When you work with contracts, you are are trained to find the path to a better result. So much of our work is reframing, redirecting, and making the deal fit our desired outcome. But sometimes you face problems that require a decision. You have bad choices in front of you and your job in those moments is to make the call.
I read a version of this in this recent post by Jonathan Pollard, a trial lawyer in high-stakes litigation. The subject had nothing to do with contracts, but there was one point that resonated with me.
He made the case that not everything is a negotiation. Sometimes the situation is a simple risk decision, and the job is to pick among options you do not want.
This shows up all over our work: a negotiation that will not move, an operational problem with no clean fix, or a tense standoff in a negotiation or with a colleague. Many of us instinctively try to figure out our leverage. We start to reframe the issue so we can angle for better outcome. But the truth is that sometimes there is nothing to negotiate.
Sometimes what we face is a simple this-or-that risk decision.
Part of the problem is the biases we all carry. We are trained to find a way through, so when a problem shows up, we look for the workaround. Hand a negotiator a problem, and it starts to look to us like a nail, ready for our negotiating hammer. But not every problem is like that. Sometimes there is no finagling. That’s when our judgment takes over and we have to deal with the situation as it is and make the call.
Now, making that call is its own skill, one that is rarely taught. It requires you weigh the risk you face against the risk you would avert. You count the cost of taking each path, including the downtime, the money, the distraction, and lost goodwill. Then you choose between two imperfect options, A or B. And perhaps the hardest part is that you now have to own that choice, no matter how things play out. Our task is not about winning the point but more about choosing the risk with which you’d rather live.
In the end, we have to remember that we are here to enable the business. That means carrying risk, in our contracts and in the work itself. We can’t lose sight of the bigger picture as we negotiate through each clause and deal with each situation. And yes, some of those problems cannot be negotiated away.
This is the post by Jonathan Pollard that triggered my thoughts behind this article: When the Chief Compliance Officer Becomes the Whistleblower.”
