Successful Negotiations, Like Successful Plays, Need Great Lines - Part I

Faegre Baker Daniels partner Mark Voigtmann authored the following article for the Control System Integrators Association in March 2014.

At this year's upcoming CSIA Executive Conference in San Diego you will be seeing a first: I will be co-presenting with another attorney — my colleague Brian Clifford. Brian should not be a complete stranger to many of you. Not only has he advised CSIA members for a number of years, but he has tag-teamed with me in the past two or three years, writing short articles for this very newsletter.  

Brian and I got to thinking: What could we do with two presenters that we could not previously do with one? And that's where we came upon the idea: We decided to put on a play. 

You heard that right-a play. Our title says it all: The Negotiation (With Jokes). Our idea is to take an automation project from initial sale to close-out and act out negotiation strategies for each phase. (Naturally, I am going to make Brian assume the role of the hapless owner.) What are the phases? There are at least six in my way of thinking and here are the first three: 

Act I: Your Form or Mine? Many integrators don't realize it, but pitching the work marks the beginning of the negotiation. Key tip to be explained more fully in San Diego: Don't squander the opportunity to take control of the paper. The best place to do this is in the proposal (but it's not the only place). 

Act II: Successful Plays Need Great Lines. Although there are different schools of thought regarding whether to start a negotiation with must-haves or need-nots, we tend to come down on the side of the must-haves, e.g., limitation of liability, insurable indemnity, palatable warranties. Key tip to be explained more fully in San Diego: You need great lines (translation: back-up positions) to survive to the next act. What if the owner says "We never limit the liability of our partners"? Or worse, "We never negotiate our contracts." What do you say? 

Act III: Filling in the Back Story. Once the must-haves have been addressed and you determine that you will not be exiting "stage left" (walking away from the project), the temptation may be to let the more routine stuff resolve itself (e.g., specifications and standards, payment details, testing and commissioning, insurance). 

Key tip to be explained more fully in San Diego: Sometimes the purportedly "lesser" details can drive the whole project. Example: "Free from defects." Question: Ordinary and reasonable? Answer: it may be ordinary, but it's never reasonable in an automation project.

Next month: the final three acts. And, yes, there will be jokes.