Negotiated agreements are often categorised, neatly numbered, and suggest completeness. Behind this picture of order lies another story: what did the parties exclude and why?
The written terms of an agreement imply finality. Most agreements stack pages upon pages of clauses that address a broad array of topics. The sheer multitude of factors to consider can make interpreting real motives very difficult.
Let’s consider a simplified hypothetical where Holly proposes draft terms for the sharing of a car.
In these terms Holly includes:
“1. The car shall reside at Holly’s house in the mornings, and at Joe’s house in the afternoons. Each party must return after their period of use.
2. The car shall be cleaned once a day.
3. No food shall be consumed in the car.”
Have a think about what Holly might be trying to accomplish with each of these terms?
When Holly shares a simple first draft it presents two advantages. First, they define the benchmark for the following negotiation. Second, they paint an ordered picture of what you think they want. Confined and prioritised.
The savvy negotiator may of course question the hidden priorities of the other party, but even that questioning will be directed by the information first presented to you.
A few possible omissions Holly may have made purposefully are as follows:
1. Leaving out specific times of morning and afternoon could work to Holly’s advantage. This may be considered as 12:00am – 11.59am, 6am-11.30am, or any other arbitrary limit that suits her. If the technical limit of 12:00am is upheld, Joe would need to drop the car back by 11.59pm, a more inconvenient time than 11.59am.
2. As Holly is the first user of the car each day, washing at the end of the day seems more logical after everyone has used it. Holly could then escape cleaning duties.
3. Holly does not particularly care whether food is eaten in the car, but knows that Joe loves eating take-out on the road. Conceding on this point could be used as a trade-off for an inclusion of a favourable clause later by Holly.
Practical eccentricities of the hypothetical aside, it demonstrates that what is left off the paper is important. The hidden text allows for flexible interpretation of terms, and could be used in the late-stages of negotiation more effectively than at the beginning.
As a receiver of draft terms for any agreement, be sure to read between the lines!