We’ve all been there: you have spent a long day negotiating or mediating a settlement to a contentious lawsuit or business conflict. You have agreed upon the essentials of the deal. You are tired, hungry, and perhaps a bit miffed at your adversary. But now you need to draft the details of a binding agreement to achieve peace and finality. What must you do to get this done right and avoid needless, further litigation or argument over what the parties intended? Let me offer a few random thoughts.
Take a short break. Hunger and fatigue are enemies of sound draftsmanship. Fuel up if you can. See “Better Negotiations When You’re Rested And Fed” at Bastaresolutions.com.
Ensure that the right parties are at the table; that means those who have authority to settle. If this is impossible, be sure to find a way to include stakeholders in the process by regular reports on the negotiation or participation by phone or Skype. There is no better way to sabotage a negotiation or mediation than leaving out an essential party.
Resist the temptation to defer drafting an agreement. Better to draft while your negotiation is still fresh in your memory and to preclude buyer’s remorse from setting in, as it may very well do so tomorrow. Drafting while the negotiation is uppermost in mind also avoids the time and expense of later reconstructing what you agreed upon.
Don’t expect your mediator to draft the agreement. Your mediator may serve as a scrivener, but it’s your dispute and your agreement.
Bring a draft settlement agreement to the negotiation. “She who controls the agenda, controls the meeting.” This gives you a preferred template to work from and insures you are not likely to forget the key details where the devil may reside.
If you cannot draft a complete agreement, and must resort to an intermediate step like a memorandum of agreement, be sure to use clear, definitive language that is as unambiguous in its terms as possible so that you are not left with an unenforceable “agreement to agree.”
Don’t let previously undiscovered ambiguities derail the negotiation. Button down what you’ve agreed upon and keep at it.
Don’t be shy about suggesting necessary changes to your agreement. If you believe a key term has been inadvertently omitted, speak up.
Review the draft agreement. Then review it again, especially if you did not prepare it.
Beware of underhanded tactics if you are not the draftsperson and don’t know your adversary well: the incorporating of terms not agreed upon, deliberately including ambiguities, or “nibbling” –last-minute insertion of additional terms.
Be gracious. If you believe you have achieved the better of the negotiation, do not gloat. And do not be effusive in praise of your adversary’s deal-making abilities; it will only make her suspicious that she has been had. You may be negotiating with this person again. Build upon the rapport you have developed.
Drafting a solid agreement is hard but necessary work, especially after a long day. But if you were prepared going into your negotiation or mediation and afterwards take the time to do it right, despite fatigue, hunger, and upset at your adversary, you can get lasting peace and finality.