Coping with the Other Side’s Draft

By — on / Business Negotiations

Imagine that your counterpart has placed a draft on the table. Here are three approaches to consider in response.

1. Prepare a counterdraft.

One obvious approach to coping with the other team’s draft is to place your own counter-draft on the table.

By introducing a counter-draft, you attempt to share control of the negotiation and create an alternative conceptual framework.

Writing a counter-draft also forces you to think through your interests and develop your own positions on the issues under discussion.

  • In addition, it offers a constructive way of clarifying your concerns about the other side’s standard form.

Although the counter-draft tactic may seem obvious, negotiators are failing to employ it. One reason for this is that preparing a counter-draft for a single transaction can require expertise and resources that an organization simply does not possess.

By contrast, a multinational corporation or the government of a developed country will be more likely to create drafts and counter-drafts because it expects to use such forms in many transactions over a long period of time.

The weaker party in a negotiation may also hesitate to counter one draft with another for fear of injecting disharmony into talks.

Moreover, issuing a counterdraft will almost certainly result in a “duel of drafts” with each side insisting that its text should be the basis of the discussions.

The side offering the first draft is likely to argue that any changes to it will jeopardize the subsequent approval by the home office, as all necessary departments have already given it their blessing.

Of course, the party submitting the counterdraft can make the same argument to support its own text. How can you avoid a potential stalemate?

Accept both drafts for discussion and adopt a version of the one-text procedure: work together to craft a single text that incorporates common principles that emerge from discussions of the two drafts.

2. Discuss Principles First

When confronted with a draft early in the negotiations, you might try to counter its negative effects by politely asking to put it aside temporarily while you talk about the basic principles and concepts that govern your relationship.

For example, in a joint-venture negotiation, rather than discussion the provisions of the draft agreement article by article, negotiators should first outline the major elements of their venture, such as risk allocation, profit distribution, duration, and control.

After reaching agreement on these points, the parties might then write down their understanding of the deal in the form of simple statements, which together would serve as the framework for the details of their contract, thus supplanting the draft originally proposed by one side.

3. Use the Draft but Not Its Order

Negotiators (including the African officials) often feel they have no choice but to accept the other side’s draft as the basis for discussion because they believe they have few desirable outside alternatives.

In such situations, you’d be well advised not to negotiate point by point, beginning with the first article and ending with the last.

Instead, as the receiving party, you should have the ability to determine the principal issues to be discussed and to present them in the sequence you deem appropriate.

This approach will enable you to shape the order of the agenda at the very least and perhaps avoid being locked into the conceptual framework that the other side seeks to impose with its draft.

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