If the parties to a potential business transaction can’t initially agree to the terms of the transaction, a negotiated deal still may be within reach. I work with my clients to determine the terms they must have, and then ask the other party’s attorney what terms in the draft agreement they disagree with. This is known as integrative negotiation. Listening to both my client and the other party is key; frequently, if the other party’s attorney says, “We can’t live with Paragraph 12,” and I ask what terms in Paragraph 12 they can’t live with, it turns out that only one part of Paragraph 12 is objectionable and my client may be willing to eliminate that part of Paragraph 12.
That is how negotiating business transactions becomes a trade-off of specific terms that are less important to my client in order to keep what is important. Helping my clients to identify and articulate their end goal helps me as a negotiator. Perhaps in some cases, price or percentage markup may not be as important to my client as getting the job and developing a relationship with another business, owner, or general contractor.
In one case, one client—a single-member LLC—wanted to bring in another member who would contribute cash, but my client did not want to give up control. In this case, I created two classes of membership in the LLC: one class with voting rights and one class without voting rights, but both classes with rights to distributions. Listening to what each party wants, then using integrative negotiation to determine options and alternatives can often conclude a deal.
Sometimes there cannot be a meeting of the minds even with integrative negotiation; however, listening to the parties, offering creative options, presenting alternatives, and understanding my client’s end goal can frequently help to achieve an agreement between the parties.
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