Tuesday, September 6, 2011

Wall Street vs. Main Street Negotiations

I was recently asked by an entrepreneur what my advice would be on how to handle a contract negotiation between his company and a large, Wall Street financial services firm.  He was a bit concerned by the rather one sided terms being proposed by in the initial draft of the contract.  He was also getting annoyed that every time he tried to push back, he inevitably found himself arguing with their lawyers instead of the principals themselves.  And for the past week, they had stopped returning his emails and phone calls altogether.  Needless to say, the entrepreneur was concerned that his push back had soured the deal.

I told him to take a deep breath and relax, while I acquainted him with the realities of a Wall Street Negotiation.

At the risk of grossly stereotyping, it has been my experience that there are two fundamental negotiating styles.  One I call Wall Street Negotiations, the other I call Main Street Negotiations.  Now I'm a Main Street kind of guy so in the descriptions that follow, my biases should be pretty easy to observe.

Wall Street Negotiation
This type of negotiating style is based on the premise that one has a fiduciary duty to get the most out of any deal for one's shareholders.  Leaving money on the table is bad and indeed might even get one sued.  Every term is crucial and advantage can be found by having the best specialists (i.e. lawyers and accountants) on the team.  The assumption is that the other guy is thinking exactly the same way, there is an understanding by both parties that the negotiation is just business (not personal), and no matter how contentious the negotiating process, once the deal is inked, bygones will be bygones and we'll all be able to work together going forward.

Wall Street Negotiators, as a rule like, to put out the first contract draft, heavily biased in their favor to establish the base position.  This puts the other party in the position of having to pull the contract back towards center.  Wall Street Negotiators will make lavish use of teams of high powered attorneys and accountants to (a) insure they have the best experts able to scrape every penny off the table and (b) to "cover their a--" in the event someone unhappy with the final outcome decides to sue.

To many Wall Street Negotiators, the negotiation is a challenging and stimulating game and where the money is made.  One uses feints, posturing, and signaling to drive towards the most favorable position.  Need to make the other party sweat?  Delay returning those calls for a few days.  Or make sure you have people to play "good cop/bad cop".  Need to buy time?  Have the lawyers make a mountain out of a molehill on some minor term.  One can always cave in later if doing so is to one's advantage or one needs to change the tenor of the negotiations.  Brinksmanship can be good and remember to feign indifference because the perverse thing about negotiations is that often the person able to extract the most concessions is often the person who is perceived to care the least about whether the deal goes through or not.

Main Street Negotiation
Almost at the other end of the spectrum, this style is based on the premise that a good deal must be "win/win" and if a deal is fundamentally sound, there will be plenty of money on the table so focus on the dollars and don't sweat the pennies.  Main Street Negotiators are more interested in executing on the deal;  the negotiation is just something to be gotten through so one can get on with the business.

Therefore, to save time and legal fees, the first draft of the contract will tend to be start somewhere in the middle, the rationale being that that's where everyone will end up in the end anyways.  Also, the fewer contestable points, the smoother the negotiation is likely to go and subsequently the better the feelings during the negotiation process.  The tenor of the relationship is important because once the deal is done, one has to work with the opposing party to execute. Also, for many Main Streeters, especially entrepreneurs, business is not "just business", it's their life and there is quite a bit of personal involved.

For Main Street Negotiators, deals are not an everyday event and the money is perceived to made not by the deal but by the operational execution afterwards.  They don't perceive the process as a game;  they just want to get to the end so they can get onto the real work.

Clash of Expectations
Now when a Wall Street firm negotiates with another Wall Street firm or a Main Street firm with another Main Street firm, there generally isn't an issue.  Both parties are working off the same expectations and things usually work quite well.  The issue comes when a Main Street firm finds itself negotiating with a Wall Street firm.  With completely different negotiating styles and expectations, things can turn sour quickly, usually for the Main Street firm which is not used to the more rough and tumble style of Wall Street.

So who tends to practice Wall Street Negotiations?  Investment banks.  Private equity firms.  Venture capitalist firms.

The latter is what makes cynics of entrepreneurs.  Used to a win/win atmosphere, if they haven't been in a Wall Street Negotiation before, they can sometimes feel bullied and at a disadvantage during a term sheet negotiation.

So what can you do if you find yourself in a Wall Street Negotiation?
  • First off, realize that you ARE engaged in a Wall Street Negotiation - That means expect the first draft contract to be skewed.  Expect that you will have to fight to bring it to the center.  Don't concede minor points too quickly; you might need them as bargaining chips later. 
  • Get your own attorney and CPA - This will tend to mitigate the gamesmanship and give you someone on your team who talks the lingo of the other sides attorney and CPA.
  • You deal with the principals;  let the lawyers deal with the lawyers, CPAs with CPAs - You should drive the business terms.  Let your lawyer negotiate the legal terms.  Let the CPAs fight out the financial model assumptions.  Use the professionals to put some emotional distance between you and the negotiation and keep you out of the minutia and focused on the key points.
  • Don't let the emotions drive you - Don't vilify the other party.  They are not the spawn of Satan.  They're just doing their job which is to extract the most favorable terms for their firm.
  • Don't be afraid of pauses and silences - Don't read the worst into failure to return email or phone calls.  Don't feel like you have to fill every silence with words.  For some reasons, Americans hate silence;  I've seen several deals with Japanese firms where the Japanese won concessions just because the American negotiator couldn't shut up.
  • Try to establish a personal connection with the other party - Go to dinner, meet for drinks, play golf.  The more you can bring relationship into the picture, the more you can shift it towards a win/win direction.
  • Know your walk away points ahead of time - Make sure you know up front under what conditions you would walk away from the deal.  This also helps keep the emotions down and also makes you appear less eager, strengthening your position.

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