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I find it helpful to write out the agreement I want before I go into the negotiations. I don't show it to the other side, but I find it helpful to compare it to the agreement that we eventually reach, so that I can see how well I did. Sometimes it's easy to get excited because the other side is making concessions that you didn't expect to get. Then your enthusiasm carries you forward and you agree to what you feel is a fantastic deal. It may be a good deal, but unless you have clearly established your criteria up front, it may not be the deal that you hoped to get.
Power Negotiators know that you should always try to be the one that writes the contract. When the verbal negotiations are over, it's time for someone to put everything in writing, and the person who gets to put it in writing has definite power in the negotiations. There are bound to be little details that you didn't think of when you were verbally negotiating that need to be specified in the written contract.
If you're the one who gets to write the contract, you can write those to your favor. Then it's up to the other person to negotiate them out when it comes to signing the contract. So, try to be the one who writes the contract.
I'll say to the other people, "Look, we need to put this down in writing. But let's not go to a lot of expense on this. I have an attorney on retainer, it won't cost either one of us anything for me to have my attorney do it." Even if I had to pay the attorney to do it, I still think I'd be better off to be the one who is writing the contract.
Read the Contract Every Time
In this age of computer-generated contracts, it's a sad fact that you have to reread a contract every time it comes across your desk.
In the old days, when contracts were typewritten, both sides would go through it and write in any changes, and then each negotiator would initial the change. You could glance through the contract and quickly review any change that you had made or to which you had agreed. Nowadays with computer generated contracts we're more likely to go back to the computer, make the change, and print out a new contract.
Here's the danger. You may have refused to sign a clause in a contract. The other side agrees to change it and says they'll send you a corrected contract for your signature. When it comes across your desk, you're busy, so you quickly review it to see that they made the change you wanted and then turn to the back page and sign it. Unfortunately, because you didn't take the time to reread the entire contract, you didn't realize that they had also changed something else. Perhaps it was something blatant such as changing "F.O.B. factory" to "F.O.B. job site." Or it may be such a minor change in wording that you don't discover it until years later when something goes wrong, and you need the contract to enforce some action. By then, you may not even remember what you agreed to, and you can only assume that because you signed it you must have agreed to it.
Yes, I agree with you-you have a wonderful case for a lawsuit that the other side defrauded you-but why expose yourself to that kind of trouble? In this age of computer-generated contracts, you should read the contract all the way through, every time it comes across your desk for signature.
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Copyright © 2003 Roger Dawson
Copyright © 2003, The Negotiator Magazine