Our readers who follow the news are aware that the Federal government has been partially shut down for several weeks. President Trump has taken the position that he will not agree to re-open the government unless a wall is erected along our southern border. The Democratic leadership has responded that it will absolutely not agree that a wall is to be installed. It is not the goal of this author to side with either of these positions. Rather, we find it striking that neither side is negotiating effectively. By stating an absolute, such as there must or must not be a wall, both sides are preventing a satisfactory resolution; which requires agreeing to terms that inherently will be neither of these positions. Presenting an “all or nothing approach” is not how matters are successfully concluded. This post will address one of the tools that experienced attorneys have at their disposal- strong negotiating skills. We will explore how these skills are utilized in various legal matters.
Negotiation strategies can take the following course in real estate transactions. We recommend that parties to a proposed deal let their attorneys “do the talking” and thereby prevent themselves from showing emotion or desperation to sign the contract. Otherwise, such a party is vulnerable to agreeing to issues in the contract that may not be beneficial and result in regret. For instance, a seller who needs to sell for financial reasons or who may be facing foreclosure, without other viable offers, may agree to excessive demands from the buyer like making repairs, credits for inspection issues, etc. On the flip side, a buyer “in love” with a particular house that has multiple offers in a strong Spring market may agree to risky decisions such as waiving the mortgage contingency, allowing violations to remain and the like. The more prudent negotiation move is to allow only a qualified attorney to be aware of these factors, not display feelings and allow the attorney to be the only one to negotiate on a party’s behalf.
Commercial lease negotiations contain their own strategy. A tenant may want to be in a particular location and find it necessary to tolerate the unreasonable expectations of a landlord. For instance, a landlord may wrongfully impose snow removal obligations on the tenant. The tenant’s attorney can get more leverage in this negotiation if the tenant is willing to walk away and find another location instead. Such flexibility may help to achieve better results for the client. Perhaps the landlord has an opportunity to rent to a “big box” nationally known tenant. In such a case, the tenant will require that its form of lease be signed and will not be amenable to many landlord requirements. Locating another tenant who is willing to accept landlord demands could be best in some situations.