Negotiation Strategy.ppt

1. Strategies for Successful
Negotiations
NCURA Regions VI and VII Meeting
Newport Beach, California
Sara Judd
Director, Department of Contracts and Grants
University of Southern California
Jeri Muniz
Executive Director, Department of Contracts and Grants
University of Southern California

2. The Basics
Understand your University
 Communicate with the PI before the negotiation
Gather info
• How did the project come about?
• Urgency of project (Has the work already started?)
• What does the PI expect out of the project?
• What do both parties bring to the table?
• Is there history with the Sponsor?
• Are we the only game in town?
Answer questions
• Explain Industry’s position and the impact on the
research team
• Clarify university policies, if necessary

3. The Basics
Understand Your Partner
 Get to know the Sponsor’s negotiator
Authority
Experience
Personality
Incentives
Availability
 Ask Why?
Understand their motivations
 What research results and IP rights do they expect?
 What will they contribute to the project?
 Timeframe

4. Why?
Solid Understanding = Solid Explanations
Solid Understanding = Creative Solutions
Solid Understanding = Credibility with Sponsor
Solid Understanding = Yes!

5. What’s the secret weapon?
Strategery

6. Strategery
Determine the best mode of communication
 Email or telephone
Pros & cons of each
 Criteria to consider
Complexity
Timeframe
Capacity of Negotiator(s)
Volume of Proposed Revisions
The Golden Rule
The Big Picture
 Remember the importance of the research

7. Strategery
Why develop a rapport?
 Creates a relaxing environment
 Mitigates the “adversarial” stereotype of a negotiation
 Levels the playing field
How to develop a rapport
 Ice Breaker
 Teambuild
 Get them to laugh….even if it’s at your expense!
 Put yourself in their shoes
 BE NICE!
 It’s all how you say it….

8. Strategery
Ask for clarification when:
 No rationale is provided
 You need to discern what the true concerns are, so that
you can provide appropriate language alternatives
 You need to “teambuild”, educate or elicit “conceptual
agreement”
Give them everything they need to say “yes”
 Explain your position – detail the “why’s” and “why nots”
Give them the “why we need it” AND the “why it’s okay for them to
accept it” rationale
 Provide “extreme” examples to demonstrate concepts
 Provide rationale
Use the terms that already exist in your agreement

9. Strategery
Our Favorites
 Stuff in Common: Weather, location, organizations,
kids, workload, etc.
 Explanations For Dummies: Make yourself the
dummy
 Start with: “Share with us” or “Help us understand”
 Confirm understanding: “I just want to be sure that I
understand so that we may craft language that
meets the needs of both our institutions”
 The Feel Good: “It seems that we’re on the same
page conceptually, we just need to make the words
match…”

10. Strategery
Developing rationale
 The reality approach
The reality is…..
 The peer pressure approach
Everybody’s doing it….
 Reference other sponsors to reduce anxiety
 “Keeping up with the Jones’”
 The “reverse rationale” approach
Ask Sponsor to provide some examples to support their position
Ask if the tables were turned, would the same language be
acceptable to Sponsor
State the implications of the language in the reverse
 The “Newspaper” approach

11. Strategery
Make it as easy as possible for them
 Offer to draft/provide language based on conversation
 Offer to talk with others to explain your position
Prime sponsors, legal team, others
Know when to hold ‘em
 Risk Assessment
Pick your bargaining chips before you go into the discussion
 “master of the obvious” language can be used
 Language that THEY have proposed that is actually BETTER for us
 Stuff we don’t care about
 Be aware of when further discussions will not further your
cause:
You’re talking to the wrong person (authority/capacity)
The person does not understand
 BE CREATIVE!

12. Strategery
Uh-oh...we’re not the only ones with Strategery!
Their Approach:
 Lazy contracting
 We have new agreement, policy, management
 I’m new
 Stall
 Sneak stuff in
 Send a contract with 8 pages of FAR clauses in 6 point
font and say they need it back tomorrow or you won’t get
the money
 Call your PI
 Call your boss
 Call your PI AND your boss

13. Strategery
Email
 Thank them profusely
“We look forward to working with you to finalize this agreement so that we can begin
this important collaboration…”
 Point out what you have done to make it easier for them
“For your convenience, attached please find…”
Writing basics
 Be personable but professional
Business writing
Spell and grammar check!
Be clear and concise
Understand that your message may be forwarded
Understand that your message may end up in an audit
If you are cc’ing people, let them know why, if they don’t already know, and
don’t cc bosses, higher ups unless you’ve given them ample opportunity to
“cure” their breach 
Read your email as if you were receiving it from a sponsor/party with
whom you were negotiating…warm fuzzy, or prickly?…if prickly, START
OVER!

14. Strategery
Telephone
 Thank them profusely
“We are looking forward to working with you to finalize this agreement so that we
can begin this important collaboration, and thought we could accomplish this more
quickly and easily via telephone…”
 Introduce everyone
 Talk about the weather, kids, dogs, big belt buckles
 Name drop (use connections if you have them!)
 Be proactive! Be the driver of the conversation -- driving does not mean
control, driving means steering, directing
 Use references to promote positive conversation:
I think we’re close, we just have a few things we wanted to discuss
I understand your position
We share the same mission
Help me understand/Share with us
Get conceptual buy in
 Give them a little rope….and then use it
Hear what they have to say re: why they have an issue with the language and use
that information to support your position (non-profits & IP ownership)
 If you get stuck in a circular conversation:
MOVE ON
Suggest drafting language to send to them
 Summarize the conversation, agreements and action items

15. Strategery
Remember when we said “it’s all how you say it”?
Buzz words:
 Positive vs. negative
 Positive
We look forward to, Collaboration, work together
Thank you for all of your time/Thank you for your efforts on our behalf
Tie it back to the important research
We are confident we will be able to reach terms that will meet the needs of
our organizations
PLEASE AND THANK YOU’S
 Negative
Concerns
We cannot accept
Any form of can’t, won’t, don’t
In accordance with Policy
Why can’t you do this, or why did you do this
Anything that can be construed as rude, offensive, condescending,
sarcastic
Throwing people under the bus

16. Ready, Set, Go…
Let’s look at specific clauses
and scenarios…

17. Scenario #1: Confidentiality
Project: Evaluation of a learning program at
Sponsor’s facilities
University: Public
Type of Agreement: Sponsored Research Ag.
Sponsor: Mid-size local company
Sponsor’s Negotiator: Outside Legal Counsel
University Negotiator: SP Office
Extra Motivation:
 First agreement between University and Sponsor
(PI considers this a critical partnership ~ with a
potential for future funding)
 Work already started

18. Sponsor proposed the following language:
“2. Confidential Information. University acknowledges and agrees that the names and addresses of
the Sponsors Corporations’ benefactors, donors, corporate partners and affiliates
(collectively “Contacts”) and all other confidential information relating to those actual or
prospective Contacts as well as other information such as but not limited to curriculum
material, learning tools or teaching methods that has or could have commercial or other
value in the purposes for which the Sponsor or its Contacts are engaged or in which they
contemplate engaging and information, that, if disclosed without authorization, could be
detrimental to the interests of the Sponsor or its Contacts (the “Confidential Information”),
whether or not such information is identified as Confidential Information. By example, and
without any limitation, Confidential Information includes the Sponsor’s student records,
employee records, and the Sponsor’s and the Corporations’ corporate partner agreements,
benefactors lists, donors lists, information relating to the Sponsor’s curriculum, teaching methods,
copyrighted materials, software and graphics created for the benefit of the Sponsor, business
plans, strategy plans, development plans, accounting/financial records (including, but not limited to,
balance sheets, financial statements, tax returns, payable and receivable information, bank
account information and other financial reporting information), and private information related in
any way to correspondence, history, gossip, stories, facts, rumors, photos, data, and other
information not generally known by or available to the general public …”
NOTE: This is just the definition….they then went on to obligate us to keep EVERYTHING
confidential.
Scenario #1: Confidentiality
Actual Contract Language

19. Scenario #1: Confidentiality
Contract Issue(s):
 Everything is confidential!
Relationship with Sponsor
Existence of the agreement, and the specific terms and conditions
Anything University personnel see while visiting the company’s
facilities
 University shall not engage in gossip, rumors..
What’s your approach?
 What do you need to understand about the University? The PI?
The Sponsor? The Sponsor’s negotiator?
 What resources do you have available?
 What examples would you use to explain your position?
 How do you facilitate the negotiation?

20. Scenario #1 - Confidentiality
Here’s what WE did:
Confidentiality
 Explained the University’s approach re: confidentiality based on the
nature of the Institution (including confidentiality of research results)
 Explained that the reason “marking of confidential information” is being
requested, is to ensure that we are in fact able to uphold our obligations
under the agreement, in that everyone would clearly understand what is
to be considered confidential
 Limited the scope/breadth by providing a more narrow definition of
Confidential Information
Gossip
 Requested clarification of the intent (i.e., what are the Sponsors true
concerns
 Used the “reality is” rationale:
I can’t even control gossip in our office
We are a research enterprise, and although we are in close proximity to
Hollywood….we don’t really care, now if Albert Einstein showed up…
In order to conduct the work, we cannot keep everything confidential
Put the onus on the sponsor

21. Scenario #2: IP
Project: PI-Initiated trial to treat psoriasis with
an FDA approved drug (approved for the use to
be studied)
University: Private
Sponsor : Big Pharma
Industry Negotiator: Internal Legal Counsel
University Negotiator: SP Office
Extra Motivation:
 Parties negotiating for three months
 PI is anxious ~ VCR/Provost has been informed

22. Sponsor originally proposed ownership of all
inventions but then proposed the following
language:
“6. PROPRIETARY RIGHTS
All information resulting from the Study conducted under this Agreement, including all
data, results, conclusions, discoveries, inventions, know-how and the like, whether
patentable or not (“Data”) shall be fully disclosed by Institution and/or Principal
Investigator to Sponsor.
Sponsor shall have the unrestricted right to freely utilize all such Data in
whatever manner it desires. All Data shall be the property of Institution.
Institution hereby grants Sponsor an exclusive, irrevocable, fully paid-up,
royalty free, worldwide license, with the right to sublicense, import, make, have
made, use, offer to sell, sell and have sold all such Data. Institution and/or
Principal Investigator shall assist Sponsor, at Sponsor’s expense, in the preparation of
all documentation necessary to effectuate and perfect Sponsor’s rights in such Data.”
Scenario #2: IP
Actual Contract Language

23. Scenario #2: IP
Contract Issues:
 Outright grant of an exclusive license to everything
(inventions, data, know-how, etc.)
What’s your approach?
 What do you need to understand about the University?
The PI? The Sponsor? The Sponsor’s Negotiator?
 What resources do you have available?
 What examples would you use to explain your position?
 How do you facilitate the negotiation?

24. Scenario #2 - IP
Here’s what WE did:
Know-how and the like, whether patentable or not
 Used combination the “reality is”/extreme example rationale:
Know how = what’s inside the researchers head, so short of doing a
brainectomy, or utilizing some sort of brain sucking machine…..how
would this information be transferred?
Explained that PI does not disclose “non-patentable” information to
us, and in addition, they only assign patents to us, so therefore
“patentable” is the only thing to which we would be able to provide
rights
 Limited the scope/breadth by providing a more narrow definition of
Data
Sponsors use of data/exclusive license
 Used the “it’s the law” rationale:
explained that a PI initiated study is not regulated by the FDA,
therefore the law does not require such broad access to data.
Explained that the granting of such a license would violate the tax
reform act, ultimately jeopardizing the nonprofit status of the
University
Language could result in University (public entity) subsidizing Industry
research – I get crabby about how you use my tax dollars

25. Scenario #3: Indemnification
Project: Development/Testing of a survey tool;
surveying alleged victims of elder abuse
University: Public
Type of Agreement: Collaboration Agreement
(No Funding)
Sponsor: County Agency
Industry Negotiator: Contracts Specialist
University Negotiator: SP Office
Extra Motivation:
 Pressure from Sponsor to execute the agreement
(“There’s no funding ~ so what’s the problem?”)
 Project linked to other ongoing projects

26. Sponsor proposed the following language:
“University shall indemnify, defend with counsel approved in writing by the
Sponsor, which approval shall not be unreasonably withheld, and hold the
Sponsor, and their officials, officers, employees, agents (“SPONSOR
INDEMNITEES”) harmless from and against any and all liability, loss, expense, or
claims for injury or damages arising out of the performance of this Collaboration
Agreement, but only in proportion to and to the extent such liability, loss, expense,
or claims for injury or damages are caused by or result from the negligent or
intentional acts or omissions including the actual or alleged sexual misconduct
of University , its officers, employees, or agents.
Sponsor shall indemnify, defend, and hold University, its officers, employees, and
agents harmless from and against any and all liability loss, expense, or claims for
injury or damages arising out of the performance of this Collaboration Agreement,
but only in proportion to and to the extent such liability, loss expense, or claims for
injury or damages are caused by or result from the negligent or intentional acts or
omissions of Sponsor, its officers, employees, or agents.
Scenario #3: Indemnification
Actual Contract Language

27. Scenario #3: Indemnification
Contract Issue:
 University is to indemnify, for all acts or
omissions, including alleged or proven sexual
misconduct or abuse
What’s your approach?
 What do you need to understand about the University?
The PI? The Sponsor?
 What resources do you have available?
 What examples would you use to explain your position?
 How do you facilitate the negotiation?

28. Scenario #3 - Indemnification
Here’s what WE did:
Sponsor was also a State of CA entity
 Used the “it’s the law” rationale:
We’re all one big happy family and you should know we can’t
accept liability that extends beyond our negligence
Referenced and requested we utilize language negotiated in
previously accepted State of CA agreements
Do as I say, not as I do – used the “reverse” rationale –
would you accept this language as a State entity….well,
same answer for us.
 Used combination the “reality is”/extreme example
rationale:
Elder abuse population may pose an increased risk re:
allegations of sexual misconduct, which may result in
increased associated defense cost
There are costs associated with defending allegations that
may not result in an actual finding of misconduct, therefore
this would fall outside of the “negligence” arena

29. How do you manage it all???

30. Keys to Expediting Your Negotiations
Getting Unstuck
 Don’t delay!
Be proactive and responsive
 Establish a timeline/deadline for response
 Press “0”
Stalkers are people too!
 Identify others
Google is a wonderful tool
Involve your PI
Utilize previous contacts
Be creative!

31. Keys to Expediting Your Negotiations
Develop an Officer Tool Kit
 Provides one-stop shopping for all resources related
to topic/sponsor issues
Rationale
Template language and agreements
Access to internal/external guidance
Previously negotiated agreements (and the
corresponding history)
 Shared access
Enhances consistency
Self-updating

32. Keys to Expediting Your Negotiations
Internal Training
 Build a Foundation
Build an in-depth knowledge of applicable policies,
laws, resources
 Language
Build a strong conceptual understanding of the
language
 Teach the Approach
 Find/Be a Mentor (sit in on live phone negotiations)
 Troubleshooting in a team environment
 It’s ongoing!!! Stay current!!!

33. Any Questions?