NEGOTIATION: DEALING WITH YOUR ANXIETIES NCURA Region VI/VII Spring Meeting Denver, Colorado April 2011 Randy, Draper, University of Colorado Boulder, Moderator Winnie Ennenga, Northern Arizona University, Panelist Jeri Muniz, University of Southern California, Panelist Patti Young, University of Colorado Boulder, Discussant

THINGS TO DO BEFORE THE CONTRACT ARRIVES Study (and know) your institution’s policies, procedures, and practices. Study (and know) state and federal rules and regulations. Identify and understand your resources. Understand your role and responsibilities. Assemble your references.

THINGS TO DO WHEN THE CONTRACT ARRIVES Acknowledge receipt of the contract and be honest about your timeline for the negotiation. Don’t make presumptions about the Principal Investigator, the project, or the Sponsor. Keep an open mind. Think positively. Learn whatever you can about the Sponsor. (websites; colleagues) Ask some questions: – Does your institution have an on-going business relationship with the Sponsor? – Is this a new or continuing project? – Has any precedent been set in existing agreements? (Review existing agreements.)

DON’T IGNORE THE PI Contact the Principal Investigator to learn: – The nature of the research (SOW) – The relationship of the PI with the Sponsor, if any – The PI’s needs and/or concerns about the negotiation – The PI’s timeline for starting the project – The amount of discussion and negotiation that already has taken place, if any

Identifying Problematic or Troublesome Clauses Federal – Whenever a law is passed it is codified within the United States Code (USC). – Agencies publish their respective interpretations, that is, the policies and procedures of the agency in implementing the statute, in the Code of Federal Regulations (CFR). Title 48 of the CFR is the Federal Acquisition Regulations (FAR).

Identifying Problematic or Troublesome Clauses Flow-through from Industry – FAR clauses for private sector for, e.g., termination, inspection, patents, copyrights, etc., are usually different than those included in contracts issued to educational institutions. – Beware of boiler plate agreements that basically restate a FAR clause without a FAR reference. Similar issues for flow-through from state agencies. (e.g. A-21 vs A-87).

Identifying Problematic or Troublesome Clauses Financial: – Payment Provisions – Documentation and Reporting – Ownership of Equipment – Audit

Identifying Problematic or Troublesome Clauses Legal: – Indemnification/Insurance – Choice of Law – Arbitration – Termination

Identifying Problematic or Troublesome Clauses Management: – Key Personnel/Approval of Staff – Technical Direction & Changes – Deliverables: Inspection and Acceptance

Identifying Problematic or Troublesome Clauses Academic: – Publication – Confidentiality and Non-Disclosure – Publicity/Disclosure of Sponsorship – Restricted, Proprietary, and Classified Research – Rights in Data – Intellectual Property/Work for Hire/Rights in Data

The Negotiation… Know Your University Know The Sponsor Know The Agreement Know The Issues Then… Build a Relationship

Get to know the Sponsor’s negotiator – Authority – Experience – Personality – Incentives – Availability Understand their motivations

Build a Relationship 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….

Method of Communication Determine the best mode of communication – 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

Method of Communication Thank them profusely Point out what you have done to make it easier for them 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 Read your as if you were receiving it

Method of Communication Telephone Thank them profusely Introduce everyone Ice Breaker Name drop (use connections if you have them!) Be proactive! Be the driver of the conversation Use references to promote positive conversation: o I think we’re close, we just have a few things we wanted to discuss o I understand your position o We share the same mission o Help me understand/Share with us o Get conceptual buy in If you get stuck in a circular conversation: o Move on o Suggest drafting language to send to them Summarize the conversation, agreements and action items

Method of Communication It’s all how you say it” Buzz words: Positive vs. negative o Positive o We look forward to, Collaboration, work together o Thank you for all of your time/efforts o Tie it back to the important research o We are confident we will be able to reach terms that will meet the needs of our organizations o Negative o Concerns o We cannot accept o Any form of can’t, won’t, don’t o In accordance with Policy o Anything that can be construed as rude, offensive, condescending, sarcastic

Explain Your Position Give them everything they need to say “yes” Explain your position – detail the “why’s” and “why nots” Provide “extreme” examples to demonstrate concepts Provide rationale Use the terms that already exist in your agreement 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” or educate

Expedite Your Negotiations 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 o Prime sponsors, legal team, others Know when to hold ‘em Risk Assessment o Pick your bargaining chips before you go into the discussion Be aware of when further discussions will not further your cause: o You’re talking to the wrong person (authority/capacity) o The person does not understand

Expedite Your Negotiations Don’t delay! o Be proactive and responsive Establish a timeline/deadline for response Press “0” Identify others o Google is a wonderful tool o Involve your PI o Utilize previous contacts