Litigation is time-consuming, expensive, and risky. In the United States of America, over 97% of all civil and criminal disputes are resolved before the first day of trial. When people allude to the crowded court system, it is over-crowded with less than 3% of the legal actions that are commenced. As a result, negotiation becomes the important component to resolve disputes. In order to position yourself to achieve the best solution, take a preventative approach rather than curative.
- Confirming letters. Following preliminary talks or lengthy negotiations, write down the terms and send it to the other person or side. Simple language such as “please allow this letter to confirm our discussions this morning…” This confirms both parties have mutually reached an agreement and increases the likelihood that the agreement will stick.
- Stay on task. All too often negotiations fail because one or both of the parties get sidetracked by personal issues unrelated to the deal at hand. Successful negotiators focus on solving the problem, which is: How can we conclude an agreement that respects the needs of both parties? Obsessing over the other negotiator’s personality, or over issues that are not directly pertinent to making a deal, can sabotage a negotiation. If someone is rude or difficult to deal with, try to understand their behavior and don’t take it personally.
- Get it in writing. Signatures legally bind both parties whether the contract was fully read or not. Many unscrupulous vendors take advantage of this by including harsh and oftentimes, one-sided language in agreements and then ask for a signature. If you believe that you may not understand an agreement or have fully incorporated all important provisions, even after you have read the agreement, then it would be helpful to seek legal advice to ultimately save money and avoid problems. The process of writing down an agreement ensures everyone will articulate and then communicate regarding that which has been written
- Beware of the internet. Communication and confirmation in writing is important. With that said, note that with the abundance of email and social media, a quick response lives forever in cyberspace and may be used against you as a reference during a legal dispute.
- When an Attorney is a good idea. Be aware that when the other side has an attorney. The attorney may appear to be fair and reasonable yet it is his or her duty to advocate for their client. It is important to seek your own counsel to consider your rights, responsibilities, and options before engaging in any discussion.
- Keep your records. We suggest that you keep your records for a long time. Issues arise when records are not kept. Although you know the truth, your attorney is forced to utter the words “We do not have any of the documents, they were thrown away years ago.”
- Gather Information. As you approach new deals, gather as much pertinent information about the parties, terms, customary pricing, etc., prior to your negotiation. What are the needs of the buyer and seller? What pressures do they feel? What options do they have? Doing your homework is vital to successful negotiation. You can’t make accurate decisions without understanding the other side’s situation.
- Tell you attorney the whole story. It is tempting to tell your attorney one side of the story without understanding the opposite perspective. Many people understandably lose their objectivity. Your attorney will be better prepared to represent your interests if he or she knows all angles of the deal or the case. Attorney-client confidentiality privilege will protect your communication.
- Interview your attorney. Any attorney can find an answer with enough time and money. An excellent attorney will be organized and efficient. Ask questions to ensure your attorney has the responsiveness, communication, and efficiency that comports with your philosophy.
- Be aware of your BATNA. Have a firm sense of your best alternative to a negotiated agreement (BATNA). Do not let your opponent shake your resolve. Understanding options and a zone of potential agreement will provide the parameters for your negotiation and help manage emotions throughout a negotiation.
