat everything as confidential because they trusted me and each other enough.

This case was of great interest because of my own feeling that my having to serve as carrier of this type of information was not an ideal role for me, and reflected an insufficient ability on their part to tell each other things directly. Hence I took two courses of action. First, I tried as much as possible to train each man to tell others in the group directly what he thought about an issue. At the same time I intervened directly in their process by passing on information and opinions if I felt this would aid the working situation.

A simple yet critical event will illustrate what I mean. Two members, Pete and Joe, did not always communicate freely with each other, partly because they felt some rivalry. Pete had completed a study and written a report which was to be discussed by the whole group. Three days before the report was due, I visited the company and stopped in at Pete’s office to discuss the report with him and ask how things were going. He said they were fine, but frankly he was puzzled about why Joe hadn’t come to him to look at some of the back-up data pertaining to Joe’s function. Pete felt this was just another bit of evidence that Joe did not really respect Pete very much.

An hour or so later I was working with Joe, and raised the issue of the report. Joe and his staff were very busy preparing for the meeting but nothing was said about looking at the back-up data. When I asked why they had not done anything about the data, Joe said that he was sure it was private and would not be released by Pete. Joe wanted badly to see it, but felt sure that Pete had deliberately not offered it. I decided there was no harm in intervening at this point by reporting to Joe how Pete was feeling. Joe expressed considerable surprise; and later in the day, he went to Pete, who gave him a warm welcome and turned over to him three volumes of the data which Joe had been wanting to see and which Pete had wanted very much to share with him. I had to judge carefully whether I would hurt either Pete or Joe by revealing Pete’s feelings. In this case I decided the potential gains outweighed the risks.

Getting back to setting the proper expectations on the part of the company, I have to make it very plain that I will not function as an expert resource on human-relations problems, but that I will try to help the group solve those problems by providing alternatives and by helping them to think through the consequences of various alternatives. I also need to stress my expectation that I will gather data primarily by observing people in action, not by interviewing and other survey methods (though these methods would be used whenever appropriate). Finally, I have to point out that I will not be very active, but will comment on what is happening or give feedback on observations only as I feel it will be helpful to the group.

The fact that I will be relatively inactive is often a problem for the group because of their expectation that once they have hired a consultant they are entitled to sit back and just listen to him tell them things. To have the consultant then spend hours sitting in the group and saying very little not only violates this expectation but also creates some anxiety about what he is observing. The more I can reassure the group early in the game that I am not gathering personal data of a potentially damaging nature, the smoother the subsequent observations will go.

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In summary, part of the early exploration with the contact client and any associates whom he involves is intended to establish the formal and psychological contract which will govern the consultation. I feel there should be no formal contract beyond an agreement on a per diem fee and a potential number of days to be devoted to working with the client system. Each party should be free to terminate or change the level of involvement at any time. At the psychological contract level, it is important to get out into the open as many misconceptions as possible, and to try to be as clear as possible about my own style of work, aims, methods, and so on.

2.Method of work

The method of work chosen should be as congruent as possible with the values underlying process consultation. Thus, observation, informal interviewing, and group discussions would be congruent with:

(1)the idea that the consultant does not already have pat answers or standard “expert” solutions; and

(2)the idea that the consultant should be maximally available for questioning and two-way communication.

If the consultant uses methods like questionnaires or surveys, he himself remains an unknown quantity to the respondent. As long as he remains unknown, the respondent cannot really trust him, and hence cannot really answer questions completely honestly. The method of work chosen, therefore, should make the consultant maximally visible and maximally available for interaction.

Often I choose to start a consultation project with some interviewing, but the purpose of the interview is not so much to gather data as to establish a relationship with each of the people who will later be observed. The interview is designed to reveal myself as much as it is designed to learn something about the other person. I will consider the use of questionnaires only after I am well enough known by the organization to be reasonably sure that people would trust me enough to give direct and frank answers to questions.

In the Apex Company, the exploratory meeting led to the decision to attend one of the regular meetings of the executive committee. At this time I was to meet the president and the other key executives to discuss further what could and should be done. At this meeting, I found a lively interest in the idea of having an outsider help the group and the organization to become more effective. I also found that the group was willing to enter an open-ended relationship. I explained as much as I could my philosophy of process consultation and suggested that a good way of getting further acquainted would be to set up a series of individual interviews with each member of the group. At the same time, I suggested that I sit in on the weekly half-day meetings of the executive committee. The interviews would then occur after several of these meetings.

At the initial meeting of the group, I was able to observe a number of key events. For example, the president, Alex, was very informal but very powerful. I got the impression initially (and confirmed it subsequently) that the relationship of all the group members to the president would be the key issue, with relationships to each

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other being relatively less important. I also got the impression that Alex was a very confident individual who would tolerate my presence only as long as he saw some value in it; he would have little difficulty in confronting me and terminating the relationship if my presence ceased to have value.

It was also impressive, and turned out to be indicative of a managerial style, that Alex did not feel the need to see me alone. He was satisfied from the outset to deal with me inside the group. Near the end of the initial meeting, I requested a private talk with him to satisfy myself that we understood the psychological contract we were entering into. He was surprisingly uncomfortable in this one-to-one relationship, had little that he wished to impart to me, and did not show much interest in my view of the relationship. I wanted the private conversation in order to test his reaction to taking some personal feedback on his own behaviour as the consultation progressed. He said he would welcome this and indicated little or no concern over it. As I was to learn later, this reflected a very strong sense of his own power and identity. He felt he knew himself very well and was not a bit threatened by feedback.

Part of the initial mandate was to help the group to relate to the president. In the interviews which I conducted with group members, I concentrated quite heavily on what kind of things went well in the relationship; what kind of things went poorly; how relationship problems with the president were related to job performance; in what way the group members would like to see the relationship change, and so on. I did not have a formal interview schedule, but rather, held an informal discussion with each member around issues of the sort I have just mentioned.

Intervention by the consultant

In the Apex Company, I found that the treasurer consistently made the operating managers uncomfortable by presenting financial information in an unintentionally threatening way. He wanted to be helpful, and he felt everyone needed the information he had to offer, but it often had the appearance of an indictment of one of the other managers; his costs were too high, his inventory control had slipped, he was too high over budget, etc. Furthermore, this information was often revealed for the first time in the meeting, so that the operating manager concerned had no forewarning and no opportunity to find out why things had gone out of line. The result was often a fruitless argument about the validity of the figures, a great deal of defensiveness on the part of the operating manager, and irritation on the part of the president because the managers could not deal more effectively with the treasurer.

As I observed this process occurring repeatedly over several weeks, I decided that merely drawing attention to the pattern would not really solve the problem because everyone appeared to be operating with constructive intent. What the group needed was an alternative way to think about the use of financial control information. I therefore wrote a memo on control systems and circulated it to the group.

When this came up for discussion at a later meeting I was in a better position to make my observations about the group, since a clear alternative had been presented. My feeling was that I could not have successfully presented this theory orally because of the amount of heat the issue always generated, and because the group

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members were highly active individuals who would have wanted to discuss each point separately, making it difficult to get the whole message across.

In working with the Apex group I found the written “theory memo” a convenient and effective means of communication. With other groups I have found different patterns to be workable. For example, if the group gets away for a half-day of work on group process, I may insert a half-hour in the middle (or at the end) of the session to present whatever theory elements I consider to be relevant. The topics are usually not selected until I observe the particular “hang-ups” which exist in the group. I therefore have to be prepared to give, on short notice, an input on any of a variety of issues.

A final method of theory input is to make reprints of relevant articles available to the group at selected times. Often I know of some good piece of theory which pertains to what the group is working on. If I suggest that such an article should be circulated, I also try to persuade the group to commit some of its agenda time to a discussion of the article.

The key criterion for the choice of theory input is that the theory must be relevant to what the group already senses is a problem. There is little to be gained by giving “important” theory if the group has no data of its own to link to the theory. On the other hand, once the group has confronted an issue in its own process, I am always amazed at how ready the members are to look at and learn from general theory.

Agenda-setting interventions may strike the reader as a rather low-key, lowpotency kind of intervention. Yet it is surprising to me how often working groups arrive at an impasse on simple agenda-setting issues. In a way, their inability to select the right agenda for their meetings, and their inability to discuss the agenda in a constructive way, is symbolic of other difficulties which are harder to pinpoint. If the group can begin to work on its agenda, the door is often opened to other process discussions. Let me provide some examples of how this approach works.

In the Apex Company I sat in for several months on the weekly executivecommittee meeting, which included the president and his key subordinates. I quickly became aware that the group was very loose in its manner of operation: people spoke when they felt like it, issues were explored fully, conflict was fairly openly confronted, and members felt free to contribute. This kind of climate seemed constructive, but it created a major difficulty for the group. No matter how few items were put on the agenda, the group was never able to finish its work. The list of backlog items grew longer and the frustration of group members intensified in proportion to this backlog. The group responded by trying to work harder. They scheduled more meetings and attempted to get more done at each meeting, but with little success. Remarks about the ineffectiveness of groups, too many meetings, and so on, became more and more frequent.

My diagnosis was that the group was overloaded. Their agenda was too large, they tried to process too many items at any given meeting, and the agenda was a mixture of operational and policy issues without recognition by the group that such items required different allocations of time. I suggested to the group that they seemed overloaded and should discuss how to develop their agenda for their meetings. The suggestion was adopted after a half-hour or so of sharing feelings. It was then decided, with my help, to sort the agenda items into several categories, and to devote some

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meetings entirely to operational issues while others would be exclusively policy meetings. The operations meetings would be run more tightly in order to process these items efficiently. The policy questions would be dealt with in depth.

Once the group had made this separation and realized that it could function differently at different meetings, it then decided to meet once a month for an entire day. During this day they would take up one or two large questions and explore them in depth. The group accepted my suggestion to hold such discussions away from the office in a pleasant, less hectic environment.

By rearranging the agenda, the group succeeded in rearranging its whole pattern of operations. This rearrangement also resulted in a redefinition of my role. The president decided that I should phase out my attendance at the operational meetings, but should plan to take a more active role in the monthly one-day meetings. He would set time aside for presentation of any theory I might wish to make, and for process analysis of the meetings. He had previously been reluctant to take time for process work in the earlier meeting pattern, but now welcomed it.

The full-day meetings changed the climate of the group dramatically. For one thing, it was easier to establish close informal relationships with other members during breaks and meals. Because there was enough time, people felt they could really work through their conflicts instead of having to leave them hanging. It was my impression that as acquaintance level rose, so did the level of trust in the group. Members began to feel free to share more personal reactions with each other. This sense of freedom made everyone more relaxed and readier to let down personal barriers and report accurate information. There was less need for defensive distortion or withholding.

After about one year the group decided quite spontaneously to try some direct confrontive feedback. We were at one of the typical monthly all-day meetings. The president announced that he thought each group member should tell the others what he felt to be the strengths and weaknesses of the several individuals. He asked me to help in designing a format for this discussion. I first asked the group members whether they did in fact want to attempt this type of confrontation. The response was sincerely positive, so we decided to go ahead.

The format I suggested was based upon my prior observation of group members. I had noticed that whenever anyone commented on anyone else, there was a strong tendency to answer back and to lock in on the first comment made. Hence, further feedback tended to be cut off. To deal with this problem I suggested that the group discuss one person at a time, and that a ground rule be established that the person being described was not to comment or respond until all the members had had a chance to give all of their feedback. This way he would be forced to continue to listen. The ground rule was accepted, and I was given the role of monitoring the group to ensure that the process operated as the group intended it to.

For the next several hours the group then went into a very detailed and searching analysis of each member’s managerial and interpersonal style, including that of the president. I encouraged members to discuss both the positives and the negatives they saw in the person. I also played a key role in forcing people to make their comments specific and concrete. I demanded examples, insisted on clarification, and generally

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asked the kind of question which I thought might be on the listener’s mind as he tried to understand the feedback. I also added my own feedback on points I had observed in that member’s behaviour. At first it was not easy for the group either to give or receive feedback, but as the day wore on, the group learned to be more effective.

The total exercise of confrontation was considered highly successful, both at the time and some months later. It deepened relationships, exposed some chronic problems which now could be worked on, and gave each member much food for thought in terms of his own self-development. It should be noted that the group chose to do this spontaneously after many months of meetings organized around work topics. I am not sure they could have handled the feedback task effectively had they been urged to try sooner, even though I could see the need for this type of meeting some time before the initiative came from the group.

In this case, my intervention tended to help the group move from chaotic meetings toward a differentiated, organized pattern. In the end, the group spent more time in meetings than before, but they minded it less because the meetings were more productive. The group also learned how to manage its own agenda and how to guide its own processes.

Feedback systems to groups and individuals

After getting to know the top-management group through several group meetings, I suggested that it might be useful to interview and give feedback to the next level below the vice-president. There was some concern on the part of the senior group that there might be a morale problem at this level. Initially I was asked merely to do an interview survey and report back to the top group. I declined this approach for reasons already mentioned: gathering data to report to a higher group would violate processconsulting assumptions because it would not involve the sources of the data in analysing their own process. I suggested instead that I conduct the interviews with the ground rule that all my conclusions would first be reported back to the interviewee group, and that I would tell top management only those items which the group felt should be reported. The group would first have to sort the items and decide which things they could handle by themselves and which should be reported up the line of authority because they were under higher management control. The real value of the feedback should accrue to the group which initially provided the data; they should become involved in examining the issues they had brought up, and consider what they themselves might do about them.

The above-mentioned procedure was agreed upon by the top management. One vice-president sent a memorandum to all members who would be involved in the interview programme, informing them of the procedure, his commitment to it, and his hope that they would participate. I then followed up with individual appointments with each person concerned. At this initial appointment I recounted the origin of the idea, assured the interviewee that his individual responses would be entirely confidential, told him that I would summarize the data by department, and told him that he would see the group report and discuss it before any feedback went to his boss or higher management.

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In the interview I asked each person to describe his job, tell what he found to be the major pluses and minuses in the job, describe what relationships he had to other groups, and how he felt about a series of specific job factors such as challenge, autonomy, supervision, facilities, salary and benefits, and so on. I later summarized the interviews in a report in which I tried to highlight what I saw to be common problem areas.

All the respondents were then invited to a group meeting at which I passed out the summaries, and explained that the purpose of the meeting was to examine the data, deleting or elaborating where necessary, and to determine which problem areas might be worked on by the group itself. We then went over the summary item by item, permitting as much discussion as any given item warranted.

The group meeting had its greatest utility in exposing the interviewees, in a systematic way, to interpersonal and group issues. For many of them, what they had thought to be private gripes turned out to be organizational problems which they could do something about. The attitude “let top management solve all our problems” tended to be replaced with a viewpoint which differentiated between intra-group problems, inter-group problems, and those which were higher management’s responsibility. The interviewees not only gained more insight into organizational psychology, but also responded positively to being involved in the process of data gathering itself. It symbolized to them top management’s interest in them and concern for solving organizational problems. Reactions such as these are typical of other groups with whom I have tried the same approach.

Following the group meeting, the revised summary was then given to top management, in some cases individually, in others, in a group. My own preference is to give it first individually, to provide for maximum opportunity to explain all the points, and then to follow up with a group discussion of the implications of the data revealed in the interviews. Where the direct supervisor of the group is involved, I have often supplemented the group report with an individual report, which extracts all the comments made by interviewees concerning the strengths and weaknesses of the supervisor’s style of management. These focused feedback items have usually proved of great value to the manager, but they should be provided only if the manager initially asked for this type of feedback.

In giving either individual or group feedback from the interview summary, my role is to ensure understanding of the data and to stimulate acceptance of it, so that remedial action of some sort can be effectively undertaken. Once the expectation has been built that top management will do something, there is great risk of lowering morale if the report is merely read, without being acted upon in some manner. Incidentally, it is the process consultant’s job to ensure that top management makes this commitment initially and that high-level officials understand that when the interviews are completed there will be some demands for action. If management merely wants information (without willingness to do something about the information), the process consultant should not do the interviews in the first place. The danger is too great that management will not like what it hears and will suppress the whole effort; such a course will only lead to a deterioration of morale.

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The results of interviews (or questionnaires) do not necessarily have to go beyond the group which is interested in them. One of the simplest and most helpful things a group can do to enhance its own functioning is to have the consultant interview the members individually and report back to the group as a whole a summary of its own members’ feelings. It is a way of hauling crucial data out into the open without the risk of personal exposure of any individual if he feels the data collected about him are damaging or that the analysis of such data will result in conclusions that are overcritical of his performance.

The giving of individual feedback can be illustrated from several cases. In the Apex Company I met with each of the vice-presidents whose groups had been interviewed and gave them a list of comments which had been made about their respective managerial styles. I knew each man well and felt that he would be able to accept the kind of comments which were made. In each case we scheduled at least a one-hour session, so we could talk in detail about any items which were unclear and/or threatening.

These discussions usually become counselling sessions to help the individual overcome some of the negative effects which were implied in the feedback data. Since I knew that I would be having sessions such as these, I urged each interviewee to talk at length about the style of his boss and what he did or did not like about it. In cases where the boss was an effective manager, I found a tendency for subordinates to make only a few vague generalizations which I knew would be useless as helpful feedback. By probing for specific incidents or descriptions, it was possible to identify just what the boss did which subordinates liked or did not like.

Making suggestions

The consultant must make it quite clear that he does not propose any particular solution as the best one. However frustrating it might be to the client, the process consultant must work to create a situation where the client’s ability to generate his own solutions is enhanced. The consultant wants to increase problem-solving ability, not to solve any particular problem.

In my experience there has been only one class of exceptions to the above “rule”. If the client wants to set up some meetings specifically for the purpose of working on organizational or interpersonal problems, or wants to design a datagathering method, then the consultant indeed does have some relevant expertise which he should bring to bear. From his own experience he knows better than the client the pros and cons of interviews or questionnaires: he knows better what questions to ask, how to organize the data, and how to organize feedback meetings; he knows better the right sequence of events leading up to a good discussion of interpersonal process in a committee. In such matters, therefore, I am quite direct and positive in suggesting procedures, who should be involved in them, who should be told what, and how the whole project should be handled.

For example, I recall that in the Apex Company the president decided at one of their all-day meetings to try to give feedback to all the members. He asked me to suggest a procedure for doing this. In this instance I was not at all reluctant to suggest, with as much force and logic as I could command, a particular procedure which I

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thought would work well. Similarly, when it was proposed to interview all the members of a department, I suggested exactly how this procedure should be set up; I explained that all the members had to be briefed by the department manager, that a group feedback meeting would have to be held, and so on. I have not been at all hesitant in refusing to design a questionnaire study if I thought it was inappropriate, or to schedule a meeting on interpersonal process if I thought the group was not ready.

In conclusion, the process consultant should not withhold his expertise on matters of the learning process itself; but he should be very careful not to confuse being an expert on how to help an organization to learn with being an expert on the actual management problems which the organization is trying to solve. The same logic applies to the evaluation of individuals; I will under no circumstances evaluate an individual’s ability to manage or solve work-related problems; but I will evaluate an individual’s readiness to participate in an interview survey of his group or a feedback meeting. If I feel that his presence might undermine some other goals which the organization is trying to accomplish, I will seek a solution which will bypass this individual. These are often difficult judgements to make, but the process consultant cannot evade them if he defines the overall health of the organization as his basic target. However, he must always attempt to be fair both to the individual and the organization. If no course of action can be found without hurting either, then the whole project should probably be postponed.

3.Evaluation of results

Considerable value change and skill growth occurred over the course of the first year. During this time I spent a great deal of time in two major activities: (1) sitting in on various meetings of the top-management group; and (2) conducting interview and feedback surveys of various key groups, as managers decided they wanted such interviews done. In addition, there were periods of individual counselling, usually resulting from data revealed in the interviews.

I have already given examples of the kind of specific activities which occurred in the group meetings, interviews and feedback sessions. It was clear that with increasing experience, the group was learning to tune in on its own internal processes (skill), was beginning to pay more attention to these and to give over more meeting time to analysis of interpersonal feelings and events (value change), and was able to manage its own agenda and do its diagnosis without my presence (skill). The group first discovered this from having to conduct some of its all-day meetings in my absence. Where such meetings used to be devoted entirely to work content, the group found that even in my absence they could discuss interpersonal process with profit. The members themselves described this change as one of “climate”. The group felt more open and effective; members felt they could trust each other more; information was flowing more freely; less time was being wasted on oblique communications or political infighting.

During the second year, my involvement was considerably reduced, though I worked on some specific projects. The company had set up a committee to develop a management development programme. I was asked to sit in with this committee

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and help in the development of a programme. After a number of meetings, it became clear to me that the kind of programme the group needed was one in which the content was not too heavily predetermined. The problems of different managers were sufficiently different to require that a formula should be found for discussing the whole range of problems. One of the reflections of the value change which had taken place in the managers was their recognition that they should be prime participants in any programme which they might invent. If a programme was not exciting or beneficial enough to warrant the committee’s time, it could hardly be imposed on the rest of the organization.

We developed a model which involved a series of small-group meetings at each of which the group would set its own agenda. After every third meeting or so, a larger management group would be convened for a lecture and discussion period on some highly relevant topic. Once the first group (the committee plus others at the vice-president level) had completed six to eight meetings, each member of the original group would become the chairman for a group at the next lower level of the organization. These ten or so next-level groups would then meet for six to eight sessions around agenda items developed by themselves. In the meantime the lecture series would continue: After each series of meetings at a given organizational level, the model would be reassessed and either changed or continued at the next lower level with the previous members again becoming group chairmen.

My role in this whole enterprise was, first, to help the group to invent the idea; second, to meet with the original group as a facilitator of the group’s efforts to become productive; third, to serve as a resource on topics to be covered and lecturers to be used in the lecture series; and, fourth, to appear as an occasional lecturer in the lecture series or as a source of input at a small-group meeting. As this procedure took form, my involvement was gradually reduced, though I still met with the original committee to review the overall concept.

In recent months I have met occasionally with individual members of the original group and with the group as a whole. My function during these meetings is to be a sounding-board, to contribute points of view which might not be represented among the members, and to help the group to assess its own level of functioning. I have been able to provide the group with some perspective on its own growth as a group because I could more easily see changes in values and skills. It has also been possible for the group to enlist my help with specific interpersonal problems. A measure of the growth of the group has been its ability to decide when and how to use my help, and to make those decisions validly from my point of view in terms of where I felt I could constructively help.

4.Disengagement: reducing involvement with the client system

The process of disengagement has, in most of my experiences, been characterized by the following features where:

(1)reduced involvement is a mutually agreed upon decision rather than a unilateral decision by consultant or client;

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(2)involvement does not generally drop to zero but may continue at a very low level;

(3)the door is always open from my point of view for further work with the client if the client desires it.

In most of my consulting relationships there has come a time when either I felt that nothing more could be accomplished and/or some members of the client system felt the need to continue on their own. To facilitate a reduction of involvement, I usually check at intervals of several months to see whether the client feels that the pattern should remain as is or should be altered. In some cases where I have felt that a sufficient amount has been accomplished, I have found that the client did not feel the same way and wanted the relationship to continue on a day-a-week basis. In other cases, I have been confronted by the client, as with the Apex Company, with the statement that my continued attendance in the operational group meetings was no longer desirable from his point of view. As the president put it, I was beginning to sound too much like a regular member to be of much use. I concurred in the decision and reduced my involvement to periodic all-day meetings of the group, though the initiative for inviting me remained entirely with the group. Had I not concurred, we would have negotiated until a mutually satisfactory arrangement had been agreed upon. I have sometimes been in the situation of arguing that I should remain fully involved even when the client has wanted to reduce involvement, and in many cases I have been able to obtain the client’s concurrence.

The negotiation which surrounds a reduction of involvement is in fact a good opportunity for the consultant to diagnose the state of the client system. The kind of arguments which are brought up in support of continuing (or terminating) provide a solid basis for determining how much value and skill change has occurred. The reader may feel that since the client is paying for services, he certainly has the right to make unilateral decisions about whether or not to continue these services. My point would be that if the consultation process has even partially achieved its goals, there should arise sufficient trust between consultant and client to enable both to make the decision on rational grounds. Here again, it is important that the consultant should not be economically dependent upon any one client, or his own diagnostic ability may become biased by his need to continue to earn fees.

1 All Web sites visited on 9 Apr. 2002.

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