“Family” Negotiations

As a technology transactions attorney (open source licensing transactions included), I spend a fair amount of my working day in negotiations of one kind or another. I have certainly read my share of books on negotiation. Perhaps because I have found these books to be somewhat hit or miss in terms of their value (and level of truly original content), I find that I read many more articles on the topic than I do books.

I recently came across a great article in the HBS Working Knowledge publication on”family negotiations” titled (what else) but 5 Steps to Better Family Negotiations. The premise of the article is that negotiations within a family-owned/run business are inherently different from those in other businesses, and therefore merit special consideration. However, the 5 principles of negotiation outlined in the article are of value in any business negotiation, not just those involving a family business. In fact, they are likely of value even in non-business negotiation, whether with family, friends or others.

I particularly like principle #2, “don’t try to beat the other side.” We (and by “we” I mean lawyers and non-lawyers alike) are conditioned from an early age that “winning” means that the other side must “lose.” As the authors note, and as I would certainly concur, many of the most successful negotiations entail cooperation, alignment of interests, and ultimately “mutual value creation.” Particularly in the context of a transaction where the parties will have an ongoing relationship after the negotiations have been completed, trying to “beat” the other side can yield negative results (for both sides). Ironically, it is not always the beaten party that ends up worse off. The party inflicting injury will almost always end up losing as well—as the authors note, whether it be psychologically, socially, and/or financially. While this is perhaps more apparent in a negotiation among family members, it is equally true in all business contexts. And while terms like “win-win” have become somewhat hackneyed (reference to the aforementioned myriad negotiation books intended), it is still an important concept that should not be overlooked.


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