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Negotiation risk management – tips for negotiating a business deal before you see a lawyer

Updated: 5 December 2019

The ideal scenario for negotiating a business deal is to negotiate terms in a way that allows you flexibility. 

You'll want the flexibility to change your terms with the help of a lawyer if you missed something or got something wrong.

So, here’s a guide on how to negotiate the initial terms of a business deal. 

The objective is to keep things simple, avoid disputes and keep things flexible in case you need to change key terms. 

Meeting

Your first discussion is likely to be a meeting.

So it's best to make your intentions clear upfront, either before the meeting in an agenda that you send out or provide at the meeting. 

You can use the statement below in your initial meeting agenda and I also suggest in follow up email negotiations.

Sample disclaimer:

Both parties do not intend for these terms or statements to be legally binding until they have been incorporated into a formal legal document.

Written terms

You can set out proposed terms either before or after your meeting. 

And these terms are commonly called MOU or Draft Terms.

The important point is to include the statement above.

Why?

Courts will look at the parties intentions if one of the parties brings a claim before a court.

When to get a lawyer’s help

You can get a lawyer’s help any time.

Based on experience, if you are going to get legal help its best to do so early so you can get your terms checked over and corrected (if corrections are needed) before formal legal document preparation.

If you are negotiating with someone that intends for terms to be binding, it’s wise to get advice before you sign any initial terms or memorandum of understanding

Commercial leases

It is very common for heads of agreement to be prepared by a landlord.

Usually those heads of agreement are intended to be legally binding. 

So, in this case, if someone else has prepared terms like this or refuses to include a statement about the terms not being binding, then at that point it’ wise to get legal advice, or run.

Final thoughts

Negotiations should always be fair and both parties should have a say about key issues.

And, if you are negotiating with someone that’s not willing to allow you the opportunity to get legal advice, this could be a signal of other unfair behaviour down the track.

Tread with caution.

I wish you every success in your ventures!


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Vivian Michael
 

Vivian Michael is a lawyer and founder of Michael Law Group. Vivian's mission is to deliver the best quality business legal services to entrepreneurs launching an Australian business, wherever they are in the globe.

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