It Depends – Negotiation Success! Now What?

Congratulations. You’ve successfully negotiated a new agreement. The paperwork is all signed, you’ve shaken hands, everyone’s smiling as you walk out the door. Now what? Of course, some celebration might be in order, but, what I’m really after here is what do you do that can make all that hard work and negotiation last the longest and provide the most benefit going forward? There are things you can do to make sure the road ahead is clear, that there aren’t hidden stumbling blocks that will trip you up when you least expect it. Not many consider that much needs to be done after the deal is done, but, there are certain things that if you don’t do or do wrongly can mess up even the best deal.

It may seem silly, but, now that you’ve negotiated the deal you should really take some time and re-read the actual deal you signed. You should familiarize yourself with all the final deals terms, obligations and benefits, the timings of things, the checks and balances, all of it. You may say, “Why should I need to do that, I was in the room where it happened!”

True, but, you were also in the room where options and ideas were discussed and negotiated. Desired stipulations were changed or abandoned after much discussion. There was a lot that went on in the room that didn’t end up on the page. It could easily be that the deal you remember negotiating wasn’t exactly the deal that you did sign.

You may remember a detail wrong, maybe something that won’t become evident until months after the signing. And that misremembered detail may cause strife when it comes up, or worse put you on the wrong end of fulfilling your obligations or setting the wrong expectations from the other side. Missteps could be embarrassing or worse.

Take the time to familiarize yourself with the actual deal agreed to. Know it well and try to forget what’s not there. Stick to the page. It’ll help with the next steps.

Most negotiated deals last a long time. A well-set-out agreement will contain milestones to reach along the way. There will be time elements where things need to move along toward each step, there could be elements that must be achieved, however long it takes, before the next phase can be entered. Sometimes the agreement timeframe will require more from one side while the other waits. 

Take to heart all the timing elements and crux points within the deal, know who is responsible for what at what time during the run of the agreement and who is supposed to do what next. Keeping the timelines and party responsibilities at each stage in mind will keep the deal on track, allowing a smooth flow without either side getting ahead of themselves or waiting too long for next actions, whether those actions are what’s next in the deal, or what response is required if the deal should stall.

Every good agreement will have, what I colloquially call, “escape clauses,” just in case. At each phase of a long-term deal, things can shift and well-meant promises may be harder to fulfill than originally planned. A well-constructed document will anticipate these potential stoppages and set out procedures to allow for handling these unexpected stoppages. 

Knowing where these triggering events are and how to properly initiate them when necessary will make these unwanted situations much easier to deal with. These plans, negotiated ahead of time, diffuse a lot of tensions that would otherwise stain the business relationship if the hiccups were unanticipated without ready actions for relief. These plans for relief can come in many forms and may be multi-step strategies with allowances for curing breaches, waiving or ending the agreement altogether.

Knowing the letter of the deal is good, but, that doesn’t mean the best plan is always to follow it. A well-designed agreement will have a waiver clause that allows a party to recognize when the other party is technically in breach of their obligations in an agreement, but, decide not to trigger the potentially harsh reaction allowable in the contract’s terms. 

A well-crafted waiver clause will allow a single instance waiver without affecting the rights of the waiving party to enforce their rights at a later instance of a similar infraction. Without that stipulation in the language, a waiver of a right in an agreement could preclude any future enforcement of that right at a later date. Again, knowing the exact language in the agreement is key to knowing how to use its powers.

When a party fails to meet their obligations in an agreement that party is in breach. A breach is a breaking of the agreement terms by one of the parties. A breach is a serious, potentially agreement-ending event. How a breach is handled can be stipulated within the terms of the contract. The terms can specify that once a breaching party is given official notice of the breach by the other party the breaching party may be given a time period and conditions to cure the breach. This allows a fixable error to be addressed, but, the non-breaching party has the upper hand in assessing whether the fix is timely and sufficient.

If, even after an available cure is attempted, the breach still exists, then harsher measures to end or alter the agreement are triggered. What those measures may be can be stipulated in a well-negotiated document.

Here, it is important to know the agreement terms regarding giving official notice to parties as well as if there are required interim steps on the way toward terminating the agreement. These could be mandatory stipulated mediation efforts, and/or an arbitration clause which must be followed before the parties could possibly end up in a lawsuit. The terms of the agreement could also recognize certain breaches being so unmanageable that it would trigger an immediate termination of the agreement by its terms alone. 

Knowing these clauses and their nuances (like, jurisdiction, what type of mediation/arbitration to be employed, who pays for these, whether they’re binding, etc.) is most important to know ahead of time, even though most of the time you’ll never have to invoke them in real life. Knowing how to if it comes to it relieves some of the anxiety during those tough, rare instances.

Because most agreements run for extended periods it is always prudent to have an amendment clause in every agreement. An amendment clause stipulates the process for how any mutually desired changes to an existing agreement must be incorporated and accepted by both parties. Sometimes events outside of an agreement alter the necessity or type of agreed circumstances within the contract and instead of ending a current agreement and creating a new one from scratch (a necessity if the current agreement doesn’t have an amendment clause, by the way,) creating new clauses or altering the language of a limited number of current clauses can accommodate the new necessities without revisiting and renegotiating the rest of the deal.

The recommendation here, though, is to consider everything that is in the current deal if you are going to amend it at all. The amendment might be necessitated by one thing, but, if there are any other elements of the situation between the parties that hasn’t lived up to either’s expectations, now might be the right time to smooth those waters as well. 

Amendments have to follow a well-defined, rigid protocol to be properly added to a well-drafted agreement, so, creating them is a laborious, rare event. But once the opportunity to make alterations is necessary, it pays to at least discuss what else might be ready for change to keep everyone happy. Don’t go hog wild, but, a need for an amendment is a good time for a reassessment of the rest of the agreement.

As always, it depends. How a deal works out and how you handle the circumstances often depends on how well you have familiarized yourself with the agreed terms. A good deal is something to celebrate, and know fully.