Outside The Box? What Box? I Don't See any Box.

Author Richard Solomon is a conflicts and crisis management lawyer with four decades of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.


He thinks outside the box is an oft used statement to describe someone who can conceptualize and execute an agenda beyond common perception. That people think there is a box illustrates my contention that institutions - large companies and large law firms among others - are slaves to template thinking. The larger the institution/company, the more template configured it must be in order to avoid the chaos of idiosyncrasy. Because of that they are rather easy to defeat/overcome/outmaneuver by someone not template limited.

The point of this article is that even within a heavily templated institution nuances enable avoidance of the pitfalls of templating when it comes to dispute avoidance/management. Dispute prevention has to be nuanced. It does not fit any box/template. Slight company culture adjustment enables up front candor when difficulties first begin to take root. The costs of disputes are now incredibly wasteful. It is not unusual for an avoidable dispute to cost over $500,000 in legal fees and expenses, plus whatever award may be provided by settlement or judgment/award. To most companies that is not chump change. And that does not take into account lost productivity and disruption costs. I don't know any executive who does not loathe having to go before a court reporter, be sworn to tell the truth,and then be cross questioned about things she wrote or approved. It is extremely valuable to be able to minimize or avoid conflict.

One of the most serious problems of templating is that it prohibits/does not make allowances for creative diversity. Franchising as a concept perfectly demonstrates this.

The most honored mantra of franchising is that it must be cloned everywhere - no room for disparate seasonality or regionality. This causes a franchise company's principal field of product or service endeavor very quickly to become commoditized. The same burger, hot dog, pizza, everywhere is, frankly speaking, simply dull. The same building and signage designs everywhere, while in the beginning perhaps a positive brand recognition necessity, quickly becomes ho hum. That is so much more so today than it was 40 years ago, but recognition of that is refused everywhere.

The operative marketing assumption is that all customers are lazy and stupid; that they must be conditioned to auto react upon encountering any aspect of any brand identifier; and that this requires absolute uniformity everywhere. That is not quite as reliable as it was once thought to be. Even McDonald's is making allowances for disparate design options in areas where zoning or other code restrictions are demanding appearance compliance as a local issue. That same approach works in other disparate configurations as well.

A franchise company, once brand recognition is achieved, becomes a more durable and financially productive enterprise when it is made adaptable to seasonality, regionality and diverse in appearance if not in name. It prolongs the concept life cycle as it morphs to meet seasonal, cultural, local and regional diversity. Even population diversity differences represent growth/health opportunities to a group with creative, imaginative approach capability. Using a combination of regional test markets and LTO tactics, the marketing metrics would not be difficult or expensive to determine.

Now that so many categories of business are simply overpopulated commodity markets,the attractiveness of "outside the box" management is compelling. Templating is pervasive in human institutions, and in economics and finance, templating has caused every transaction and relationship to be more susceptible to fractious consequences than ever intended by the parties.

How this has worked in my own experience demonstrates the validity of this contention. I have very often been called upon to find creases in very complex agreements and transactions in which there are hidden opportunities to frustrate the enforcement of the agreement. That is a large part of my professional practice, and I do it representing those who want to enforce the agreements as well as those who want to frustrate them. "Going both ways" as I have sometimes been described, has enabled me to deal with template dynamics from every possible perspective. Resultingly, for me at least, there is no box for me to escape. The "box" only exists for others. Those "others" cannot escape from the box because to do so will cause them to be ostracized by their peers to whom box/templated existence is a fundamental doctrine of their enterprise.

It seems today that the development of economic models has emasculated the very free style thought that enabled the model to exist in the first place.

Paint fumes conceptualizing produces the same delirium, a universal oooommm mantra of uniformity. In our education we are instructing people to consider as their constitutional "programming" the rules, thoughts, considerations, habits, questions, ideas, notions, tastes, preferences of successful people/organizations. What would The Grand Panjandrum of chicken sandwiches ask? In what order would the High King of hamburgerdom consider options and priorities? These are templating considerations. What have these folks missed that is compelled/opened by market evolution is a far more enlightening inquiry.