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A Valuable Lesson on Summarising During Negotiation

Published: May 10 , 2018
Author: Marc Mcallister

A client recently decided to engage a digital marketing firm to conduct online marketing for their small restaurant. Business had steadily grown, and they had expanded from what was originally just one small food truck to that and an additional two brick and mortar stores. As such, they felt it was time to develop a focused marketing strategy utilising social media campaigns - typically a successful approach to brand development in the current fast food market.  

 

Subsequently, they decided to meet with a highly-recommended local company which had produced some successful results for peers within the industry, consistent with what our client was hoping to achieve. During a series of meetings with the marketing company's sales and technical team, our client discussed what their expectations were in the areas of strategy, pricing, content IP, contract term commitments and campaign costs. At the conclusion of these meetings, our client felt confident that the other party understood their position in relation to these areas, and as far as they were concerned, the outcome was a tentative agreement to the following:  
 

  • An initial three-month commitment to test the waters (the other party had originally asked for six-months) 
  • The client would retain all rights to any content developed (i.e. photos, blogs etc. 
  • Pricing would be $1,835 (the other party had originally sought $2,020) 
  • Marketing campaign costs were included in the monthly fee 

 
When discussing these terms in the meeting, the other party had appeared agreeable -  certainly they did not verbally indicate that these terms were unacceptable. At the end of the meeting, they all shook hands, and our client left, satisfied that they had successfully negotiated the deal on their terms as above. All that they were then waiting on, was the contract to be delivered so they could sign on the dotted line! 

  

Imagine their surprise then, when the contract was delivered, and it did not quite reflect the terms they believed had been agreed: 

  

  • Minimum six-month term 
  • All content created by the marketing company would remain their property (not our client's) and with 100% of rights reserved 
  • Pricing was $1,835 ex GST, so in total equalled $2,018.50 
  • Marketing campaigns would be invoiced in addition to these monthly costs 

 
Our client was shocked - they had put forth their preferences in terms of pricing, content ownership, minimum contract length and campaign costs! The other party had appeared to listen, understand and agree. How then could there be such a discrepancy in expectations within the contract?! What had gone wrong? 

 

When questioning our client about the conversations which took place during the negotiation, it became clear that neither party had actually summarised the agreed terms at any point. This then gave the other party an opportunity to deal creep - they were able to exploit thambiguity within the 'argue' and 'agree' steps, writing the contract in their favour, and hoping that our client wouldn't challenge this.  

  

The approach taken by the marketing company, is of course, not recommended  they risked losing the deal and our client's business permanently, not to mention damaging their own credibility and reputation. 

  

So what could both parties have done to prevent this conflict of expectations? 

  • Throughout the negotiation both sides should summarise regularly. If your counter party isn't doing it, you certainly should be.  
  • Make sure you document the points which you believe have been agreed and give each side a copy. This provides the opportunity to advance the negotiation and move towards closing the deal or alternatively seek elucidation for any areas of misunderstanding.  
  • If there is any ambiguity, nip it in the bud – ask questions and seek clarity. This will save time and pain, as you do not want to proceed thinking you have come to an agreement, only to discover later that you have not, and then have to waste time backtracking. 

 
This was a valuable, but frustrating lesson for our client to learn. However, to their credit, they were able to redeem themselves. As compensation from the other party for the misunderstanding, they unlocked a wish list item and were able to secure an internship with the marketing company for a close family friend who was a recent marketing graduate. The rest of the contract was also subsequently re-written according to their preferences, with the only amendment being the additional costs of campaigns which the marketing company were able to justify and to which our client agreed. 


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About the author:

Marc Mcallister
Marc has eight years’ experience in Finance, where he has extensive exposure to and participation in negotiating commercial agreements with fund managers, partnering firms, as well as suppliers. He is also a small business owner and constantly negotiates with various stakeholders on issues spanning from real estate, packaging, to long term multi-pointed supply agreements.

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