(From the notebooks of Tyler Gitou, the Deal Whisperer)
Verdi ended his phone call and slipped his cell phone into his pocket. He walked into the coffee shop, saw Tyler Gitou, and sighed.
“What is it Verdi?” Tyler asked.
“My client is so difficult.” Verdi sat down. “We have been negotiating this contract for three weeks now and some of the things they are asking for are outrageous.”
“Really? What kinds of things?” asked Tyler.
“Oh it’s too much to explain. Milestones, liquidated damages, guarantees. It’s like they don’t understand the nature of the deal.”
“Maybe they don’t,” Tyler said. “When was the last time you had a conversation about the substance of the deal?”
“Just now. I called to tell them our lawyer had sent our markup of the agreement back to them. This is the fourth version we’ve sent to them. I don’t know how we get this done.”
“So you have exchanged a draft contract four times now. How many times have you sat down in a room to discuss it?” Tyler asked.
“We met when the process started and our lawyer has been talking to their lawyer so we’ve been talking a lot,” Verdi said.
“Have you been understanding?”
“What’s that supposed to mean?” Verdi asked.
“You may be talking but it doesn’t mean you’re hearing each other. It sounds like your deal may be suffering from a business disease called documentum negotiatis.”
Verdi cocked an eyebrow. “You’re kidding right?”
“Yes, I made up that name,” Tyler laughed. “But the actual ailment is real and commonly occurs when parties choose to negotiate by document rather than by discussion. It starts when one party sends a contract to the other party and the other party marks it up and sends it back. What’s missing is a step in the middle where the parties get together and discuss the substance of the contract, ask questions and seek to understand the intent and outcomes the contract is trying to produce.”
“I hear what you’re saying but this is the way we always do it.”
“And what usually happens?”
Verdi paused. “Documentum negotiatis.”
“Exactly. So if you want achieve a better outcome?”
“I need to change the process,” Verdi said.
“Here is my suggestion. Schedule a meeting with both legal teams and all the business stakeholders and walk through the contract changes. Seek to understand what the other side is trying to achieve. Often people mark up an agreement with perceptions or assumptions about the language that completely miss the actual intent. Get everyone re-focused on the goal of the deal and work toward the mutual goal.”
“That’s a good suggestion, thanks.”
“And from now on remember this: Send paper, send people. A Deal Whisperer never responds to a document with a document. He responds with a meeting request to seek to understand the intent of the document. Only after he understands does he respond, at which point there is another meeting to explain and understand those proposed changes. Meeting like this builds collaboration, allows for transparency and gradually builds trust as two parties who are trying to accomplish something together build a lasting business relationship.”
