The Litigator
The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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Table Manners – Recipes for Negotiators: #2 The Mandate

Table Manners - Recipes for NegotiatorsAnother integral aspect of the negotiating process is the .  Legal counsel as well as other individuals, often represent clients either as an individual or in a larger groups.  Your , or lack of , can be crucial to your success, failure or to prolonging the negotiating process indefinitely.

There are several aspects of the mandate that deserve careful consideration.  Let me address five:

I     Oral/Written Mandate:

I have seen over the years many mandates given to individuals and groups of individuals through an oral briefing. In addition, I have seen written mandates as well. The former usually comes after an extended conversation with the principles involved for a particular . Unfortunately, people make a lot of assumptions in terms of what has been communicated to the person who is actually doing the negotiations. Hence, there is real danger in accepting an oral mandate that may have shortfalls.  Therefore, I advise clients and others to be certain that the mandate is clear, specific and preferably in writing. One way to facilitate an oral mandate is to follow it up with an e-mail.  In that e-mail you should indicate what your understanding of that mandate is going forward, and for the recipient to e-mail you back confirming your understanding and/or providing a further explanation.

Personally, I prefer a written mandate which I often write myself. For those of us who are lawyers, we often try to do this under the auspices of a retainer letter. However, I have seen instances where retainers have forgotten to spell out the parameters of the authority given to the person doing the negotiation as well as timeframe and how to deal with contingencies.  Any time you are in a principle/agency situation there are all sorts of opportunities to be mischievous. When you are an agent acting on behalf of a principal for the purposes of negotiations, it is very wise to have your principals spell out their specific goals for the negotiations, the timeframe and the authority that you will have to go forward. If in any way those instructions are somewhat vague, it is incumbent upon you to seek clarification and get sign-off. Again, the utilization of e-mail or text is an excellent way to seek that clarification so that there is no uncertainty as it relates to the mandate going forward.

II      Rationale:

You need to ask yourself, do you understand the rationale of the mandate that has been given to you? If you are an executive and you have received directions from your superior you need to have clarification as to the rational of the mandate. As a result, you are more likely going to need from that superior, a set of specific goals, including a timeframe.

To become an effective negotiator, you must understand where you want to go and why you want to go there. This means committing yourself to specific justifiable goals. Setting goals helps to trigger psychological motivators. Sports psychologists, sales people and educators confirm that setting specific goals motivates people, and helps to focus their attention much more effectively.

It is important to know your bottom line and to keep it as well as your goals in play throughout the negotiation process. If you enter a negotiation with an attitude that suggests “you will do the best you can, or you will just go in and see what you can get” – this is very dangerous. The latter suggests that you do not want to take a chance on failing in this particular negotiation. Therefore, it is important to have clear identifiable goals as a part of your rationale going into the negotiations. This rationale must be given to you by the principal or your superior in question. I have often asked clients, whether they be legal or business persons, to spell out the mandate, explain its rationale, and the impact that it has on the organization going forward. These questions cannot be left to idle speculation. Have your principal outline his or her rationale and what is acceptable and what is not acceptable, as it relates to the negotiations. This offers you an excellent opportunity to practice your probing skills.

III      Timeframe:

Try and get from your superiors a timeframe to conclude your negotiations. If you are the boss give consideration to the timeframe, from the minimum and maximum perspective.  Conversely, assess the timeframe of the other side. In setting out the timeframe be very prudent that you give yourselves sufficient time depending upon what is at stake. It is important for the negotiator to manage expectations prudently with the following individuals:  team members, your superiors and the other side. If you     give consideration to the timing of your negotiations, you will reflect more seriously and understand that the negotiation is much more strategic then you anticipated. Issues such as the availability of people for both sides, the clarification of various issues and subset issues, the need to get additional information, and the possibility of visiting the site that may be in question, are all examples that impact on the negotiating process and can take considerable amounts of time. All the while it is important to keep in mind that expectations must be managed prudently and effectively in order to meet the demands and needs of your client.

IV      Authority:

I learned very early in my career the significance of authority in the negotiating process. Back in the early 1970s, I had the pleasure of running a co-op, Dial-A-Student Co-op Services Limited. We were attempting to purchase 3 surplus trucks from the Department of National Defence. We began our discussions with a senior official in Nova Scotia. After days upon days of different meetings, the postponement of meetings, the exchange of information and the verification that Dial-A-Student Co-op Services Limited had the money to purchase the trucks, our Nova Scotia official finally admitted he had no authority to do the deal. As a result of this delay, we nearly lost the opportunity to bid and to secure these three surplus trucks. It necessitated a group of individuals from our side having to fly to Newfoundland, incur additional expenses and use up more time. The lesson learned from this experience is that it is much more advantageous to raise the issue of authority at the beginning of your negotiations as opposed to waiting to mid-term or at the end of your session. In raising the issue of authority early on in the process it will inevitably save money, save time and clears the air of any tensions that could possibly arise as a result of not having the authority to negotiate.

Many individuals are reluctant to raise the issue of authority for fear that the other side might become annoyed.  I, frankly, think there is a way in which you can raise this issue and make the other person feel comfortable. For instance, you might even say the following: “I certainly have the authority to be here today and resolve this particular dispute and I was hoping that you could give me the same undertaking”. There are many lawyers who don’t wish to give undertakings. The mere fact that you have raised this question will force them to provide a fulsome answer.

V      The Negotiating Team:

It is worth noting that process as well as substance are important aspects of the negotiation process. Any time that you find yourself in a situation where there are numerous individuals who are on a team for the purposes of negotiating a major contract, a major initiative or indeed a major policy, take careful note of their interests. When I am in a major negotiation representing various stakeholders, I attempt to have a member representing each stakeholder come to a meeting to discuss our approach and priorities for the negotiations.

For instance, if there are 10 different stakeholders, I would have one representative from each of those stakeholders in a room to formulate our negotiation plan.  In addition, I might also have the appropriate legal counsel, financial, marketing and other stakeholders of the same organization or of different organizations privy to the general session on the negotiation strategy. This does not mean that this big group will be the actual ones who will sit at the table to do the negotiations. It is important however, for the group that will actually be sitting at the table to hear from all of the different stakeholders as to what they deem to be important and not as important.

When I am representing a major company who is trying to negotiate a particular contract that would involve a large sum of money I invariably do the following: I make certain that all of the various stakeholders from finance, human resources, procurement, technology, President’s office, sales and marketing are in attendance to discuss the strategy. I then use flip charts and I ask each and everyone who is in the room what they deem to be important for the purposes of this negotiation. If there are 10 people in the room, you’re likely to get 10 to 15 different important principles for the purposes of the negotiation. Thereafter, I have the same individuals rank the importance of those principles. One to three – very very important, 3 to 5 – important, 5 to 7 if we can get it – great and from 7 to 10 – not important at all. The mere fact of having all of your stakeholders in the room at the same time discussing the priorities of the negotiation is of paramount importance for a successful outcome. On the several occasions that I have gone through this exercise, I have had to do a second and a third round of prioritizing the goals for the purposes of our negotiations. For instance, HR may have a different perspective on the negotiation from that of IT, or procurement. Nevertheless, they were at the table, they had an opportunity to participate, they ranked what is important and a consensus was reached on the goals for the negotiations. Lawyers rarely do this, but I can assure you whether it is on a multi-million dollar insurance claim, a major environmental concern or IT procurement, this kind of approach focuses your people on the important goals that are necessary for your negotiation.

This kind of a process also has the added advantage of looking after the internal politics within your organization. Why? Everyone has been given the opportunity to offer their perspective on what is important for the purposes of negotiation. Thereafter, you can always go back and say – “Hey, but, so and so agreed with this particular priority”. This kind of internal debate will result in clear goals and gives the actual negotiations clear direction.

See other articles in the series “Table Manners – Recipes for Negotiators

Seminars for Private/Public/Non-Profit entities are available by contacting:

David C. Dingwall, P.C., Q.C.,
Counsel, Affleck Greene McMurtry LLP
E-mail address:  ddingwall@agmlawyers.com

Distinguished Visiting Professor
Ted Rogers School of Management
Ryerson University and Host of the Ryerson Negotiation Project

The Hon. David C. Dingwall, P.C., Q.C., ICD.D
Affleck Greene McMurtry LLP

The Hon. David C. Dingwall, P.C., Q.C., ICD.D

The Hon. David Dingwall is a former Counsel of Affleck Greene McMurtry LLP

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