Disputes regarding intellectual property rights have become more time consuming, complex and expensive¹.
Property rights holders and the lawyers representing them must therefore understand how to negotiate disputes commercially and obtain value from the process, while still enforcing their rights.
That said, here are five practical tips to help you negotiate disputes more effectively.
1. Understand what constitutes value
Negotiations are intended to create value. Before commencing any negotiation, you need a clear understanding of your desired outcome and what constitutes ‘value’. This includes recognising the items you are prepared not prepared, to compromise on.
2. Plan your 'No Deal Option'
A firm No Deal Option (NDO) or Best Alternative to a Negotiated Agreement (BATNA) position is crucial. The NDO or BATNA is the most advantageous alternative for a negotiating party if negotiations are unsuccessful. Understanding your (and the other party’s) NDO helps to better assess the risks involved either pressing or compromising certain items.
3. Consider the starting offer carefully
A credible starting offer anchors the entire negotiation and has significantly impacts the negotiation outcome. To be credible, the starting offer should be consistent with a relevant accepted standard or measure (such as market value or actual damage or loss suffered), and not an arbitrary figure relevant to the position of the parties and their likely NDO. If you receive a starting offer from another party you do not consider credible, avoid making a counter-offer as it is likely to make reaching ‘value’ or your compromise position very difficult. Rather, encourage the other party to reconsider its first offer by explaining why the offer is not credible when referenced to a relevant accepted standard.
4. Take your time
Do not feel rushed or pressured to reach agreement immediately or with an arbitrary timeframe imposed by the other party (or your own organisation). A structured, thoughtful approach will minimise the risk of misunderstandings between parties and will increase the likelihood of obtaining value from the negotiation process.
5. Prepare properly
Obvious as it may seem, thorough preparation prior to commencing any negotiation is vital. This includes developing an in-depth understanding of the other party’s goals, NDO, interests and issues, and the preparation of multiple settlement options.
Don’t want to go it alone? Griffith Hack’s legal team frequently partners with in-house legal teams during negotiations to help commercialise and enforce company’s intellectual property.
Please contact a member of our team if you would like any assistance.
¹ Morrison & Foerster Report - Accessed 30/1/2020