What’s Missing From Most Advice On Negotiating?

Written by Mike Shapiro | | January 26, 2017

You’ve been there. You’re eager to get started on a new project with a new client or joint venture partner. But first you have to get the agreement signed. And that means you’ve got to hammer out the terms.

There’s no shortage of advice out there about how to negotiate an agreement. And a lot of it provides good, solid guidance:

  1. Have a clear picture about what you want to accomplish. Focus on the interests of the parties and don’t get stuck inside a particular position.
  2. Listen very carefully and empathically to what the other person wants.
  3. Work together to craft a win-win solution — something that gets both parties as close to what they need as possible.

Sounds pretty good, right? So what’s missing?

  • Often you’re not dealing directly with the client or joint venture principal, but with someone else in the organization or with its attorneys.
  • In the end, at the moment of truth, you’re stuck trying to prove to them why you need the provisions to read the way you or your attorney has drafted them.

Any strategy that has you pleading with others to see things your way is a recipe for failure. All it does is force them to dig in and focus more intently on making sure the agreement serves and protects their own interests.

No solution is inherently good or bad. It’s all in how it’s perceived by the parties. And if either party doesn’t think it’s good for him or her, then it’s not going to fly, no matter how good you think it is or how proud you are of all the hard work you did coming up with it, or how eager you are to “get on with the work.”

So what do you do when you have a draft in which the main points are uncontested, but the discussion is still contentious and focused on other tangential issues?

Reset the dialogue back to the one or two points that brought you together, and on which there is general agreement.

Here’s an example of such a communication:

Hi, John:

As you know, we’ve been working together on the language for our agreement. I think this draft gets us both what we need to move ahead on the exciting plans we’ve got for moving forward together.

My main concerns were that we: 1) use Mary’s people to do the design work, and 2) have a  reasonable cap on the monthly running expenses. I believe yours were that we: 1)use your folks for acceptance testing, and 2) get user input via an advisory working group that will be part of the design team. All of these elements are in the current draft.

From our discussions, it seemed like everything else was not essential to a meaningful agreement. If I’ve missed something, please let me know.

I want to get started, and I know you do too. I’m sure we can resolve other issues as and when they arise.


That’s it. Keep it brief and concise. Then wait for a response. And be prepared to compromise on issues that are not really significant to your interests.