Contract Negotiation: 11 Strategies

Common negotiation tactics for negotiating business agreements.

By Richard Stim , Attorney

Usually before you reach a business agreement, you'll need to negotiate. That is, sit down at the proverbial table -- with the other people or companies that are "parties" to the agreement -- and hammer out the details of the contract. If you're new at the game, or need a refresher, it's a good idea to review some of the tried-and-true negotiation strategies.

There have been plenty of books written about negotiating tactics. Many tips are silly. For example, suggesting that you provide caffeinated drinks and food with MSG (without partaking yourself) and then waiting for your negotiation partners to give away the store in a drug-induced daze. Other negotiation tactics are devious and have the potential to backfire -- for example, pretending to have another suitor in the wings, or insisting on negotiating items you don't really care about, so you can pretend to "give in" on those and get all of the things you really want.

Below we've summarized 11 of the more common and popular contract negotiation tactics. Some of these may seem like commonsense (even obvious) strategies, but they're proven to work. (For more information on the negotiation process, check out Nolo's article Contract Negotiation Basics.)

1. Break the negotiation into parts. Some negotiations disintegrate because the parties take an "all or nothing" approach, in which the other party must agree to all of their terms in order to move forward. A good way past this type of roadblock is to break the negotiations into sections ("compartmentalize") and reach an agreement on each part separately. This makes it feel as if you are reaching a series of solutions -- and making progress -- rather than battling one big war.

2. The "I'm only asking for what's fair" approach. This approach emphasizes that one party's requests are simply in line with industry standards or current market prices. This strategy relieves you of the obligation to justify your terms or spend time negotiating for them. If you emphasize that you are asking only for standard deal terms, the burden shifts to the other party to convince you that you should make an exception in this case (and to make that exception worth your while by offering concessions elsewhere).

3. The Getting to Yes approach. The authors of this book emphasize that to reach agreement (to get to "yes") the negotiating parties must separate the people from the issues (that is, remove the emotion from the equation), look beyond the negotiating parties to see who or what is the real interest or influence affecting each party, generate options to create a problem-solving environment, and neutralize conflict by sticking to objective and easy-to-justify principles of fairness.

4. Take control. Controlling the location, timing, topics, and pace of negotiation (sometimes called "controlling the agenda") may create an advantage. For example, lawyers often believe that the attorney who drafts the agreement is in the contractual driver's seat. Similarly, by controlling the negotiations, you get to decide which topics are discussed and in what order. Sometimes, parties use a passive approach to take control -- for example, by seeming to act as the moderator for the negotiations or by offering to "summarize" where things stand (in a letter or brief statement at the start of a negotiating session). No matter how the reins are seized, the party that frames the issues generally has more control over how those issues are eventually resolved.

5. Prioritize, prioritize, prioritize. Contract negotiations typically focus on revenue and risks. But clearly, some revenues and risks are more important than others. When you negotiate, you need to know what your top priorities are -- usually the business or money-making opportunity offered by the deal -- and how your other priorities rank below that. This will help you keep your eyes on the prize and avoid getting bogged down in issues that are not as important to you.

6. The "offer-concession" strategy. Make sure the other side leaves the negotiation feeling they've made a good deal. The offers you make should always leave you enough wiggle room to make acceptable concessions to the other side. Or as one businessman put it, "The most important trip you may take in life is meeting people half way." This also means you shouldn't start negotiations by revealing your absolute bottom line. If you instead leave yourself room to negotiate, you'll make the other party feel that they've won something -- and you may be surprised to find that the other party is willing to give more than you would have been willing to accept.

7. Question rather than demand. If the other party is taking a hard line on certain issues, ask why. Questions open up the discussion; arguments often close communication down.

8. Find points of agreement and end on a positive note. This upbeat approach requires that you find opportunities to say, "You're right about that," or "I agree." However small these points of agreement may be, they help set a collaborative tone. At the same time, if negotiations are spread over a series of meetings, always attempt to end each one positively. This too, goes a long way to establishing a collaborative tone that is more likely to be conducive to progress and result in an agreement.

9. Do your research. The party with more information usually has more leverage. For example, if you know that the people who put an offer on your house have already sold their own house and must move quickly, that gives you more leverage -- and some extra bargaining chips. You may be able to insist on a higher price, particularly if you're willing to allow them to close the deal fast. Sometimes, even personal information about the parties may affect your ability to create a more collaborative atmosphere ("Hey, I'm racing in that triathlon, too.")

10. Dealing with burnouts and ultimatums. If the other party resorts to threats ("Agree to these terms or there's no deal") or wages a war of attrition by dragging out the negotiations, you'll have to decide what the underlying deal is really worth to you. If the ultimate prize is so valuable that you're willing to accept the other party's ultimatum or put up with endless haggling, that's fine. Similarly, if the other party has all the power (for example, it's the only known buyer for your product), then you may have to grin and bear it for a while. If not, however, the best strategy is often to walk away from the negotiations. If the other party really needs you, it may reevaluate its tactics and return to the table. If not, you can move on to more productive negotiations with someone else.

11. Use facts, not feelings. Successful negotiators separate business from personal, facts from feelings. They avoid letting an unpleasant personality or style drag down the negotiations. They also avoid making the negotiations seem personal by using language such as "I believe" or "I think," focusing instead on statements of fact ("If we pay this price, both parties to the venture will be at risk.")

For more tips on getting your agreement in writing, read Nolo's article Contracts 101: Make a Legally Valid Contract. If you're looking for an A to Z guide to everything you need to know about contracts, get Nolo's book Contracts: The Essential Business Desk Reference , by attorney Rich Stim.