1. Prepare well!
2. Know the following:
   • Your BATNA (best alternative to negotiated deal).
   • Your reservation (walk-away) price.
   • The ZOPA (zone of possible agreement).
3. Identify and question your key assumptions.
4. Control agenda.  (Easier for buyers.)
5. Know your motivations.
6. Find out what you can about other side’s motivations.
7. Find out what you can about negotiating teams on both sides.
8. Giving your attorney limited authority may be to your advantage.
9. Set high aspirations.  (This will give you room to negotiate.)
10. Negotiate in person when feasible.
11. Take detailed notes.
12. Identify main issues.  To whom does each mean more?
13. Control drafting.
14. Identify what’s omitted – in negotiations and in drafts.
15. Ask lots of questions.  You may be surprised what you learn.
16. Listen and observe carefully (e.g., for new info, assumptions, weaknesses, conflicts, potential concessions, credibility).
17. Time is very important:
    • Is this a one-time deal or long term relationship?
    • Find out time pressures on both sides.
    • Be skeptical of deadlines.
    • Be patient (e.g., to get whole story or for other side to get used to proposal).  If time is on your side, use it.
    • Be creative about timing elements in contract (e.g. payment schedules).
    • Watch out for time value of money and satisfaction.
    • Consider different time horizon for contract (e.g., follow-on sales).
    • Fatigue can be very powerful influence either way.  Beware.
18. Consider risk sharing (e.g., percentage rather than fixed payment; limitation of liability as to amount and/or type of damages; and time limit for claims).
19. Use cooperative mode to break impasse.
20. Caucus liberally.
21. Concessions:
    • Be creative! How can a better deal be made for both parties?
    • Don’t concede on a quid pro quo basis.
    • Resist splitting the difference.  “I can’t afford to.”
    • Tally significant concessions by each side.
    • Get something for every significant concession.
    • Give concessions that cost you little or nothing.
    • Resist a significant demand like water – fall back, listen, think, advance slowly.
22.  Price – Advice to seller:
    • No competing package is exactly the same (so price may vary).
    • Defend price persistently.
    • If you lower the price, get a concession (e.g., greater volume, faster payment, lesser quality).
    • Avoid giving discounts for paying within x days.  The buyer often will take the discount even if late.
    • How long is the price good for (both in terms of offer and contract)?
    • Avoid giving price breakdown.
23. Inspection and acceptance.
    • Buyer should insist on it.  Seller should insist on a clear standard and provide for deemed acceptance after time or use.
    • Consider third party inspector (e.g., if big deal and major sticking point).
24. Consider threat, last-and-final offer, deadlock (walk).   Use sparingly.
25. Don’t underestimate your power.
26. Don’t overestimate other side’s power.

 

DISCLAIMER (of course):  This is NOT legal advice.  Moreover, the contract law of each state varies.  Seek competent legal advice for your contract matter.