Thursday, 27 March 2014

Negotiation: Getting Ambushed and Railroaded

A real case:

Agency accepts the rates, hands down the test (a.k.a. free sample), sends the draft contract. The contract is 7 pages long and contains a lot of legalese. The provisions are markedly detailed and restrictive and some not quite fitting the situation of a freelance teleworker completing translation assignments for his project manager. There is a lot about compliance with the agency's applicable laws, and the way the translator is referred to as a 'Consultant' rings a bell, suggesting it's meant to invoke some specific legal consequences that are not immediately obvious.
Translator submits a reasonable — and reasoned — list of proposed changes, explaining the whys and wherefores of them, as well as explaining why there is a problem and supporting it with some concrete, good arguments. There is hoping for an understanding.
Agency business staff says the list is extensive (mere quantity, nothing more) even before forwarding it to the executive or legal. Also they understand if this will make collaboration impossible etc., so essentially no hard feelings if you can't accept our contract.
Translator doesn't want to lose the deal, reduces the list of changes. PM/recruiter has less material to bother exec/legal with — effectively cutting down the number of problems without even addressing their substance. How ruthlessly effective! And the agency may even be very conscious of the small win achieved thereby, as it shows the translator doesn't want to lose the deal and may be prodded around. An atmosphere of some urgency further helped the railroading, while no real haste had actually been necessary at that stage since not even any real job was waiting in the background.
The morale is: Don't get ambushed!

He wins who (looks like he) has less to lose

This ties into the BATNA concept: Best Alternative to a Negotiated Agreement.

There is an old adage about romantic relationships to the effect that the party who cares less controls the relationship. Both in romance and in business the same is true of the party who has less to lose (e.g. the battered spouse who wouldn't be able to afford the bills for living alone).

The power of perception in railroading

However, it isn't even necessary that the railroaded party (the 'railee') really have more to lose than the railroading party (the 'railor'). Perception will often do just as well, or almost, as facts. And when you get ambushed, you have less time to look around, watch, see, listen and hear, so your perception can misguide you. You can become protective or apprehensive of the wrong things, misestimate their nature or weight. The heightened rhythm of the situation may be used against you.

Old and worn but still working just as fine: artificial rush

And the cheapest shot in negotiation — perhaps only preceded by the, '(...) or no deal,' threat — is an artificial shortage of time for decision. The silly here and now. Like there won't be a somewhere else or a tomorrow.

Not to be confused with legitimate time-limited opportunities (which exist)

Well, yes, short windows of unique opportunity do exist. One does need to learn to identify such opportunities that need to be seized quickly or they will pass. For example, when a not so established translator with far less than a full calendar receives an inquiry about a valuable job that comes with some concessions or perhaps is somewhat more complex on the technical or logistical (organisational) side. Alternatively, there's a fast-paced recruitment procedure with a somewhat onerous sample-testing and referral-checking admission process, but there is also a nagging suspicion of some serious workload waiting to be claimed by those who make the effort.

Take it with a pinch of salt, mostly

Much of the time, however, tomorrow will be just like today. And there'll be more potential clients just like the one talking to you, or better. Much of the time the golden opportunities will turn out to have been cheep pewter with a splash of paint over the surface. Or just a favourable light.

Bottom line is: Don't allow them to dictate the terms of your negotiation.

The longer version is: Don't negotiate on their terms. It's not just about a potential one-sided outcome. A one-sided negotiation process leads to one-sided negotiation outcomes (sort of like biased decisions by a trial judge may lead to biased verdicts).

Don't concede all of the territory just because it's just negotiation and not yet the deal itself

As a negotiating partner you have a right to shape the process as well as they do — and co-shape, not only accept or refuse — the outcome of it. Shake up their designed rules of the game just so they don't get to be railroading you towards some conclusions which you don't want to be making and impressions you don't want to be forming. Make them need to adapt too.

When neither of you have the advantage the field is already level

The field is more level when both of you need to think and adapt and neither of you has the benefit of knowing what will likely follow (for example due to having designed or analysed the scenario beforehand). Somebody who has planned ahead is an advantaged position: playing totally on his own turf and even on his own schedule and according to his own dictated rules of engagement. So deny him that.

You don't even need to have it your way, it already substantially levels the field when the other party doesn't get to have any special advantage, e.g. one resulting from having planned the negotiation.

If this sounds too complex, just learn not to be influenced too easily by what your negotiating partners say or how they say it. Question your instinctive or intuitive or face-value impressions and interpretations — they may be legitimate signs of something good or bad, but they may also be something the other side wants you to be thinking.

And above all don't be steered into thinking there is some special urgency when there isn't really any. Like I said before, artificial urgency is something which forces you into bad decisions because it artificially cuts your deliberation time short, so your decision is based on less thinking, less clarity, a less than full picture of what the deal expects of you.

Don't take it for granted that it is necessarily true what they say about your perspectives or their own, or about the situation in the market in general, even if they are experts and you aren't. I'm not saying they're lying (although lying happens too), but there's a chance they're just simply talking from their own perspective and perhaps even pushing it on you, or being delusional, or going through a PR flow chart somebody designed for them.

Claim your deliberation time. It's not your fault they waited until the last moment with approaching you. It's not your fault their contract is 7- or 10-page long. It's not your fault they hired a lawyer who can't write in normal understandable language. Just because they even might have an urgent situation for real does not mean you owe it to them to accept their terms.

If they won't accept reasonable, standard terms, then they are rejecting your help. You are not denying them.

Learn to separate helping people from allowing them to dictate the terms of your help, and certainly don't allow them to guilt-trip you into thinking you're an unhelpful person if you don't cave in to their demands and sign something which gives them an unwarranted advantage (or outright dominance in your relationship).

The above is also true when you have already done a job for someone who now wants a written contract. You owe it to that client to own up to your work, confirm the receipt of your fee, give reasonable terms if no specific had been discussed before, but you certainly don't owe it to your client to sign whatever the client desires. If the client thinks you owe it because of having accepted and performed the job, then the client has it perfectly backwards. In reality, it was the client who accepted the default law and possibly even your own Terms of Service (if they are distinct and accessible enough, e.g. linked in your e-mail signature) by placing the job with you. (As opposed to you becoming the client's property.)


You are ambushed when the other party chooses the time, the place, the method and the extent you'll be negotiating. In short: if the negotiation is planned for, designed, by the other party. The advantage consists in being prepared and knowing what would follow. Or just having thought about the possible scenarios before and knowing how to react to each approximate scenario, even if it won't be carried out to the letter. One of the cheapest but still most effective negotiation tricks — and a large part of a successful ambush — is cutting your deliberation time short and railroading you into a quick decision which may not be in your best interests (especially when it agrees with what the other party wants of you, and especially the exact terms of getting it).

You deny the advantage by claiming your thinking time and by taking an active part in the negotiation and in shaping the negotiation process. You can also deny it by upsetting any predictable scenarios the other party may have designed or analysed in advance before the negotiation even started, down to such simple things as taking a different seat from the one offered to you when you meet face-to-face.

If you don't have a plan, you're already levelling the field by making it so that they don't effectively have a plan either (because their plan is no longer working or relevant).

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