This contract tip is about one of the realities about negotiating contracts. That sometimes our counterparties declares that something is non-negotiable.
Sometimes when a counterparty says this statement, it is true. The provision is one that they need for regulatory reasons. Or they may have all the leverage and my client has none. No amount of explaining or cajoling is going to make a difference. In those cases, I might prod a bit but then usually move on. If it is important to me, I’ll bring it back up at the end when I have the final changes that I try to get to close the deal.
But not all non-negotiable statements are made in that context. Some are made by people who embrace what I call the “be a Jerk” style of negotiating.
Here’s how I approach these situations. I ask a series of questions to start a discussion of why. I keep my tone calm and curious throughout. I say things like “So why is this provision off-limits and not the other ones?” and “Help me understand why we cannot even discuss it.” I try to force a conversation about risk and the parties' relationship. I keep asking questions, prodding for a rational discussion of why, until I see some softening and backpedaling. Once I do, we usually can move to a real conversation about it. My goal is to get the other side to consider our changes instead of just slamming the door.
I’ve found the most critical part of this process is to not meet that statement with anger or emotion. Ask questions that pull out the inconsistency of that mindset with the rest of the relationship.
How do you deal with the non-negotiable declarations?
