In my last post, I discussed some key points that you need to remember while preparing for a negotiation during an M&A transaction. Let us now discuss the things you have to bear in mind after negotiations have started.
Clients and parties come with different temperaments. Some of them may seem polite while others may be a bit rude and even a little pushy. Irrespective of how the other side is behaving, you have to be equable and composed at all times. Be firm but polite. Do not get ruffled by any behaviour from the opposing side. Put your case across clearly and (if necessary) a bit forcefully but avoid foul language, impolite behaviour, and harsh words, all of which are more likely to lead to an unsuccessful conclusion.
For a negotiation to be successful, all parties must be calm, composed, and ready to find a solution or a compromise. Remember that you are the lawyer and therefore, do not have a personal stake in the subject of the negotiations. Your clients on the other hand, are financially (and possibly even personally) invested in the transaction, and so may be unable to take a balanced approach to some issues. You have to be the voice of reason.
As discussed in the last post, you need to know your client’s bottom line before the negotiation starts. However, if during the negotiation, your client is being unreasonable, either try to park the issue for a lengthier discussion later or ask your client to step out of the room to discuss the matter privately. If the discussion has stalled on a particular issue, try to move on and resolve other smaller issues before circling back to the unresolved one. Parties are likelier to feel that they have achieved something rather than return to an issue feeling like there was no resolution on any of the issues.
While your attire may seem a slightly foolish (and even flighty) issue to even mention in this context, do not underestimate the importance of your clothes. For instance, if you came to the negotiations in your pyjamas or in wrinkled clothes that look like you just rolled out of bed, your client may feel that you are not taking the negotiation seriously. Even your opposing counsel is likely to feel that you have not taken the negotiation seriously. You need the opposing side to take you seriously and have faith in your abilities as a negotiator. Only then will they listen to you and consider your point of view. Dressing the part is important.
Always dress formally. Look smart, clean, and well put-together. Remember this is a key part of your job and you must dress in a manner that is acceptable in your office.
Take detailed notes
As a lawyer, we sometimes feel that it is not our job to take detailed notes. After all, we took notes throughout our student lives and taking notes during a negotiation might make us look like we are back in college. Having so much faith in your memory can get you into trouble because it is unlikely that you will be able to remember everything. After all, negotiations can continue for days and quite often, issues that had seemed resolved are re-visited to reach a fresh conclusion. Particularly in such situations, no matter how good your memory, you are likely to be confused if you don’t jot down those points or the conclusions that have been reached.
If you are not used to taking down notes while talking, keep a computer open in front of you and type out the conclusion concisely next to each point. Quite often, lawyers also ask for a very short break after a point has been decided to jot down the result before moving forward.
Remember that all of these points and conclusions will later be inserted in definitive documentation. Your client will rely solely on you to ensure the correct position is reflected in the documents. Having something written down – to refer to later – helps to ensure that your understanding of the results of the negotiation is correct and that you have not forgotten anything important.
Use the breakout room
The term ‘breakout room’ refers to a room outside of the room where the negotiations are being held, where parties can convene with their lawyers to discuss a particular issue. This helps break the monotony of the negotiation if there is any deadlock and gives the parties a chance to honestly review their positions with their lawyers without being overheard by the opposing side. While a negotiation process is going on, suggest a “time-out” or a visit to a breakout room if you feel that things are getting too heated, if you need to discuss an issue with your client privately, or even if you have a new idea or strategy for your client. It is always better to interrupt a gridlocked negotiation than continue to argue without any hope of a result.
Keeping these points in mind will help achieve a successful outcome to the negotiation. However, following these rules does not guarantee success. We should all remember that a negotiation depends mainly on the parties and their behaviour, which is bound to differ from one to the next. For lawyers, the best course of action is to keep these basic principles in mind and then adjust them to suit the temperaments of their clients.
(Deepa Mookerjee is part of the faculty on myLaw.net.)