Controlling the Contract

By Mark Jankowski

Imagine this: you reach an agreement in a negotiation and the other side says: “I will send you the contract.” You gladly accept as it means less work for you. Unfortunately many times the language in the contract may differ slightly from your understanding of the prior agreement. You suggest several changes and the other side acts startled that you are changing what had already been agreed to and now they claim that since you are making changes, they are allowed to re-open issues as well.

When two parties reach an agreement, many times it is codified within a written contract. Many people feel that the process is completed when the handshake occurs, but some people use the tactic of Controlling the Contract to gain extra advantage after the other side thinks that the deal is done.

To manage Controlling the Contact tactics, try to:

  1. Write the Drafts of the Contract. If possible, at the end of discussions, tell the other side that you (or your lawyers) will be glad to write it up. That way the other side is reacting to your draft rather than you reacting to their draft.
  2. Write a Memo Before You Write a Contract. By writing a memo or a letter in plain language, you will get both parties to agree to the main agreements before the lawyers start to confuse the issues with their own “legalese.” This plain language letter or memo can be a reference point back if the contract seems to be off course.
  3. If Necessary, Manage the Lawyers. Sometimes lawyers can re-interpret understandings and get into discussions with the other side’s lawyers that may or may not reflect the original intent of the agreement. If you sense this is happening, make sure to re-establish your contact with the other side to reiterate your understandings before you let the lawyers continue to battle it out.
  4. Personalize Communication. Where possible have major changes to the contract communicated via phone or in person. Often one side will provide comments to a contract that they feel are minor, but the other side perceives as re-writing the deal. It can escalate and trust can be lost if both sides continue to communicate by marking up drafts and sending them back and forth. Before you get yourself into a battle of the contracts, pick up a phone with the person who you worked with to cut the original deal.

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