A few months ago, I wrote that you can’t contract trust – that if you don’t trust someone, the contract isn’t necessarily going to help. D.C. Toedt picked up the baton and discussed how parties can help build trust between two parties (presumably who do not have an existing history). I really liked his points on the prenuptual provisions folks could employ and I was struck specifically on his followup point that merely proffering a balanced document to start contract negotiations could set a positive stage. I hadn’t really given it too much thought before, but I realized I’m biased based on the first document I receive prior to the start of negotiation.
I’m sure it sounds silly. Heck, it sounds silly to me. Even though I consider myself fairly introspective, I hadn’t considered this bias before. I hadn’t considered that I prejudged my negotiation adversaries based on a piece of paper. But there it was. I am a balanced-contract bigot.
I do not think well of people who allow unbalanced template contracts to leave their outbox headed in the direction of @licensinghandbook.com. I don’t like the language, I don’t like taking the extra time spent reviewing such agreements, I don’t like re-inserting and re-balancing the same typically imbalanced sections over and over again. So once I am forced to do it, I hold it against the people who sent me such an off-kilter document.
This isn’t good.
First of all, it’s probably not their fault. Most of the contracts people I meet didn’t write their own templates – and those that do, probably have to cede control over the final verbiage to another set of individuals. Second, even if they did write the language, there’s a certain amount of zealous advocacy I respect and admire that comes out as one-sided contract provisions. But overall, as a professional negotiator, I believe Herb Cohen got it right when he said that our job is to “care, but not that much.”
I also think that I’m biased because even when I don’t have complete control over templates used by my myriad employers, I always try to encourage contractual balance … especially in those contract sections where I know balance will eventually occur in each negotiation. (Quite frankly, it’s a time waster to have to re-negotiate each of those sections and I’d make those recommendations if for no other reason than to save myself effort.)
So the lack of respect I feel towards people who allow these imbalanced agreements to come my way at least affects my very first impression and initial response. This can come across in any number of emotional behaviors (I can be pissy, stand-offish, brusque, curt, argumentative, etc). Note that none of them are positive emotions. So what do you think the other sides’ response is to my behavior? Typically, it’s mirroring (and not the positive kind). In the end, my behavior contributes to the destruction of trust. Not a good place to be to successfully negotiate an agreement.
What do I do? The bias is there. And I’m never going to be happy about imbalanced agreements. Well, I can:
- start by making sure that I continue to advocate for balanced contract provisions based on actual risk allocation;
- check my attitude at the door when I receive a new agreement and remember that the person who sent it didn’t necessarily control the drafting;
- ask for a more balanced agreement to serve as the starting point (if the other side doesn’t have one, we can always use mine); and
- do as D.C. suggests and proactively note the balanced provisions in my template when I send it.
Perhaps, most importantly, I can remember that I am 50% of the trust equation and need to act in a manner both deserving and proffering of trust. Thanks to D.C. for reminding me of one of my responsibilities as part of the negotiation process.