Ten Rules For Negotiating Business Transactions
04th Feb 2010 , 11:02 PM (0) comments
I believe the most effective negotiating techniques for business transactions are slightly different than negotiating tactics used in other contexts. Because business negotiations often involve multiple issues and transactions in which the negotiating parties will have a business relationship following the "closing," the negotiator must follow some basic rules to achieve the best result for himself or herself, while leaving the other party equally satisfied with the results of the negotiations. In other words, in business negotiations, a "win-win" situation is usually a far better result for all parties involved than a "win-lose" situation. This is especially true in the negotiation of a joint venture where the parties will be collaborating in a business endeavor following negotiations. It is also true, for example, in the sale of a business where the buyer will depend on the seller for consulting advice, introductions to loyal customers and continuing support in the community or industry in which the business operates. An embittered seller can do a great deal of harm to the buyer of a business following acrimonious negotiations. With these thoughts in mind, I generally recommend the following to clients who ask how to approach the negotiation of a business transaction:
- Be Prepared.
The best prepared party generally has the upper hand in negotiations.
Being prepared includes (a) clearly developed objectives so that you
will know what is important and what can be compromised; (b) learning
everything you can about your "adversary" and trying to anticipate what
your adversary's objectives will be, the reasons for those objectives,
and the anticipated means of achieving them; and (c) anticipating areas
of disagreement and designing alternative solutions to resolve areas of
disagreement. I often advise clients to carry on initial negotiations
without an attorney or accountant present, but well-prepared clients
will always have reviewed the elements outlined above with their
professional advisors in order to avoid being blind-sided by an
unanticipated tax or legal consequence.
- Negotiate With the Decision-maker(s).
Knowing who will be making the decisions is critical in negotiations.
Most of us have witnessed negotiations in which tremendous progress is
made, only to learn at the end of the day that the party across the
table had no authority and was required to report back to management.
Sometimes this is unavoidable, but it is often used as a negotiating
tactic, and if recognized it in advance, should generally be avoided.
- Get All Issues On the Table Before Compromising.
In order to follow your strategy and achieve your objectives, you must
know what all of the issues are before compromising on any one of them.
It is very easy for the other party to raise seemingly small issues,
resolving them one by one on seemingly mutually satisfactory terms,
until you suddenly realize that you have been painted into a corner
without realizing what was happening. If all of the issues are first
put on the table, there is a greater opportunity to prioritize needs
and design mutually satisfactory solutions to issues. Furthermore, you
are less likely to give the impression that you need the deal more than
the other party (which is the one thing you should never do in
negotiations).
- Be Truthful. It may come as a
surprise to learn that there is no substitute for truthfulness and
honesty in negotiating business transactions. Bending the truth,
providing inaccurate information or even outright lying is sure to
backfire sooner or later. If the other party loses confidence in your
credibility during negotiations the deal will not occur. If the other
party experiences surprises following the closing of a transaction in
which inaccurate information was tendered, costly legal entanglements
will surely follow. On the other hand, truth and honesty, even when it
hurts, will win the trust and confidence of the other party (both
during and after negotiations) and will give you more credibility when
negotiating serious issues.
Listen and Look Carefully. Listen carefully to everything the other party has to say. Often one word will give away the other party's hidden agenda in a transaction. Sometimes a facial expression will reveal the other party's true position on a point. I have on more than one occasion had the privilege and good humor of observing the other party's attorney state that his client "would never agree to . . ." while his client's expression was clearly suggestive of the contrary. Generally speaking, the more you can get the other party to talk, the more you will learn (in a subtle way) about the other party's true needs and intentions. - Treat the Other Party With Respect.
Always treat the other party with respect, even if you have concluded
it is undeserved. If the other party senses hostility, discussions will
become strained and highly structured and the opportunity to gain
critical information from comfortable discussions will be lost. You
will be far more effective holding your true feelings about the other
party close to your chest and you will not burn any bridges in the
process.
- Be Sure Each Party Understands the Other.
If the parties have reached an impasse, it is important to review the
nature of the impasse while at the negotiating table so that all
concerned may be satisfied that the impasse is not by virtue of a
misunderstanding. I recall one occasion in which the other party's
attorney and I were convinced that there was no middle ground on a
particularly important issue. Everyone was frustrated and preparing to
leave the room. I suggested that because of the importance of the
matter, we should review the nature of the dispute to be sure there
were no misunderstandings. As the other attorney and I described our
impression of the impasse, my client announced that he had apparently
misunderstood our discussion of his rights under an arrangement
suggested by the other attorney, and that if his enlightened
understanding was correct, he was prepared to agree to the other
party's terms. The deal was saved. I suspect many deals are lost
through misunderstandings.
- Understand Who Needs the Deal the Most.
I mentioned this above, but it is so important that it bears repeating.
Experience tells me that the party who needs the deal the most will
give and give and give again. The other party need give little. If you
determine the other party needs the deal the most, enjoy the ride. If
you need the deal the most, don't let the other party know. This is why
rule number 3 above is so important if you are the party who needs the
deal the most. Oftentimes the first party to compromise on an important
point is the one who needs the deal the most, but the rule is fraught
with so many exceptions that I would never adopt it as an ironclad
negotiating principle.
- Be Prepared to Compromise.
This is why having clear objectives and a strategy is all important. In
business transactions a spirit of compromise often leads to
advantageous business combinations and opportunities. The key is to
know where you can compromise without sacrificing your overall strategy
and objectives. Bargaining points are seldom equally important to all
parties in a transaction. The key is to sort them out so that each
party obtains the benefit its most important issues.
- Be Unemotional. One should generally be patient and unemotional in negotiations (although I will admit that there are times when one can advantage through outward impatience and emotion). Nevertheless, the point I am trying to get across here is that one should always be prepared to walk calmly away from the table if his or her objectives cannot be met. One must avoid getting caught up in the excitement of completing a deal for the mere sake of completing it even though it's not workable. On more than one occasion I have seen a party pay too much for a business, only to underachieve earnings expectations or default on bank financing later on. Oftentimes the other party will ultimately compromise on an important point once it learns that it was in fact a "deal killer" for the party that left the table. Remember, no deal is better than a bad deal, so don't be disheartened if another party steps up to the plate and completes a transaction with the party with which you were unsuccessfully negotiating.
By: George F. Eaton II, Esq. is a partner with Rudman & Winchell. He concentrates his practice in the areas of business planning, corporate and securities law.
