Everything You Wanted To Know About Negotiating Contracts But Were Afraid To Ask – Part 2

Ten Negotiation Tactics

1. Good Cop, Bad Cop: Effective when you have a partner, such as a colleague from the IT department (if you are negotiating an IT contract, obvs). It's important to agree on how each person will approach this. Both of you need to be on the same page, both literally and metaphorically for this to be effective. It's particularly frustrating if "bad cop" deviates from the plan and starts conceding points where you wanted to stand firm.
2. I Can't Authorise That: Useful for temporarily setting aside contentious issues, allowing you time to devise a solution. However, being on the receiving end can delay proceedings. A deal summary is invaluable here; it helps clarify critical points with your team beforehand. You can insist on halting negotiations until the authorisation is obtained or ensure that the person with decision-making power is present during discussions to avoid unnecessary holdups.
3. Take It or Leave It: Sometimes it works to stop pointless haggling or where there are time constraints, etc. If you find yourself on the wrong end of this, ask for some time to think—so you can make an informed decision or prepare a counter-offer.
4. Outright Threats: If negotiations get heated or the stakes get raised too high, you might find that people start making threats to eg withdraw something previously agreed upon or that if you don’t agree to what they want, it may impact adversely on some other aspect of your relationship or some other contract you may wish to enter in the future. If this is going to happen it is usually at or near the end of a negotiation. "I Can't Authorise That" can be your friend here to buy some time to let the other side cool down.
5. Highball/Lowball: You intentionally make a much higher or lower initial offer than you expect to agree upon. It sets the stage for negotiations, aiming to shift the other party’s expectations. In most cases, this is just part of the ritual dance of negotiating, and both parties have a pretty good idea of what the final terms of the contract will look like.
6. Silence Is Golden: After stating your point, remain silent. This can create an awkward pause that pressures the other party to break the silence, potentially leading them to offer concessions or lower their demands without any prompting from you. This technique is particularly effective after making a firm offer as it shifts the responsibility to respond back to the other side. Remember, if you're on the receiving end, resist the urge to fill the silence with unnecessary concessions. Instead, acknowledge the point made and take your time to think of an appropriate response. If the silence drags on too long, suggest parking the issue temporarily so you can press on with the rest of the negotiations .
7. There’s a Deadline: This tactic creates urgency, encouraging the other side to decide quickly. A deadline appears more reasonable when backed by a believable reason, such as the need to finalise the deal by eg the end of the tax year or because budget funds need to be allocated by a certain date. When faced with a deadline, assess its authenticity and practicality. If it's unrealistic, consider negotiating an extension, or if necessary, be prepared to walk away.
8. Nibbling, AKA “One Last Thing”: Nibbling is a bit sneaky, like having the last word. After the terms have been agreed, one party might seek additional small concessions, eroding, to some extent, what was initially agreed upon. This strategy leverages the other party's "relief" at concluding negotiations, to extract further value without fully reopening discussions. When facing nibbling, remain alert to ensure any further concessions are genuinely necessary and try to avoid agreeing to them because the negotiation has caused you to lose the will to live. I do sometimes tend to include a few terms I can happily concede, if necessary, when faced with an attempted "nibble" and they can also be handy to sweeten the deal when splitting difference. Richard Branson famously employed an extreme form of this tactic to secure critical concessions during Virgin's early days, threatening to abandon the deal if his demands weren't met.
9. Splitting the Difference: Some people say you should never do this, but I tend to disagree. It looks fair and often is fair. However, it is sometimes a result of negotiating fatigue, and what looks like splitting the difference may not be evenly split.
10. The Feather Ruffle, AKA “You’ve Got Me Under Your Skin”: Finally, the opposing side may try to rile you in various ways. And of course, you too may feel it appropriate to add a soup?on of realpolitik to your negotiating stance—now is the time for your best poker face. Preparation is key here. In an ideal world, you should try to leave your personal feelings and emotions at the door and take negotiations for what they mostly are: performances. Here is my rundown on some of the best performative negotiation tactics:

Some other tactics:

• “I’m not sure if this is a stupid question”—when it is not.
• “I’m not an expert, but...” only to be tried if you are an expert and can give everyone present a succinct (correct) summary.
• Boring people to death - especially useful for boilerplate negotiations - by having a detailed knowledge of the relevant law. For instance, you could quote from eg a judgment of Miggins LJ in a case decided when Queen Victoria was on the throne. This kind of deep dive can need a good bit of homework, or refreshing your memory, especially if the law might have changed since you last considered the point because you will look, I hesitate to say "remarkably stupid" if the other side's lawyer corrects you - and is especially unfortunate if your client is in the room with you
• Being satirically nice AKA “nicing the other side to death.” Or non-satirically nice - although I'm not sure if this actually counts as a negotiating tactic
• Doing obvious eyerolls.
• Sighing.
• Wincing.
• Performative shouting—hopefully, this is becoming a thing of the past as progressive lawyers understand how to negotiate commercially and amicably.

What would you add?

When it comes to negotiating

Negotiation is all about finding the right mix of strategy and a bit of psychological play, from keeping quiet at just the right moment to sneaking in that last little ask, it’s about making sure you’re always a step ahead. And, of course, getting the deal done in a timely, efficient and pleasant (hopefully) way, so that the parties can get on with whatever the subject matter of the contract might be

As a seasoned commercial and IP lawyer with extensive experience in high-stakes negotiations, I can help your business or legal team when it comes to complex negotiation scenarios. Contact me on [email protected] if I can help.

?

?

?

?