NEGOTIATION - NZ TECHO SPRING 2016 ISSUE 70
Given that a significant portion of many lawyers’ time is spent in some form of negotiation – with other lawyers, Judges, or in commercial meetings – it has always surprised me that negotiation is seldom offered as a separate paper in law schools. Aside from the occasional course in the burgeoning area of continuing legal education, it is really experience in legal or industry practice that provides lawyers with useful skills in the art of persuasion or negotiation. Ultimately, that results in a wide range of negotiating ability – not only on the part of lawyers, but also evident in those with other professional or industry backgrounds.
So what can a lawyer working in the film/television industry add to the general pool of knowledge in this area? What reflections on negotiating style and strategy would be useful to members of the Techos Guild? What bargaining strength does an individual have against a larger organisation? I will try to address these issues in roughly the order they might occur in a commercial negotiation.
Preparation: it almost goes without saying that the better prepared you are, the closer you will get to meet your expectations. In the context of crew members in line for production work; that includes going rates for services, background on the project and the producer, whether you have significant opposition for the gig, and presentation of your services in the best possible light. I’ve always found it useful to imagine what the other side might want in approaching a negotiation. As Abraham Lincoln once said “When I am getting ready to reason with a man, I spend 1/3 of my time thinking about myself and what I am going to say and 2/3 about him and what he is going to say”.
Unequal bargaining power: the reality of most productions is that it is the producer who has accessed the funds, chooses the crew, issues the agreement, and will try to sidestep most awkward issues by referring to the funder, the distributor, the insurer, the production schedule, the way it has always been etc. It can pay to question some of these calls, but best to choose your battles – some of these matters have become industry practice. Hopefully, a standard crew contract will clarify such matters further. After all, this is supposed to be a collaborative industry, right?
“If the other side is taking some issues for granted because “it’s always been done that way”, I challenge the tradition. It’s amazing how asking the other side to explain the reasoning behind a standard clause can get you a more favorable and definitely non-standard result.” Mark McCormack “On Negotiating”.
Process: best business practice should involve a producer issuing a draft crew contract in sufficient time for discussion and agreement prior to commencement of services. It doesn’t always happen that way, and some advantage might be gained by crew issuing a deal memo or similar containing their essential deal points. Not only does this move assume the initiative, it also provides a record if any disputes or issues arise down the track, and even better, if the other party doesn’t raise objections to your terms.
Define what is in issue: although this is an obvious point, it can be easy to loose track of what has been agreed and what hasn’t, especially if there is a lot of detail involved, or the goalposts keep changing. But simply reminding the other party of what has been agreed can be a positive, and constant review/focus of what is not agreed is a necessity.
Putting the ball in the opponent’s court: apart from the skunk defence, this is my favorite tactic when the going gets tough. It can buy time, gain information, and provide a distraction. The phrase has stuck in my head (along with a number of other sportsmanlike analogies) since receiving a letter as a junior solicitor which simply read “The ball is in your court now. Hit it.” Obviously, any relevant questions have the effect of switching the focus onto the other party, but lateral questions can be useful too. I’m often surprised at the eagerness displayed when people are asked for advice, or in response to my own favorite “what do you want?”.
The art of listening: I’ve often found negotiations in the media field start off like the Harry Nilson song “Everybody’s talkin’”. It never bothers me when someone else seeks the limelight at the commencement of discussions – often these people give away more information than they realise – so long as you choose the right strategic moment to convey your point.
Send Lawyers Guns and Money: if you do decide lawyers should be involved in negotiations, then it is important to judge the right moment to do so. The appointment of lawyers tends to result in parties adopting positions and often introduces an adversarial element. This is especially the case with mid to large law firms, who in my experience have a vested interest in not resolving issues quickly or amicably. It also introduces difficulties in speaking directly to the other side.
I could go on about the antics of some lawyers I have had the misfortune to encounter in contentious situations, but I will leave the last word in negotiating with difficult people to a Ponsonby lawyer mate. He received an unacceptable ultimatum from a law firm, and responded:
“Get fucked. A strong letter will follow”.