With all the hand-wringing over contract litigation and negotiation surrounding force majeure clauses, some in-house counsel might have lost sight of the importance of maintaining business relationships during the COVID-19 pandemic. 

In a blog post titled "You Don't Always Win by Being Right All the Time," Rich Gorelick, president of consultancy firm General Counsel Strategies, warned about the dangers of taking a win-at-all-costs approach to coronavirus-related legal issues, particularly when it comes to the enforceability of contracts. 

Gorelick urged corporate counsel to "consider what 'winning' means for your company at this time," when businesses throughout the world are struggling and unable to fulfill certain contractual obligations.

"At the end of the day, you want to get whatever your contract is for. You don't want damages," he said Monday in an interview. "My advice to everybody would be to help with the recovery. You have to be a self-advocate, but hopefully your clients can see the picture that perhaps winning is defined differently than maybe what it was before this." 

Gorelick, who formerly served as the top lawyer and corporate vice president for medical tech firm Integra LifeSciences Holdings Corp., asserted that legal departments are in a unique position amid the coronavirus outbreak. 

In-house lawyers and their companies could take "strong, uncompromising positions," ignore the plight of their foundering business partners and demand payment or performance under the black letter language in their contracts. 

"Technically, you will be 'right' to adopt that course of action, especially if the contract does not have a force majeure provision that excuses performance," Gorelick wrote in the post.  

Instead, Gorelick said corporate counsel should be focused not on winning contract disputes but on crafting "solutions that are meant to preserve and fortify relationships that will endure this crisis and crises in the future." 

Tim Voss, senior vice president, chief technology officer and chief information security officer for The Estee Lauder Companies Inc. in New York, said firms that have a more "people-based, relationship-based" perspective are better positioned now and will have an advantage later over counterparts who have taken a rigid approach to contracts.

"I think at this point it's a matter of leveraging the relationships that you have and trying to maintain that relationship through this and beyond," Voss said. He agreed to share his personal opinions on the issue and was not speaking for Estee Lauder. 

"Technology changes so rapidly … that you need to make sure you have fluidity in your agreements and you get that by having a relationship where you can work through problems and challenges together," he added.  

Gorelick's post resonated with Ed Hansen, a partner at Nelson Mullins Riley & Scarborough in New York who is focused on deals that transform how companies do business. He said he has urged clients for years to be less ruthless about contract negotiation and enforcement. 

"Mainly because of the types of deals that I do, the relationship that you form with the client is in all ways more important than the contract that you end up with," said Hansen, who is a member of a LinkedIn group called "Negotiating for Humans."

Hansen hoped that the pandemic would be a turning point and spur more empathetic contract negotiations. But, so far, he said the coronavirus seems to have "amplified everything that everyone was doing before this hit."

"If you're the type of company that's cutthroat with you vendors, this is an opportunity for you to really cut their throats," he said. "If you're the type of company that is more relationship-based in the ways that you worked with your vendors then this is an opportunity to work through it together."