When do the negotiations really end?
I used to think that once the formal negotiations were concluded, the contracts were signed, and any memory of the “deal” was exchanged, the “deal” was done. In fact, formal negotiations may have been concluded and agreements committed in writing and signed, but in many cases the actual negotiations have only just begun. In some cases this may purely result from a cultural norm, but most of the time it is the result of having to deal with real life situations.
The reality is that no agreement can anticipate all possible circumstances or situations that the parties may encounter during the term of their agreement. Lawyers go out of their way to provide contingencies in settlements in anticipation of change, often adding to frustration for employers, but something unforeseen will still come up at the negotiating table. The key to success is ensuring that the parties have a good enough working relationship to allow them to pool their combined “expertise” and solve the “unforeseen” problem. Doing so will not only help improve the working relationship, but will generally ensure that the parties benefit from the outcome in the long run.
The worst possible scenario is one in which one or more parties rush to check the exact verbiage in the signed agreement every time a problem arises. This approach is a clear indication that the agreement may have been signed, but that one or more parties were not completely satisfied or comfortable with the final agreement. In fact, it may be an indication that one of the parties feels they “left something on the table” and this is an opportunity to take something back to “level the playing field.”
In each case, it is a clear indication that the negotiations have not been concluded to the satisfaction of all parties involved and, if left unchanged, the likelihood of a long-term successful relationship is compromised. In fact, the relationship is likely doomed from the moment the agreements were signed. Most likely, one of the parties sees the agreement as a mechanism to end the relationship and move on.
At the conclusion of formal negotiations, we always present a well-bound copy of the agreements to all parties involved to commemorate the “deal” and provide a reference document for the record. We always hoped that no one would have to refer to the document to resolve a problem or face an unexpected change in circumstances affecting the business or relationship. Instead, we hoped that any unforeseen events could be resolved outside of the agreements themselves, that the parties would “put their heads together” for the benefit of all involved.
Lesson learned: If you have to consult the contract to deal with a change or unforeseen event, your relationship is already in trouble and the long-term prospects for your relationship are not very promising. It would be much more effective to solve the problem by working together with the affected parties to find a creative solution that satisfies everyone involved.
